Republic v Francis Makori Ombati [2017] KEHC 2570 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL CASE NO. 75 OF 2013

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

VERSUS

FRANCIS MAKORI OMBATI....................................ACCUSED

RULING

1. The accused FRANCIS MAKORI OMBATI was charged with the offence of murder contrary to Section 203as read with Section 204 of the Penal Code the particulars of which were that on the 3rd day of July, 2013 at Kayaba slum in Industrial Area within Nairobi County murdered one VINCENT AMBUYA.

2. He pleaded not guilty to the said charge and to prove its case against the same the prosecution called a total of seven (7) witnesses and at the close of the prosecution case, parties were invited to make submissions on whether the prosecution had established a prima facie case to enable the court place the accused on his defence.

SUBMISSIONS

3. On behalf of the accused it was submitted that the prosecution case was full of contradictions as whether the chair produced is the one that had been used to hit the deceased.  It was further submitted that the prosecution had failed to establish the motive for the offence.  On behalf of the prosecution it was submitted that the accused was not in any danger to warrant the use of the chair on the deceased.  It was submitted that the accused was placed at the scene.

4. In the case of REPUBLIC v SAMWEL KARANJA KURIA  CRIMINAL CASE NO. 130 OF 2004 Nairobi (2009) eKLR Justice J.B Ojwang (as he then was) set out what to be considered at this stage in the following terms:-

“The question at this stage is not whether or not  the accused is guilty as charged but whether there is such cogent evidence of his connection with the circumstances in which the killing of the deceased occurred, that the concept of prima facie case dictates as a matter of law that an opportunity be created by  this court  for the accused  to state his own case regarding the killing. The governing law on this point is well settled”………

In the Court of Appeal No. 77 of 2006 the Court of Appeal expressed that too detailed analysis of the evidence, at no case to answer stage is undesirable if the court is going to put the accused onto his defence as too much details in the trial court’s ruling could then compromise the evidentiary quality of the defence to be mounted.”

5. From the evidence placed before the court and without committing further therein so as not to compromise the accused’s intended defence, if any, I am satisfied  that a prima facie case has been established by the prosecution to enable me place the  accused on his defence which I hereby do.  The accused is therefore advised of his rights under Section 306 of Criminal Procedure Code.

DATED, DELIVERED and SIGNED at Nairobi this 11th  day of October, 2017.

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J. WAKIAGA

JUDGE

In the presence of:-

Mrs. Kinoti for the State

Mr. Saenyi for the Accused

Accused person present

Court clerk Tabitha