Republic v Elizabeth Mugoywa [2017] KEHC 9505 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CRIMINAL DIVISION

CRIMINAL CASE NO. 15 OF 2015

REPUBLIC.........................................................RESPONDENT

VERSUS

ELIZABETH MUGOYWA........................................ACCUSED

RULING

1. The accused ELIZABETH MUGOYWA was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code the particulars of which were that on the 24th day of January, 2015 at Tassia Mabatini Estate within Nairobi County murdered CHRISTINE WANYAMA.

2. She pleaded not guilty to the said charges and to prove its case, the prosecution called a total of six (6) witnesses and at the close of the prosecution case parties were invited to make submissions as to whether the State had established a prima facie case to enable the court place the accused on her defence.

SUBMISSIONS

3. On behalf of the prosecution it was submitted that the prosecution had established a prima facie case through the evidence of PW1 and PW2 while on behalf of the defence it was submitted that the offence was committed under the heat of passion caused by sudden provocation and therefore the accused can only be found guilty of manslaughter.

4. At this stage, the issue is not whether or not the prosecution has established a case against the accused person beyond reasonable doubt but whether a case has been made to justify calling upon the accused person to offer an explanation as was stated in the case of REPUBLIC v JAGJIVAN M. PATEL & Others (1) TLR as follows:-

“All the court has to decide at the close of the evidence in support of the charge is whether a case is made out against the accused just sufficiently to require him to make a defence, it may be a strong case or a weak case.  The court is not required at this stage to apply its mind in deciding finally whether the evidence is worthy of credit or whether if believed it is weighty enough to prove the case conclusively beyond reasonable doubt.  A ruling that there is a case to answer would be justified in my opinion in a border line case where  the court, though not satisfied as to the conclusiveness of the prosecution evidence, is yet of the opinion that the case made out is one which on full consideration might possibly be thought sufficient to sustain a conviction.”

5. From the evidence tendered by the prosecution and in particular the evidence of PW1 and PW2 and without saying much thereon I am satisfied and find that the prosecution has established a prima facie case to enable the court place the accused on her defence which I hereby do.  The accused is advised on her rights vide Section 306 of Criminal Procedure Code.

DATED, DELIVERED and SIGNED at Nairobi this 4thday of October, 2017.

.......................

J. WAKIAGA

JUDGE

In the presence of:-

Mrs. Kinoti for the State

Mr. Memusi for the accused

Accused present

Tabitha   court clerk