Republic v Mutua & 3 others (Criminal Case 6 of 2014)  KEHC 11610 (KLR) (15 February 2022) (Ruling)
Neutral citation:  KEHC 11610 (KLR)
Republic of Kenya
Criminal Case 6 of 2014
JN Onyiego, J
February 15, 2022
James Mutua alias Osama
Benjamin Mwaduka Tole
Fredrick Zighani Tole alias Mwafrika
1.Accused persons herein James Mutua alias Osama (1st accused), Benjamin Mwaduka Tole (2nd accused ) Mwaikwasi Mwanduka ( 3rd accused) and Fredrick Zighani Tole alias Mwafrika (4th accused) were originally charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. Particulars are that, on the February 17, 2014 at Riata farm in Taveta Sub County in Taita Taveta County, jointly with others not before court while armed with bows and arrows murdered Gerald Okello Adero.
2.Upon entering a plea of not guilty, hearing commenced with the prosecution calling a total of 13 witnesses. During the pendency of the proceedings, accused one absconded. He has been at large to date. The information was however amended and the case proceeded with the remaining accused persons.
3.Briefly, Pw1 Jacob Odongo Odero a brother to the deceased was on February 17, 2014 at the farm of their brother Essau Opiyo (Pw2) which had been allocated to him by the government. While in the farm with his brother Gerald Okello now deceased and other workers, they were attacked by a group of people who were against the allocation of the farm to Gerald Essau.
4.That as a result of the attack, Gerald sustained fatal injures out of arrow shots. He however never identified the attackers specifically. Pw2 Essau Opiyo Odongo the registered owner of the disputed farm in Taita Taveta gave a detailed testimony on how, his brothers Pw1 and the deceased plus other workers he had engaged in the farm to cultivate and plant were attacked by people armed with bows and arrows. That he was shot with an arrow on the left elbow while the deceased sustained fatal injures out of the said attack by use of arrows. He stated that during the attack those who were in the front line were the accused persons being people he knew very well before.
5.Pw3 Ali Danson a driver to Pw2 was in company of Pw2 when they were attacked at the farm of Pw2. He stated that he saw the accused persons as they were in the front line out of the 40 people who had confronted them.
6.Pw4 one Crispin chief Riata stated that, on the material day, he was cultivating his farm which was allocated to him by the government when he heard screams from Pw2’s farm. On responding, he saw several people armed with bows and arrows. According to him, accused 4 was among those people who attacked the people working in Pw2’s farm.
7.Pw5 Paul Otieno and Pw6 Wilson Otieno were at the farm of Pw2 when several people intruded Pw2’s farm while armed with bows and arrows. That some workers among them the deceased were injured. They however could not identify the hooded people.
8.Pw7 scenes of crime personnel visited the scene and took photographs. Pw8 I P Lilian conducted identification parade in respect of accused 4 now accused 3 who was identified by Pw4. Pw9, Pw10 and 11 all police officers visited the scene and recovered some exhibits besides arresting the accused persons.
9.Pw12 is the doctor who did a post mortem examination on the deceased’s body and ascertained the cause of death was bleeding as a result of arrow penetration. Pw13 one Catherine Serah government chemist analyst did analyse various arrow heads presented for analysis whether they had any traces of poison. In her examination none had traces of poison.
10.After going through the prosecution evidence in chief and cross examination arising therefrom, am satisfied that prosecution have established a prima facie case in conformity with the holding in the case of Bhatt Vs Republic (1957) EA 332 where the court held that a prima facie case does not mean a case proved beyond any reasonable doubt, since at this stage, the court has not heard the evidence for the defence. Accordingly, it is my finding that there is sufficient evidence to warrant all accused persons put o n their defence pursuant to section 306 of CPC. Accused persons have a right to give sworn or unsworn statement and if any of them has any witness to call he shall be at liberty to do so.
DATED SINGED AND DELIVERED VIRTUALLY AT MOMBASA THIS 15TH DAY OF FEBRUARY 2022.J.N.ONYIEGOJUDGE