Republic v Peter Musau Maweu, Jonathan Nzivo, John Nabea, Bernard Engolet & Sammy Mwova [2017] KEHC 112 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

CRIMINAL CASE NO. 3 OF 2014

REPUBLIC...................................................................PROSECUTION

VERSUS

PETER MUSAU MAWEU............................................1ST ACCUSED

JONATHAN NZIVO.....................................................2ND ACCUSED

JOHN NABEA...............................................................3RD ACCUSED

BERNARD ENGOLET.................................................4TH ACCUSED

SAMMY MWOVA.........................................................5TH ACCUSED

R U L I N G

1.  At the close of the prosecution's case the 1st and 2nd  accused by way of written submissions filed by their counsel Mr. Momanyi argued that there was no case to answer.  The counsel for the 3rd 4th and 5th accused Mr.  Mugambi did not file any submissions despite being  granted time to do so.

2.  The charge facing the accused is one of murder contrary to Section 203 as read with Section 204 of the Penal Code.

3.  In their submissions, the 1st and 2nd accused argued that  the prosecution had not made up a prima facie case for  the accused to be called upon to make their defences.

4.  The submissions summarize the evidence of each of the prosecution witnesses arguing that none of the witnesses pointed an accusing finger to the accused persons as having committed the offence. Further that it is not known whether the deceased was killed or his body was just dumped on the roadside where it was recovered.

5.  Mr. Momanyi also submitted that the accused persons had not been subjected to psychiatrist examination which omission subjected them to a lot of injustice.

6.  I wish to comment on this issue raised by the counsel on   psychiatric examination of the accused persons.  The  record shows that the prosecution realized towards the close of their case that the investigation file did not have   the psychiatrist report.  The court, in the interests of justice directed that the examination be done at Embu Level 5 Hospital and the report file.

7.  Dr. Joseph Thuo did the mental assessment and produced his report as the last prosecution witness.  This report suffices and is valid for purposes of this case unless a contrary report by the defence is produced.

8.  I have perused the evidence of the 13 prosecution  witnesses in this case.  I have also considered the  submissions by the 1st and 2nd accused persons on no case    to answer.

9.  I wish to state that where the court rules that there is a case to answer, it is not bound to give reasons for its  decision. The reason for this trend is that such detailed reasoning is likely to pre-empt the defence of the accused  person(s).

10. It is my considered opinion that the evidence on record   both direct and circumstantial is sufficient to support the  charge against the five accused persons.

11. I find that the five (5) accused persons have  a case to answer and are hereby called upon to make their defence.

12. The accused persons are represented and will be  explained the provisions of Section 211 of the Criminal   Procedure Code by their Counsels.

DATED, DELIVERED AND SIGNED AT EMBU THIS 7TH DAY OF NOVEMBER, 2017.

F. MUCHEMI

JUDGE

In the presence of:-

Ms. Manyal for the State

Mr. Momanyi for 1st and 2nd accused

Mr. Mugambi for the 3rd, 4th and 5th accused