1.The accused persons herein are charged with the offence of murder contrary to section 203 as read with 204 of the Penal Code, Chapter 63, Laws of Kenya. The particulars of the offence are that on 7/3/2017 at Maili Nne Market Eldoret West District, Uasin Gishu County jointly murdered Ali Kimoi Salim hereinafter referred to as ‘the deceased’.
2.The accused persons pleaded not guilty to the charge. The 1st accused was represented at the trial by Mr. Miyienda advocate and the prosecution was conducted by Ms. Emma Okok. The prosecution called a total of nine (9) witnesses to prove the ingredients of the offence constituting the following:(1)The death of the deceased.(2)The death of the deceased was unlawful.(3)That in causing death there was malice aforethought on the part of the accused.(4)That the accused was positively identified as the one who caused or participated in the killing of the deceased.
3.At the close of the prosecution’s case the defence counsel Mr. Miyienda in compliance with section 306 (1) of the Criminal Procedure Code made a submission of a no case to answer in favour of the accused.
4.The evidence adduced by the prosecution witnesses can be summarized as follows: On the material date, the deceased was stabbed to death outside his gate at around 12.30am. PW1 testified to hearing the commotion leading up to the death of the deceased and seeing the accused persons shutting the gate. The second accused was arrested in the compound of the deceased by the crowd that had gathered outside and he informed PW4 of the whereabouts of the murder weapon and the 1st accused person. A polythene bag with blood stained clothes and a black knife were recovered from the house and compound respectively. PW7, Mr. Richard Langat - the government chemist analyst confirmed that the blood stains from the first accused’s jacket (prosecution exhibit 3), knife (prosecution exhibit 1) and shoes (prosecution exhibit 6) matched the profile of the blood of deceased. At the police post the accused persons told PW8 that they thought the deceased was a thief and attacked him. Notably, none of the witnesses witnessed the accused persons stabbing the deceased.
5.It is against this background Mr. Miyienda learned counsel for the defence submitted that there was no case to answer pursuant to section 306 (1) of the Criminal Procedure Code. Mr. Miyienda in his submissions invited the court to appraise the evidence of the nine (9) witnesses relied upon to prove the charge against the accused.
6.Counsel submitted that the incident took place at 12.30am. PW1 said there was commotion outside the gate and that the deceased was lying outside the gate. PW2, PW3, PW5 and PW8 confirmed the murder took place outside the gate. He further submitted that PW1 merely said ‘’There was light’’ but in cross - examination said ‘’I used a regular torch to light outside to see ". PW5 said when cross -examined that "There was lighting outside the gate but there was darkness inside the gate. Near the gate there are lighting bulbs and street lights about 15 metres from the gate". Pw6 told the court "it was dark" in his examination-in-chief but in cross -examination he said, ‘’there was no light outside the gate.’’ This evidence confirmed that indeed there was no light outside the gate where the attack took place thus showing that identification was difficult under the circumstance shown above.
7.It is the 1st accused person’s case that none of the witnesses identified the 1st accused David Gituma attack the deceased. The evidence of PW6 discloses that he was the first person to come to the scene and he says he confirmed that he saw James Lonyaman, the 2nd accused person stab the deceased. That he, together with his friend Abdi, recognized the voice of the second accused and they saw him walk out of the compound through the gate and he was restrained by the crowd.
8.The question here is whether the 1st accused, David Gituma Kaithama was properly and positively identified by any of the prosecution witnesses at the close of the prosecutions’ case. Citing Turnbull vs Republic (1977) QB224 where the guidelines for identification were set out, counsel submitted that the court must examine the circumstances in which the identification by each witness can be made which circumstances include;
- Length of time accused was observed by the witness.
- The distance at which the witness was from the accused.
- Nature and state of the light.
- Length of time elapsed between the original observation and the subsequent identification to the police.
9.He maintained that the 2nd accused directed PW5 to the 1st accused persons’ house where the blood stained clothes which he alleges got stained as the 1st accused had run out to assist the deceased as per the testimony of PW6 where he stated that 23 people ran out of the compound to assist the deceased.
