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Republic v Mubia (Criminal Case 69 of 2015) [2022] KEHC 16684 (KLR) (16 December 2022) (Ruling)
Neutral citation:
[2022] KEHC 16684 (KLR)
Republic of Kenya
Criminal Case 69 of 2015
PJO Otieno, J
December 16, 2022
Between
Republic
Prosecution
and
Philip Mubia
Accused
Ruling
1.The charge having been registered on the October 30, 2015, trial did not commence till the 4/6/2018 when PW1 testified. Matter adjourned to 23/7/2018 when PW2 and 3 were heard and matter adjourned to enable the prosecution call other witnesses.
2.Thereafter the matter took a hiatus till the 22.9.2022 when the defence agreed with the prosecution that the autopsy report; treatment notes and X-ray Report and receipt be produced by consent and without calling the makers and marked as P.Exh. 1, 2 & 3 respectively. With such production the prosecution’s case was closed.
3.The defence has filed written submissions whose gist is that there was mistrial as the original statement recorded from witnessed had not been availed on the basis that the police file got lost. To the defence the order given on the 4.6.2018 was set to be complied hence there had been a mistrial. On the merits the defence takes the view that the evidence of the three witnesses was insufficient to establish a prima facie case as known in criminal law.
4.The prosecution did not file any written submissions and sought to rely on the evidence on record.
5.The court has perused the court file and noted that the court having directed that the original statements be availed for cross examination by the defence, on the 23.7.2018 and after hearing both sides the court directed that since the police file had been lost, the defence would cross examine in the basis of available copies. The defence counsel then did proceed with the other two witnesses availed without raising the question of need of original statements.
6.This court finds that the defence robustly participated at the trial by extensive cross examination and that no denial of fair hearing was occasioned.
7.On the merits, there is cogent evidence by PW1 as corroborated by that of PW2 and the three exhibits produced which on a prima facie basis connect the accused with the injuries suffered by the deceased. For that prima facie proof, the Accused is detained to have a case to answer and is put on his defence to give him a chance to rebut the evidence.
8.Defence hearing on 7.3.2023.
DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 16TH DAY OF DECEMBER 2022.PATRICK J. O. OTIENOJUDGEIn the presence of:No appearance for Ombito for the AccusedMs. Chala for the ProsecutionCourt Assistant: Polycap Mukabwa
