Republic v Kihu Anthony Mbugua [2017] KEHC 9500 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CRIMINAL CASE NO. 18 OF 2012

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

VERSUS

KIHU ANTHONY MBUGU…………....………..ACCUSED

RULING

1. The accused KIHU ANTHONY MBUGUA 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 night  of 9th and 10th of March, 2012 at Kangemi  Dagoreti Division within Nairobi County murdered ROBERT KIHU GANDU.

2. He pleaded not guilty to the said charges and to prove its case against the accused the prosecution called a total of ten (10) witnesses and at the close of the prosecution case the parties were called upon to make submissions as to whether the prosecution had made out a case to enable the court put the accused on his defence.

SUBMISSIONS

3. On behalf of the prosecution it was submitted that death of the deceased was proved by the evidence of Dr. Njeru (PW8) and that the accused was positively identified and placed at the scene of crime and therefore prima facie had been established.  On behalf of the accused it was  submitted  that he prosecution case is merely circumstantial and that no case to answer had been proved for which the case of REPUBLIC v MARTIN OLUOCH OKWAKO & 2 OTHERS (2016) eKLR was submitted.

4. What is required at this stage was stated by Justice J.B Ojwang ( as he then was) in the case of REPUBLIC v SAMWEL KARANJA KURIA  CRIMINAL CASE NO. 130 OF 2004 Nairobi (2009) eKLR 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. In this matter upon considering the prosecution case I am satisfied that a prima facie case has been established to enable the court call upon the accused to offer an explanation and hereby put the same on his defence.  The accused is therefore advised of his rights under the provision of Section 306 of the 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