AT NAKURU

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

VERSES

STEPHEN NDIRANGU MAINA..............................2^ND ACCUSED

RULING

The 1^st accused person is the mother to the 2^nd accused person. They are jointly charged that in the night of 17^th and 18^th October, 2008 at Kilimanjaro village, Shamata Location in Nyandarua they murdered Peter Ndemi Wamae, the deceased. The prosecution has closed its case after calling seven witnesses. The question to be determined at this stage is whether the evidence presented by the seven prosecution witnesses discloses a prima facie case against the accused persons. In other words, is the evidence on record such that the accused persons may be convicted if they elected not to call evidence in rebuttal? 

i)    that the deceased occupied a room in a building owned by the 1^st accused persons

iii)  that a blood stained panga was retrieved by the 1^st accused person from the fence

v)   that a pair of jeans trousers was recovered from the 1^st accused person’s house

 It is in evidence that the deceased was suspected in the village as a chicken thief. Indeed when his body was found under the bed, a chicken whose feathers had been plucked in readiness to be prepared as a meal was also found in the room. It was suspected that he may have been killed due to his involvement in stealing chickens. I have stated that there was no eye witness to the killing of the deceased. The first report, according to Zipporah was from a neighbour who informed her that the deceased was dead. It is not clear how this neighbour knew of the death of the deceased. Since the so called neighbour did not testify, this court did not have the benefit of that evidence, which remains a hearsay.

It is also in evidence that the news of the deceased person’s death was first broken to the 1^st accused by the same Zipporah. Zipporah went to the 1^st accused person’s home which was about 2 miles from the house where the deceased was found. When the two reached the scene and found a blood stained panga, it is once again Zipporah, who advised the 1^st accused person to hide it in the fence so that it was not taken away. Zipporah observed that when they found the panga, the 1^st accused was surprised as she identified the panga as hers which had been stolen.

 Although the room occupied by the deceased, in which his body was found belonged to the 1^st accused person and although the 2^nd accused person was the deceased person’s neighbour, there is no evidence that any one of them was seen with the deceased prior to his death   As a matter of fact, the 1^st accused lived 2 miles from the scene. There is no evidence that the chicken found in the room belonged to any of the accused persons. The running away of the 2^nd accused person on seeing police officers, cannot, per se be evidence of guilt.

Similarly, the finding of a pair of jeans trousers in the 1^st accused person’s house is not sufficient evidence for, one, there was no special mark on the jeans to distinguish it from any other. Two, it is not explained how the trousers were found. Theuri simply stated that the trousers were found in the 1^st accused person’s house without saying where in the house. Yet it was the testimony of P.W.6 Snr. Sgt Hesbon Maina Mwangi that the pair of trousers were taken to the police station by the deceased’s father (Theuri).

The blood stained panga was taken to the government analyst. No results were tendered in evidence to link the blood on it with the deceased and/or the accused persons. It should be obvious from the foregoing that the prosecution evidence presented at the closure of the prosecution case does not meet the threshold of prima facie case as enunciated in the famous case of Ramanlal Trambaklal Bhatt Vs. Republic (1957) EA 332.

Instead I find the conduct of the 1^st accused person in consistent with that of a person who had committed murder. She did not appear to be aware of the deceased’s death until she was alerted by Zipporah. It was infact the 1^st accused person who went to Theuri’s home to inform him of his son’s death.

The circumstantial evidence does not, as presented, irresistibly point exclusively to the accused persons. They were not the only people who were predisposed to commit the crime.

For these reasons, it will serve no useful purpose to require the accused persons to defend themselves. They are acquitted and shall be set free forthwith unless lawfully held.

W. OUKO

JUDGE