Republic v Mutua Kiminza [2013] KEHC 1797 (KLR)

No. 106/2013

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL CASE NO. 21 OF 2010

REPUBLIC ………………………………………..PROSECUTOR

VERSUS

MUTUA KIMINZA....................................................ACCUSED

RULING

Mutua Kiminza, the accused is 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 the night of 9th and 10th August, 2003 at Mwang’a village Kaluva sub-location, Nzangathi location in Kitui District of the Eastern Province he murdered Joseph Mwova Musyoka.

The facts of the case are that on the 9th August, 2003 the Accused and his brother went to report to the area Chief, Raphael Mbuvi Munyoki (PW1) that the deceased had burnt down their mother’s house.  He directed them to search and notify him upon tracing him.  On the 10th August, 2003, they returned to the chief and reported that they found him murdered and the body was alongside the road.  The chief visited the scene of the incident, carried out independent investigations and arrested two (2) suspects, the accused and his late brother. He took them to the police station.   Investigations carried out culminated into the accused being charged.

After the testimony of the chief, the State Counsel sought an adjournment.  When the case came up for hearing on the 16th October, 2013 he closed the prosecution’s case.

It was the submission of Mr. Konya, counsel for the accused that there was no factual material evidence to show that the accused committed the offence or that he had the intention to commit it or there was some evidence showing an omission on his part to connect him with the offence.  He called upon the court to find that no prima facie case had been established to warrant the accused being put on his defence.  The learned State counsel, Mr. Mwangi had nothing to state in response thereto.

The question of what constitutes a prima facie case was dealt with in the case of Ramanlal  Trambaklal Bhatt versus Republic [1957] E.A. 332 it was stated thus:-

“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution; the case is merely one which on full consideration might possibly be thought sufficient to sustain a conviction.”

At the close of the prosecution’s case, no evidence of death had been tendered. No evidence was adduced to connect the accused with the alleged offence.  Consequently no prima facie case has been established against the accused warranting him to be put on his defence.

I make a finding of not guilty in that regard, the accused is therefore acquitted pursuant to the provisions of Section 306 (1) of the Criminal Procedure Code.

It is so ordered.

DATED, SIGNED and DELIVEREDat MACHAKOS this 23RDday of OCTOBER, 2013.

L.N. MUTENDE

JUDGE