Republic v Joseph Mutua Kimanzi, Joseph Musyoka Muvengi & Stephen Muthui Kamonzo [2018] KEHC 6327 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITUI

CRIMINAL CASE NO. 60 OF 2015

REPUBLIC……………………………………………..……..PROSECUTOR

VERSUS

JOSEPH MUTUA KIMANZI….……………………………..1ST ACCUSED

JOSEPH MUSYOKA MUVENGI...…………..……………..2ND ACCUSED

STEPHEN MUTHUI KAMONZO…………………………..3RD ACCUSED

R U L I N G

1. Joseph Mutua Kimanzi, Joseph Musyoka Muvengiand Stephen Muthui Kamonzo, the 1st 2nd and 3rd Accused respectively are jointly charged with the offence of Murderof Joseph Muthui Katuin the 1st Count and Musili Munyasyain the 2nd Count.

2. Facts of the case were that the Deceased were watchmen at Musuani Trading Centre.On the nights of 25thand 26th October, 2010some shops were broken into.  PW1 Paul Munyasia Malukiwho was woken up by the dog that was barking noticed people outside his shop.  He stood at a strategic place in the house and managed to identify the 1st Accused.  He used his bow and arrow and shot at the people.  The people ran away.  In the meantime his family mobilized people.  The area administrators and police were informed.  It had rained.  The people followed shoe/footprints that led them to a homestead where a person identified as the 2nd Accused escaped.  A blood stained club was however recovered.  Another person identified as the 3rd Accused also ran away but some bow and arrows with initials ‘NK’ stated to belong to one of the witnesses which were in possession of the Deceased watchmen were recovered.  One of the suspects who ran away was stated to have been in possession of a yellow paper bag that contained a T-shirt with fresh blood stains, a sketch plan with buildings and names of the roads, safaricom sim wallets (3) and a voter’s card bearing the 1st Accused person’s name and a religious card.  When he slipped and fell as he was pursued he left the items behind.

3. The police took possession of the items and continued with investigations that culminated into the arrest of the Accused persons.  The two (2) bodies were subjected to autopsy and the cause of death established.

4. To call upon the Accused persons to defend themselves, the Prosecution is duty bound to establish a prima faciecase against them.  Such a case was stated in Bhatt vs. Republic (1957) EA 332as:

“……a prima facie case is made out if, at the close of the prosecution the case is merely one which on full consideration might possibly be thought sufficient to sustain a conviction.  This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in prosecution case.  Nor can we agree that the question whether there is a case to answer depends only on whether there is a “some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence.”

5. At the close of the Prosecution’s case the evidence adduced against the Accused persons require them to address the Court in their defence.

6. It is so ordered.

Dated, Signed and Deliveredat Kitui this 23rdday of May,2018.

L. N. MUTENDE

JUDGE