Republic v Farah alias Issa [2023] KEHC 26206 (KLR)

Republic v Farah alias Issa (Criminal Case E085 of 2022) [2023] KEHC 26206 (KLR) (Crim) (4 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26206 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case E085 of 2022

K Kimondo, J

December 4, 2023

Between

Republic

Prosecutor

and

Mahadh Farah Alias Issa

Accused

Ruling

1. The accused is charged with murder contrary to section 203 as read with section 204 of the Penal Code.

2. The Director of Public Prosecutions informs the High Court that on the 11th September 2022 at Maida Apartments, Eastleigh Area, Starehe Sub-County within Nairobi County he murdered Abdifatha Hassan Baare alias Mrefu.

3. He pleaded not guilty. The prosecution lined up ten witnesses. I am now called upon to determine whether that corpus of evidence is sufficient to place the accused on his defence.

4. The Republic also relies on written submissions dated 31st August 2023. The accused originally lodged detailed submissions and precedents dated 18th September 2023 through his former counsel, Mr. Kanyoko. On 4th October 2023, his new counsel, Mr. Omari, withdrew those submissions. He has now presented a fresh set of submissions dated 30th October 2023. Upon perusal, I note that save for the name of the law firms, the latter submissions are largely word for word with the earlier submissions.

5. According to learned counsel for the accused, the prosecution’s case is built atop weak circumstantial and contradictory evidence. He prayed that the accused be acquitted at the earliest. The position of the learned Prosecution Counsel, Ms. Kigira, and that of the learned counsel for the victim’s family, Mr. Akello, is that on the totality of the evidence, the accused has a case to answer.

6. My finding is as follows. It bears repeating that the accused is still deemed innocent at this stage. Furthermore, the inquiry at this juncture is merely to establish if a prima facie case has been made out requiring a rebuttal from the accused.

7. According to some witnesses, both the deceased and the accused were water vendors in Eastleigh, Nairobi. They were also not strangers; the deceased having accommodated the accused in his house some time back.

8. PW1 testified that a dispute arose on 11th September 2011 as to who between the accused’s and the deceased’s water bowsers was entitled to supply water to Maida Apartments. At some point, a scuffle erupted between the deceased and the accused but they were separated. There was also another “commotion” between “sons of the deceased and a conductor of the accused and another Somali man”. PW1 then heard groans emanating from the deceased. He claimed that he saw the accused running away from the scene.

9. I have also paid heed to the evidence of PW2, PW3, PW4 and PW5 surrounding the incident. The defence has pointed out a number of discrepancies between the evidence of some prosecution witnesses. What is clear is that the deceased was rushed to a local hospital where he succumbed the same day to a sharp injury to the chest.According to the pathologist, Dr. Simon Omuok (PW9), the cause of death was “excessive haemorrrage from chest injury due to a single stab wound”.

10. Applying the precedents in Bhatt v Republic [1957] E.A. 332 and R v Kipkering arap Koske & another 16 EACA 135 (1949); and, upon the digest of the evidence of all the ten witnesses, I find that the Republic has established a prima facie case against the accused.

11. Accordingly, under the provisions of section 306 (2) of the Criminal Procedure Code, I now place the accused on his defence.It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 4TH DAY OF DECEMBER 2023. KANYI KIMONDOJUDGERuling read virtually on Microsoft Teams in the presence of-Accused.Ms. Kigira for the Republic instructed by the Office of the Director of Public Prosecutions.Mr. Akello watching brief for the victim’s family instructed by Sheikh & Shariff Advocates.Mr. E. Ombuna, Court Assistant.