Republic v Benard Nandi [2015] KEHC 2032 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

CRIMINAL (MURDER) CASE NO. 3 OF  2009

REPUBLIC…………………………………………PROSECUTOR

VERSUS

BENARD NANDI………………………………………ACCUSED

R U L I N G

1.      The accused person herein, Benard Nandi is before this court on one Count of murder contrary to section 203 as read with Section 204 of the Penal Code, the particulars thereof being that on the 3rd day of January, 2009 at Shihungu Village Lubao Sub-Location Kambiri Location in East Kakamega District of Western Province murdered PETER WAMWAYI. The accused pleaded not guilty and the case has been ongoing since 18. 11. 2010 when PW1, Jackson Makamu testified.

2.      The prosecution called at total of 8 witnesses whose evidence was geared towards proving that the deceased was killed through the unlawful acts of the accused person herein and with malice  aforethought.  PW1 told the court that he was together with other young men on their way from Lubao at about 2. 30pm on 03/01/2009 when they were attacked by a group of about 12 young men among them the accused.  That it was the accused who stabbed the deceased with a knife on the right hand side of the chest.   That as a result of that attack the deceased fell down and started screaming while he himself rushed to the house of one Timona nearby.  PW1 stated that he had also been assaulted and was weak.  Pw1 stated that when he later sought treatment at Shikusa Health Centre, he found out that the deceased had already died.  PW1 also stated that he knew the accused person before.

3.      Dr. Jeremiah Kinuthia testified as PW7. He produced the post mortem report which was filled and signed by Dr. Oreke who conducted the post mortem examination on the body of the deceased on 07/01/2009.

4.      According to the doctor’s evidence the deceased’s white T-Shirt was blood stained on the right anterior and also posterior.  There was also a stab wound about 3 cm long on the right chest.  The wound had smooth edges.  In the doctor’s opinion the cause of death was cardiopulmonary arrest due to haemorrhagic severe anaemia secondary to penetrative chest anaemia.  The certificate of death was produced as P exhibit 1.

5.      After  carefully considering the above evidence together with the evidence of the other 6 prosecution witnesses, I am satisfied that the prosecution has established a prima facie case against the accused person requiring him to defend himself against the charge of murder.  I now put on him on his defence.

6.      In defending himself the accused may give either sworn or unsworn evidence.  If he gives sworn evidence, he will be asked questions both by the prosecution and the court.  However, if he gives unsworn evidence nobody will ask him any questions.  Finally if the accused so wishes, he can exercise his right of silence and let the court decide the case on the evidence that is before it.  In each case, the accused has a right to call witnesses.

7.      I now call upon the accused person to indicate to the court which of the 3 options he will take in defending himself.

Orders accordingly.

Ruling delivered dated and signed in open court at Kakamega this 30th day of September 2015

RUTH N. SITATI

JUDGE

In the presence of:

Mr. Omwenga for The State

Mr. Shifwoka for Elung’ata for Accused

Mr. Okoiti - Court Assistant