Republic v Dickson Mwenda [2019] KEHC 5587 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CRIMINAL CASE NO. 82 OF 2014

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

VERSUS

DICKSON MWENDA.....................................ACCUSED PERSON

RULING

Case to answer

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 of the Laws of Kenya. The prosecution closed its case on 10th July 2019; after having called 5 witnesses. Counsel for the state intimated that the state does not wish to submit on no case to answer. The defence counsel on the other hand, was given 7 days to file submissions but to date none has been filed. Now I should determine whether or not the prosecution has established a prima facie case against the accused as to call upon him to enter his defence.  This is the question that now falls for determination before this court. See Section 306 of the Criminal Procedure Codewhich provides that:-

306. (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, record 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, either personally or by his advocate (if any), to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether it is intended to call any witnesses as to fact other than the accused person himself; and upon being informed thereof, the judge shall record the fact.

(3) If the accused person says that he does not intend to give evidence or make an unsworn statement, or to adduce evidence, then the advocate for the prosecution may sum up the case against the accused person; but if the accused person says that he intends to give evidence or make an unsworn statement, or to adduce evidence, the court shall call upon him to enter upon his defence.

2. A Prima facie case has been said to be;

‘’…one which a reasonable tribunal properly directing its mind to the law and the evidence would convict if no explanation is offered by the defence’’. See RAMANLAL BHATT vs. R (1957) EA 332(CA)

3. The accused is facing a charge of murder. Five witnesses gave evidence for the prosecution. Upon perusal of the said evidence adduced, there is a prima facie case established against the accused. Accordingly, the accused is hereby placed on his defence. The accused person has been duly informed of his right to address the court, either personally or by his advocate, to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses in his defence. The accused or his advocate is required to state whether it is intended to call any witnesses as to fact other than the accused person himself. Section 306 of the CPC complied with. It is so ordered.

Dated, signed and delivered in open court this 23rd day of July, 2019.

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F. GIKONYO

JUDGE

IN PRESENCE OF

Namiti for state

Mokua for accused – Nyenyire holding brief

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F. GIKONYO

JUDGE