10.The 2nd accused person (A2) entered into a plea deal, pleading guilty to the lesser charge of manslaughter. He made the statement that;
11.The 2nd accused’s admission that he committed the act of stabbing the deceased mistakenly absolves the 1st accused of any involvement. It was incumbent upon the prosecution to tender evidence to show that A1 was an accomplice to the actions of A2 who owned up to the killing of the deceased. The prosecution did not do so.
12.Citing Ramanlal Trambaklal Bhatt vs Republic EALR (1957) EA 332 counsel submitted that all the evidence given by prosecution does not link the 1st accused to the murder. If this Court is to put the 1st accused on his defence, it will be asking him to tell the court that the murder was committed by A2 who has already owned up to the act and has been convicted. Counsel submitted that the prosecution has not established motive as against the 1st accused and as such the accused person should be acquitted under section 306 of the Criminal Procedure Code.
13.The starting point will be to look at the applicable law and cases on a prima facie case. This is then followed by an evaluation of the prosecution evidence with the legal principles to make a finding on a prima facie case. The Criminal Procedure Code, at section 306 (1) provides as follows:
14.In Mozley and Whitley’s Law Dictionary 11th Edition a prima facie case is defined as:
15.In determining whether there exists a prima facie case, one should bear in mind the cardinal principle on the burden of proof, that it is the duty of the prosecution to establish the guilt of the accused for the offence charged beyond reasonable doubt. See Woolmington vs DPP  EA 462 at 481.
16.Section 107 (1) of the Evidence Act Cap 80 of the Laws of Kenya provides that:
17.In discussing the issue further Lord Parder C.J in the case of Sanjil Chattai vs The State  39 WLR 925 stated thus:
18.Kenyan courts have heavily relied on the legal principles in the celebrated case of R.T. Bhatt v Republic  EA 332 – 334 & 335 to define what constitutes a prima facie case. The court of Appeal of Eastern Africa stated thus:
19.The legal principles which run through the case cited revolves around sufficiency of evidence capable of establishing the ingredients of the offence the accused is charged with. Secondly, a mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence. Thirdly it is evidence adduced by the prosecution that a reasonable tribunal properly directing its mind would convict the accused in absence of any explanation when called upon to answer or put on his defence.
20.In the present case, the testimony of each of the nine (9) witnesses called by the prosecution has been evaluated against the charge of murder facing the accused. The standard of proof required at this stage is not that of beyond reasonable doubt as the court has not had the advantage of the defence.
21.One of the essential elements of the offence of murder is that one has mens rea to commit the offence. In so far as the evidence adduced is concerned, the element of malice aforethought has not been shown to exist. There is also no motive that can be derived from the evidence.
22.On the actus reus, it is evident that there were no witnesses who saw the 1st accused person commit the offence. The evidence before the court is circumstantial at best.
24.In its earlier decision in Mwangi and Another vs Republic (2004) 2 KLR 32, the Court of Appeal exhorted that:
25.In examining the chain of evidence linking the accused to the offence, I find that there is a weak link, that being that his co-accused was established to have committed the offence of manslaughter. From the medical report it is evident that the deceased died from a cut wound, not several cut wounds or stabs. The 2nd accused having confessed of committing the offence, it would be an injustice to try or to convict another accused person of the same offence, especially where the conviction rests on the shoulders of circumstantial evidence.
26.In my view for the prosecution to demonstrate existence of a prima facie case under Section 107 (1) and 108 of the Evidence Act as read with Section 306 (2) of the Criminal Procedure Code, it would require evidence of a much higher quality than there is on record as stipulated by PW1, PW2, PW3, PW5 and PW8
27.In light of the doubt entertained, I consider the facts and circumstances of the case to lean towards a motion of no case to answer in line with Section 306 (1) of the Criminal Procedure Code. In the result the charge discloses an offence committed contrary to Section 203 of the Penal Code but falls short of identifying the accused as the one who committed the offence. I therefore find that the accused has no case to answer and accordingly I acquit him of the offence under the law.