Republic v Kenga Kajembe [2020] KEHC 740 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MALINDI

CRIMINAL CASE NO. 3 OF 2019

REPUBLIC...............................................................................................PROSECUTION

VERSUS

KENGA KAJEMBE.........................................................................................ACCUSED

CORAM:  Hon. Justice R. Nyakundi

Mr. Alenga for the state

Mr. Obaga  for the accused person

RULING

The accused has been facing trial for the offence of murder contrary to Section 203 of the Penal Code.  The charge is founded on the evidence to the effect that on the 14. 2.2019 at Burangi Village, Magarini Sub-County he murdered Kea Katana.

In support of the charge, the prosecution summoned the evidence of their five witnesses to proof it beyond reasonable doubt against the accused person.  At the close of the prosecution case the defence asked the Court to make a finding in terms of Section 306 of the Criminal Procedure Code.  The net effect of the admitted evidence shows on 14. 2.2019 (PW1) Rehema was at Mangwe club selling palm wine.  Part of the customers she served wine happened to be the accused and the deceased.

Further, the evidence by (PW1) indicates that in the course of the evening each of them ordered for ‘wine’ and sat at different locations.  In the course of that social evening accused person left his chair and went to the deceased holding his head, took a knife in his possession and slit the neck.  Thereafter the accused took flight leaving the deceased on the ground bleeding from the injuries.

The next witness (PW2) Farah Karisa told the Court that on 14. 2.2019 he had taken palm wine to (PW1) to sell on his behalf. It was after a short while leaving the club he heard screams.  On arrival at the scene, (PW2) stated that he saw the deceased lying on the ground with injuries and in pain pointed at the accused as the cause.  According to (PW2), accused person was also within the vicinity armed with a knife issuing threats that if anyone of them is a man enough they should henceforth try to intervene.  At the same time (PW2) told the Court that arrangements were made to take the deceased to the mortuary having succumbed to death from the harm inflicted.

(PW3) – Dr. Badia who conducted a post-mortem examination on the deceased testified that she came to the conclusion that the death occurred due to haemorrhalis shock due to cut wound on the neck.

(PW4) – Cpl Abdalla currently attached to Kizingo but formerly of Malindi Police Station told the Court that while at the station he saw the accused armed with a knife having surrendered and admitting to the crime.  He therefore disarmed him of the knife placing him in police custody.

(PW5) Cpl. Abdalla Mawazo also a police officer from Marereni testified as the investigating officer to the murder.  He told the Court that after various inquiries and witness statements recorded of (PW1), (PW2) and (PW3) he was able to establish that at the time of the incident accused and the deceased were in a palm wine club at Burangi Village.  There is also the admitted evidence of the Senior Resident Magistrate Wasike who recorded the accused’s confession statement after satisfying herself of the voluntaries thereof.  The aforesaid statement was as exhibit 4.

At the close of the prosecution case it was obligatory for the Court to make a finding pursuant to the provisions of Section 306 of the Criminal Procedure Code.

The question which arises is whether from the evidence of the five witnesses the prosecution has discharged the burden of proof of a primafacie case.  At this stage all that the Court is called upon to undertake is to decide whether there is evidence which proves the following elements:

(a). The death of the deceased.

(b). Whether his death was unlawful.

(c). Whether the perpetrators in causing death had a malice aforethought.

(d). Finally, whether the prosecution has given reasonable evidence of identification of the accused and placing at the scene of the murder.

As a threshold matter, the evidence of the five witnesses has been reviewed by this Court both on the standard of proof vested with the prosecution and rights of the accused to a fair Hearing under Article 50 of the Constitution.  On the factual basis and the evidence on record as a whole its clear a primafacie case has been established by the prosecution to warrant accused person to be placed on his defence in terms of Section 306 (2) of the Criminal Procedure Code.

It is so ordered.

DATED, SIGNED AND DELIVERED AT MALINDI THIS  7TH   DAY OF DECEMBER, 2020

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

R. NYAKUNDI

JUDGE