Republic v Joseph Rioba Segeno alias Nyaitoti [2017] KEHC 2122 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CRIMINAL CASE NO. 76 OF 2014

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

VERSUS

JOSEPH RIOBA SEGENO alias NYAITOTI………………ACCUSED

RULING ON A CASE TO ANSWER

1. The accused person herein, JOSEPH RIOBA SEGENO alias NYAITOTI, was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence were that on 2nd May 2014 at Mashangwa village, Mashangwa location within Narok County, murdered CHARLES CHACHA MWITA.

2. The accused pleaded not guilty to the charge and a trial ensued in which the prosecution presented the evidence of 5 witnesses before closing their case. At this stage of the proceedings, this court is under Section 306 of the Criminal Procedure Code required to make a determination on whether or not a prima facie case has been established against the accused person that would require him to be placed on his defence.

3. A prima facie case can be described to be a scenario whereby if an accused person opts to keep quiet and tender no evidence in his defence offer the close of the prosecution case, the evidence on record would be sufficient to sustain his conviction.

4. In the case of Ramanlal Trambaklal Bhatt -Vs- Republic (1957) E.A. 332 it was held as follows:

"(i) The onus is on the prosecution to prove its case beyond reasonable doubt and a prima facie case is not 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.

(ii) The question whether there is a case to answer cannot depend only on whether there is 'some' evidence irrespective of its credibility or weight sufficient to put the accused on his defence.  A mere scintilla of evidence can never be enough; nor can any amount of worthless discredited evidence."

5. In the instant case, the prosecution’s case was best captured by the testimony of PW1 John Mwita Chacha, who stated that on the fateful day he saw the accused herein assaulting the deceased in a maize plantation.

6. PW2 Consolata  Nyamorobe Magao testified that she met the accused face to face on the road at about 6 a.m. and that the accused was armed with a panga and his clothes were blood stained.

7. PW3, Allan Masambe Wambura, also claimed that he met the accused on the fateful morning and that the accused’s white shirt was blood stained. He added that the accused ran away upon seeing him.

8. PW4 Felix Wambura Kimani testified that he rushed to the scene of the attack where he found the deceased still alive and trying to get up but that when he tried to assist him stand up, the deceased informed him that it was the accused who had assaulted him. He added that shortly thereafter, the deceased died while he was still holding him.

9. PW5, CPL David Langat, was the police officer who investigated the case and charged the accused with the offence of murder.

10. It is my finding that, as can be seen from the summary of the prosecution’s case and without saying much at this point in the case, the prosecution has tendered sufficient evidence pointing towards the involvement of the accused in the offence before the court.

11. It is therefore my finding that a prima facie case has been made out against the accused that would warrant him to be placed on his defence.

12. Consequently and in line with the provisions of Section 306 of the Criminal Procedure Code, I hereby find that the accused has a case to answer and as such I place him on his defence.

Delivered, dated and signed in at Kisii on 9th of November 2017.

W.A. OKWANY

JUDGE

In the presence of:

Mr. Otieno for the State

Mr. Okemwa for the Accused

Omwoyo court clerk