REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

CRIMINAL CASE NO. 5 OF 2015

REPUBLIC......................................................PROSECUTOR

Versus

RULING

The accused herein PETER MAINA MUGEREKI was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code (Cap 63). Briefly the facts of the case were that on the night of 6^th and 7^th May 2015 at Ngong Town, Kajiado North Sub-County within Kajiado County the accused and deceased were having a drink together in a bar. In the course of time the accused and deceased fell into an argument, they both parted ways and one of the prosecution witnesses found the deceased lying beside the road having sustained multiple injuries.

The accused was later sought by the police who conducted investigations and arraigned him in court to face the charge of murdering JAMES MWAI CHEGE, hereinafter referred as the deceased. The 1^st accused was presented at the trial by learned counsel Mr. Itaya while the prosecution was conducted by Mr. Akula, the Senior Prosecution Counsel.

The prosecution called a total of ten (10) witnesses. The following issues were not in dispute:

The death and identity of the deceased as depicted in the testimony of PW1, PW4 who participated in the postmortem at Kenyatta Hospital Mortuary. The contents of medical legal autopsy report as compiled by Dr. Muchelenganga and Dr. Walong. That the body they examined was that of the deceased. In their positive findings the deceased suffered severe head injury due to blunt force trauma.

PW3 ANTONY MWANGI told this court that the accused was his employee and during the lifetime of the deceased both of them were close friends. PW3 further told this court that the accused spent part of the day on the 6/5/2015 at his work station. He further confirmed that on the 7/7/2015 accused reported to work from 7.00 am to 13.00 pm.

PW2 LUCY WANGARI testified that on the 7/5/2015 they had argument with the accused over a pair of shoe sold to him but not yet paid for. She further stated that as a result of the difference a fight ensued where accused armed with a piece of timber inflicted head injuries.

PW5 Nyongesa gave evidence that the deceased and accused lived together at Ongata Rongai.

The provisions of section 306 (1) of the Criminal Procedure Code believes this court to consider the charge and evidence at the conclusion of the prosecution case to determine whether a prima facie case has been established. In the event the evidence and materials presented satisfies the test of a prima facie case the accused is to be called upon to state his defence or answer the charge.

The threshold of a prima facie case is defined in by H. Black Elal in Black’s Law Dictionary 1190 6^th Edition 1990 as “evidence good and sufficient on its face. Such evidence as, in the judgement of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party’s claim or defence and which if not rebutted or contradicted, will remain sufficient.”

In the law mark case of R.T. Bhatt v Republic [1957] EA 332 held interalia that “a prima facie case would not be established by a mere scintilla of evidence or by any amount of worthless, discredited prosecution evidence, but it is that case which prima facie evidence adduced is capable that a reasonable tribunal properly directing its mind on the law and evidence may convict the accused person, if no evidence or explanation is offered by the accused or defence.”

In applying the above principles to the evidence at the close of the prosecution case i make the following findings:

That the evidence establishes the three ingredients of the charge of murder contrary to section 203 of the Penal Code. It is therefore incumbent upon the accused to be placed on his defence to offer an explanation or defence in rebuttal.

For the foregoing reasons the provisions of section 306 (2) as read with section 307 of the Criminal Procedure Code explained to the accused person.

Dated, delivered in open court at Kajiado on 5^th day of December, 2016.

………………

R. NYAKUNDI

JUDGE

Representation:

Accuse present

Mr. Akula for Director of Public Prosecutions

Mr. Itaya for the accused present

Mr. Mateli Court Assistant