Republic v Mary J. Nyanchama [2017] KEHC 2088 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CRIMINAL CASE NO. 47 OF 2015

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

VERSUS

MARY J. NYANCHAMA…………………………………..………ACCUSED

RULING ON A CASE TO ANSWER

1. The accused person herein, MARY JANE NYANCHAMAfaces the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code the particulars being that on 7th August 2015 at Mwamanwa Sub-location in Kisii Central District within Kisii County murdered ROSEMARY MARIA ORANGO.

2. The accused pleaded not guilty to the charge and a trial ensued in which the prosecution presented the evidence of 4 witnesses. Under Section 306 (1) of the Criminal Procedure Code, this court is required, at this stage of the proceedings, to determine whether an accused person has a case to answer. A case to answer is where, if an accused person decides to offer no evidence in his/her defence the evidence of the prosecution would be sufficient to sustain a conviction.

3. The standard of proof on whether or not a prima facie case has been established was set in the case of Republic vs Jagjivan M. Patel and others I, TLR 85, it was held as follows:

“All the court has to decide at the close of evidence of the charge is whether a case is made out against the accused just sufficiently to require him to make a defence, it may be a strong case or it may be a weak case. The court is not required at this stage to apply its mind in deciding finally whether the evidence is worthy of credit or whether, if believed, it is weighty enough to prove the case conclusively, beyond reasonable doubt. A ruling that there is a case to answer would be justified, in my opinion, in a borderline case where the court, though not satisfied as to conclusiveness of the prosecution evidence, is yet of opinion that the case made out is one which on full consideration might possibly be thought sufficient to sustain a conclusion.”

4. In the instant case, PW1 Pacifica Monyangi testified on how the accused poured a hot liquid substance that was in a jerican on the deceased thereby causing her serious burns that led to her death.

5. PW2 Gesare Nyaranga corroborated the evidence of PW1 and stated that she also witnessed the accused pouring hot alcohol (kangara) on the deceased who was later taken to hospital where she was admitted for several days before succumbing to her injuries.

6. PW3 was Dr. Peter Momanyi who performed the post mortem examination on the body of the deceased and established the cause of death to be deep 2nd degree burns on the anterior trunk and both thighs.

7. PW4 was the investigating officer CPL. Daniel Kiprop.

8. From the above summary of the evidence tendered by the prosecution witnesses, I find that there is cogent and direct evidence linking the accused to the murder of the deceased on which the court can arrive at the conclusion that a prima facie case has been made out against the accused person which can lead to her conviction in the absence of an explanation from her by way of a defence. I therefore find that the prosecution has established a prima facie case against the accused to warrant her being put on her defence. She is accordingly placed on her defence.

Delivered, dated and signed in at Kisii on 14th of November 2017.

W.A. OKWANY

JUDGE

In the presence of:

- Mr. Otieno for the State

- N/A Sagwe for the Accused

- Omwoyo court clerk