Republic v Cheruiyot (Criminal Case 21 of 2017)  KEHC 14639 (KLR) (2 November 2022) (Ruling)
Neutral citation:  KEHC 14639 (KLR)
Republic of Kenya
Criminal Case 21 of 2017
RL Korir, J
November 2, 2022
Isaiah Kipkemoi Cheruiyot
1.The accused person was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code, cap 63 Laws of Kenya. The particulars of the offence were that on the 26th day of November, 2017 at Murany Village in Kembu Location within Bomet County, murdered Enock Cheruiyot.
2.The accused person took plea on July 12, 2018before Hon. Muya J. and pleaded not guilty to the charge of murder. The prosecution called six (6) witnesses who testified, amongst them, relatives of the deceased. The prosecution’s case was that the accused beat the deceased, his seven-year-old nephew, who was later found by PW2 lying lifeless along the roadside. The deceased was later pronounced dead on arrival at the hospital. Section 107(1) of the Evidence Act cap 80 of the Laws of Kenya provides that:-
3.This burden is vested in the prosecution in criminal trials and at the close of their case, the court must consider the evidence before it and determine whether a prima facie case has been established. section 306 of the Criminal Procedure Code provides:-(1)When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence, shall after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit recording a finding of not guilty.(2)When the evidence of the witnesses for the prosecution has been concluded the court, if it considers that there is evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each such accused person of his right to address the court on his own behalf or make unsworn statement and to call witnesses in his defence…..
4.In Republic v Abdi Ibrahim Owl  eKLR a prima facie case was defined as follows:-
5.At this point of the trial, this court is not required to give a well-reasoned decision as to the guilt or innocence of the accused person. That is preserve of the judgement that will be eventually rendered at the close of the defence case should this court find that he has a case to answer. Indeed, Ojwang J. (as he then was) in Republic v Karanja Kiria, Criminal Case Number 13 of 2004, Nairobi  eKLR stated thus:-
6.It follows then that thiscourt is enjoined to merely scrutinize the evidence on Record and make a determination as to whether the ingredients of the offence at hand have indeed been established by theprosecution or not, so that even without a proper defence, theaccused may be convicted at this stage.
7.The guiding principles to be followed in considering whether the accused person has a case to answer at the close of the prosecution’s case were succinctly outlined by the Federal Court of Malaysia when discussing section 180 of their Criminal Procedure Code which is similar to section 306 of our law in the case of PP v Mohamed Radzi bin Abu Bakar  6MLJ 399 as follows:-
8.The Offence of murder under section 203 is defined as, “When any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” This means that for the offence of murder to be proven, three elements must be established as follows:-(i)Death of the deceased(ii)That the death was occasioned by the unlawful acts or omissions of the accused; and(iii)That there was malice aforethought on the part of the accused.
9.I have evaluated the evidence adduced by the prosecution against the above ingredients and in accordance to the guiding principles gleaned from the jurisprudence cited above. It is not in doubt that the victim died as demonstrated by the evidence of the witnesses and the Post-Mortem Report. The cause of death was indicated as respiratory failure. I have considered the evidence of PW4 and the circumstantial evidence now on record. With respect to section 206, I have considered the evidence contained in the Post-Mortem Report and the conduct of the accused after the incident.
10.Following the above, I am satisfied that the prosecution has established a prima facie case, against the accused. I find that the accused has a case to answer and is accordingly put on his defence.
RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 2ND DAY OF NOVEMBER, 2022...........................R. LAGAT-KORIRJUDGERuling delivered in the presence of Mr. Njeru for State, Mr. Leteipa holding brief for Mr. J.K.Koech for Accused and Kiprotich (Court Assistant)