Republic v Joseph Maina Nderi [2017] KEHC 9733 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

HIGH COURT CRIMINAL CASE NO 92 OF 2014

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

VERSUS

JOSEPH MAINA NDERI...................................ACCUSED

RULING

1. The accused JOSEPH  MAINA NDERI 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 28th day of September, 2014 at Kinyanjui Estate Dagoretti District within Nairobi County murdered WILLIAM LITUNYA AMBUNDA.

2. He pleaded not guilty to the said charges  and to prove its case against him the prosecution called a total of six (6) witnesses and at the close of the prosecution case whereas the defence made written submissions on whether a prima facie case had been proved against the accused, the prosecution opted not to make any submissions.

3. On behalf of the accused it was submitted that the accused had not been placed at the scene of murder and had not been identified as the one who murdered the deceased.

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 before the court and without going into details thereof so as not to prejudice the accused defence I am satisfied that there is enough circumstantial evidence tendered by the prosecution to enable the court put the accused on his defence which I hereby do. The accused is therefore advised of his rights under Section 306 of the Criminal Procedure Code.

DATED, SIGNED and DELIVERED at Nairobi this 2nd day of November, 2017

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

J. WAKIAGA

JUDGE

In the presence of:-

Mrs. Kinoti for the State

Mrs. Nyamongo for the accused

Accused person present

Tabitha court clerk