Republic v Joseph Onyango Ochieng [2017] KEHC 2610 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL CASE NO. 44 OF 2014

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

VERSUS

JOSEPH ONYANGO OCHIENG ………………………………….…………..ACCUSED

RULING

1. The accused JOSEPH ONYANGO OCHIENG 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 18th day of May, 2014 at Dandora Phase IV in Njiru District of Nairobi County murdered one BENSON OLUOCH NYAMBUTE.

2. He pleaded not guilty and to prove its case against him the prosecution called a total of eight (8) witnesses and at the close of the prosecution case it was submitted on behalf of the accused that the prosecution case was merely based on suspicion which however strong cannot be a basis for the conviction of an accused person.  It was submitted that should the accused choose to keep quiet the court might not be able to convict on the evidence on record. Case of SAWE v REPUBLIC was submitted.

3. On behalf of the prosecution it was submitted that there was a fight between the accused and the deceased and that the accused was the last person to be seen with the deceased having been put at the scene of death of the deceased.

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. With this principal in mind I take into account the prosecution evidence and find and hold that a prima facie case has been established by the prosecution to enable me put 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 5th day of October, 2017.

…………………………………

J. WAKIAGA

JUDGE

In the presence of:-

Mr. Meroka for the State

Mr. Shimaka for the Accused

Accused person present

Court clerk Tabitha