Republic v Peter Gitahi Ndumia [2017] KEHC 3500 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

CRIMINAL  CASE NO.  50 OF 2016

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

VERSUS

PETER GITAHI NDUMIA.....................................ACCUSED

RULING ON NO CASE TO ANSWER

1. In a criminal trial, at the conclusion of the Prosecution case, the Court considers submissions by the Prosecution and Defence whether the evidence presented thus far warrants putting the Accused Person on his defence. The task of the Court at this stage in the proceedings is to decide if the Prosecution has made out a sufficient case for the Accused Persons to be placed on his defence.

2. The test to be utilised by the Court in making that determination was famously stated in the Bhatt –vs- R [1957] EA 332. In plain terms, the Court is expected to determine if there is enough reliable evidence to warrant the Court to hear from the Accused Persons or if the case should be stopped at this point.

3. The test was stated in the R v Galbraith [1981] 1 WLR1039thus:

(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a [Court] properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability ….and where on one possible view of the facts there is evidence upon which a [Court] could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to [proceed for Defence hearing]…. There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the dis

4. In the instant case, the Prosecution presented nine witnesses who sought to demonstrate that it was the Accused Person who unlawfully killed John Githira Mwangi  (“Deceased”)  on  22/06/2016  at  Zimmerman Estate,  Kasarani  Sub   County  within  Nairobi  County contrary to section 203 of the Penal Code as read together with section 204 of the Penal Code. According to the evidence presented, at least two of the witnesses saw the confrontation between the Accused Person and the Deceased and one – PW1 – says he saw the Accused Person with the murder weapon.

5. The Defence Counsel put in very elaborate submissions contesting the authenticity and credibility of the narratives by the Prosecution witnesses. Suffice it to say that at this point in the trial, it is improper for me to take a view of the “weightiness”, credibility or reliability of the evidence presented by the Prosecution.

6. The Court can only rule that the Accused Person has no case to answer where it forms the view that the evidence presented is so hopelessly contradictory or so woefully unreliable that no reasonable tribunal could convict based on it. With respect, that is not the position here. Here there is enough evidence presented by the Prosecution which, “taken at its highest”, meaning without final determination as to its creditworthiness or weightiness (See R v Galbraith 73 Cr. App. R. 124) – a reasonable court could convict if no explanation is offered by the Defence. Consequently, in the circumstances, the Court finds that the Accused Person has a case to answer.

7. Consequently, the case shall be set down for defence hearing.

Dated and delivered at Kiambu this 18thDay of September, 2017.

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

JOEL NGUGI

JUDGE