Republic v Musa Adika Mudavila [2015] KEHC 2281 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL CASE NO. 85 OF 2013

REPUBLIC……………………………………………PROSECUTOR

VERSUS

MUSA ADIKA MUDAVILA………………………………..ACCUSED

RULING

Musa Adika Mudavila, the accused, is charged with murder contrary to section 203 read with section 204 of the Penal Code. The particulars of the offence are that on 28th December 2012 at Kibera slums within Nairobi County with others not before the court murdered Douglas Oloo Kimonge.

I took evidence from twelve (12) prosecution witnesses after which the prosecution closed its case. Thereafter the prosecution counsel made brief submissions that the prosecution has established a prima facie case against the accused person. Counsel called on the court to find in its favour and place the accused on his defence. Defence counsel disagreed with the prosecution on this matter. She submitted that the prosecution has failed to establish a prima facie case citing shoddy investigations and lack of evidence connecting the accused with the offence.

I have carefully read and analysed all the evidence. In the case of Ramanlal Trambaklal Bhatt v. R [1957] E.A 332 the Court stated on the issue of prima facie case that“……. It may not be easy to define what is meant by a “prima facie case”, 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.”

Briefly, the deceased operated a taxi from Ngong Road near the Post Office. He went missing on 24th December 2012. His partially decomposed body was found inside what police described as a small house near Makina Primary School in Kibera on 28th December 2012 with hands and legs tied together with a rope and a scarf tied round his neck. Dr. Johansen Oduor confirmed death of the deceased was due to asphyxia as a result of strangulation. The vehicle he had been operating as a taxi was recovered in Webuye in circumstances implicating the accused. He was arrested and charged with this offence.

I have carefully analysed this evidence and I find that a reasonable tribunal, properly directing its mind to the law and the evidence could convict on this evidence if no explanation is offered by the defence. Consequently, I find that the prosecution has established a prima facie case against the accused and will hereby place him on his defence.

In compliance with section 306 (2) of the Criminal Procedure Code, I hereby inform the accused of his rights to address the court and inform it if he will testify in his defence under oath or otherwise and if he wishes to call any witnesses in his defence. Orders are made accordingly.

Dated, signed and delivered this 24th day of September 2015.

S. N. MUTUKU

JUDGE