Republic v Kamete [2023] KEHC 24665 (KLR)

Republic v Kamete (Criminal Case 33 of 2017) [2023] KEHC 24665 (KLR) (Crim) (1 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24665 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case 33 of 2017

LN Mutende, J

November 1, 2023

Between

Republic

Prosecutor

and

Nyamala Kamete

Accused

Ruling

1. Nyamala Kamete, the Accused, is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. Particulars of the information being that on the 15th day of May, 2017 in Kilimani area, within Nairobi County, the accused murdered Caroline Mutano Mutie (Deceased).

2. At the close of the prosecution’s case, based on evidence adduced, this court is required to determine if a prima facie case has been established against the accused requiring him to defend himself. Evidence adduced should be sufficient to justify a conviction in case the accused does not rebut evidence put forward.

3. A prima facie case was defined in the case of R.T. Bhatt vs Republic [1957] EA 332 – 335 by the Eastern Court of Appeal as follows:“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that 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 will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends 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. It may not be easy to define what is meant by a prima facie, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.”

4. The question of death having occurred is not in dispute. The cause of death was acute kidney injury due to 497 surface area, 2nd /3rd degree burns.

5. PW1 was one of the people who saw the accused leave with the deceased on the night of 15th May, 2015, at 7. 00 pm, after a drinking spree. At about 10. 00 pm, she was rang by the accused who notified her that her sister, the deceased, had been taken to Kenyatta National Hospital. She went there and the deceased purportedly told her that the accused had burnt herself with simmering water for cooking ugali. Thereafter, she was not able to talk until she passed on.

6. The allegation constituted last words of the deceased as death was imminent. The hearsay statement may be reliable as it was alleged to have been made in the presence of the accused. This calls for an explanation by the accused who allegedly claimed that the deceased burnt herself.

7. From the foregoing, I find the State having demonstrated existence of a prima facie case requiring the accused to defend himself pursuant to the requirement of Section 306 (2) of the Criminal Procedure Code.

8. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS AT NAIROBI, THIS 1ST DAY NOVEMBER, 2023. L. N. MUTENDEJUDGEIN THE PRESENCE OF:Mr. Ms. Nyagah for AccusedMs. Dela for ODPPCourt Assistant - Mutai