Republic v Nickson Chepkwony [2019] KEHC 10146 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL DIVISION

HIGH COURT CRIMINAL CASE NO. 5 OF 2014

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

VERSUS

P.C. NO. 70156 NICKSON CHEPKWONY.......................ACCUSED

RULING

1. The Accused was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. He pleaded not guilty to the said charges and to prove its case against him the prosecution called a total of nine (9) witnesses and at the close of the prosecution case both the prosecution and the defence opted not to make any submissions under the provisions of Section 306 of the Criminal Procedure Code and left it to the court to make a determination based on the evidence on record.

2. At this stage what the court is required to do is to establish whether a  prima facie case has been established under the principles set out in the case of RAMANLAL TRAMBAKLAL BHATT v REPUBLIC (1957) EA 332 as follows:-

“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot argue that a prima facie case is merely one which on full consideration might possibly be thought sufficient to sustain a conviction.  This is perilously near suggesting that the court could not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case, nor can we argue that the question whether there is a case to answer depends only on whether there is “some evidence irrespective of its credibility or weight sufficient to put the accused on his defence.”

A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence… It may not be easy to define what is meant by 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.”

(Emphasis added)

3. In the case of REPUBLIC v JAGJIVAN M. PATEL & Others (1) TLR 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 conviction.”

(Emphasis added)

4. Justice J.B. Ojwang as he then was in the case of REPUBLIC v SAMUEL KARANJA KIRIA CR. CASE NO.13 OF 2004 NAIROBI [2009] eKLR had this to say on prima facie case:-

“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 . . .

The Court of Appeal Criminal Appeal No. 77 of 2006, the Court of Appeal expressed that too detailed analysis of 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.”

(Emphasis added).

5. With the injunction by Justice Ojwang in mind, I have looked at the evidence of PW1 CORP. JOHN LEOTAI NAULAwho was manning the security gate at Ruaraka GSU Headquarters who placed the accused and the deceased together at the date of the death of the deceased and PW3 who corroborated the said evidence and PW4 JONES MWAIwho led to the arrest of the accused together with the forensic evidence of  PW6 LAWRENCE KINYUA MUTHURI and PW7 DR. JOHANSEN ODUORand without saying much thereon at this stage I am satisfied and hold that the prosecution has established  a prima facie case to enable me put the accused on his defence which I hereby do.

6. The accused is therefore advised of his rights under Section 306 (2)and(3)and307of the Criminal Procedure Code and through the advice of his advocate and being alive to his constitution right under Article 50 of the Constitution may now elect how he intends to defend himself.

Dated, Signed and Delivered at Nairobi this 23rd day of January, 2019.

.......................

J. WAKIAGA

JUDGE

In the presence of:-

Mr. Naulikha for the State

Mr. Wakaba for the accused

Accused present

Court Assistant: Karwitha