Republic v Kimanzi [2024] KEHC 2565 (KLR)

Republic v Kimanzi (Criminal Case E008 of 2022) [2024] KEHC 2565 (KLR) (8 March 2024) (Ruling)

Neutral citation: [2024] KEHC 2565 (KLR)

Republic of Kenya

In the High Court at Garissa

Criminal Case E008 of 2022

JN Onyiego, J

March 8, 2024

Between

Republic

Prosecutor

and

Julius Kimanzi

Accused

Ruling

1. The accused person herein 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 are that on 29. 03. 2022 in Mororo Shopping Centre, Madogo Division within Tana River County unlawfully murdered one Samuel Muthangia. Upon arraignment in court, he pleaded not guilty and a plea of not guilty was entered.

2. The case proceeded for trial whereby the prosecution called Eight (8) witnesses in support of its case and thereafter after the prosecution closed its case.

3. Under section 306 of the Criminal Procedure Code Cap 75 Laws of Kenya, this court has a duty, upon close of the prosecution’s case, to make a ruling or a decision on whether an accused person has a case to answer or not. Under section 306(1), when the evidence of the witnesses for the prosecution has been concluded and the court is of the opinion that there is no evidence that the accused person committed the offence should, after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit, record a finding of not guilty.

4. Under section 306(2) on the other hand, when the evidence of the witnesses for the prosecution has been concluded and the court is of the opinion that there is evidence that the accused person committed the offence, the court should proceed to put the accused to his defence.

5. As such, at this stage, this court’s role is to consider the evidence on record and make a determination as to whether the same presents a prima facie case that would warrant this court to call upon the accused person to give his defence. Under section 211 of the Criminal Procedure Code, a prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person. [See Obar s/o Nyrongo v Reginum (1955) 22 EACA 422 (Sir Barclay Nilhill P. Sir Newham Worley VP and Briggs JA].

6. However, it is trite that, where the court is not acquitting the accused person at the close of prosecution’s case, there is no need for a reasoned ruling for a case to answer. Reasons should only be given where the submission of a no case to answer by the accused is upheld and the accused is to be acquitted. [See R v Galbraith (1981) 1 WLR 1039].

7. I have considered the evidence tendered by the prosecution in this matter more particularly the testimony of pw3 and pw4 who witnessed the accused attack the deceased who later succumbed to those injuries. As required of this court and from the entirety of the said evidence, it is my view that the prosecution has made a prima facie case against the accused person. He therefore has a case to answer and accordingly put on his defence. Section 211 of the CPC shall accordingly be explained to the accused that he has the right to make sworn testimony in defence in which case he shall be cross examined by the prosecution. Secondly, he can choose to give unsworn testimony in which case he shall not be cross examined and lastly; choose to keep quiet. In each option, he shall be at liberty to call witnesses.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 8TH DAY OF MARCH 2024J. N. ONYIEGOJUDGE