Republic v Prosper Mutua Nzilani [2017] KEHC 7497 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL CASE NO. 15 OF 2013

REPUBLIC…………….…………………………...PROSECUTOR

VERSUS

PROSPER MUTUA NZILANI…………….……….........ACCUSED

RULING

Prosper Mutua Nzilani, “the accused,” is charged with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that on the 28th day of January 2013 at Biafra in Eastleigh Section III within Nairobi County he murdered Joseph Asumwa Ngigi, “the deceased”. The accused denied committing this offence.

To prove its case, the prosecution called a total of eight (8) witnesses and from the evidence on record, Jamila Indris Wesonga (PW5) and Stella Munyiva Muasya (PW6) noticed two men lying on the ground with one man on top of the other. This was on 28th January 2013 at about 12. 30pm. The two witnesses identified the accused as the man that was on top of the other man identified as the deceased. Both the accused and the deceased were known to Munyiva as her neighbours while Jamila knew the deceased. According to Jamila, the accused stood up, pulled the knife from the left side of the deceased and stabbed himself on his right thigh; he threw the knife down beside the deceased and ran from the scene.

The accused was arrested by members of public and taken to Biafra Lower Eastleigh Administration Police Post. He was handed over to SGT Kennedy Mungai (PW1). The accused was at the time bleeding from a wound on his right thigh. He was handed over to Shauri Moyo Police Station where he was ultimately charged with this offence.

The deceased was taken to Mother and Child Hospital in Eastleigh by his uncle Kevin Maloba (PW2). He was pronounced dead on arrival. The body was taken to the City Mortuary where it was examined by Dr. Dorothy Njeru on 5th February 2013. The doctor found three stab wounds on the left side of the chest; accumulated blood (one litre) in the chest cavity and cuts on the left lung and left side of the heart. The opinion of the doctor was that the deceased died as a result of chest injuries due to penetrating sharp force trauma.

I have examined the entire evidence by the prosecution case, especially the two eye witnesses. At this stage of the trial my duty is limited to determining whether the prosecution has tendered sufficient evidence to persuade this court to make a finding that a prima facie case has been made out against the accused person in order to call upon him to make his defence. I am persuaded that the accused was at the scene of the stabbing and that he and the deceased were involved in an altercation and a physical tussle. Both of them were seen by Jamila and Munyiva struggling on the ground with the accused on top of the deceased. The accused was seen by the two witnesses running away leaving the deceased with stab wound injuries. I am persuaded that the accused is implicated in this case. It is my considered view that he has a case to answer. I will, and do hereby, place him on his defence.

The law under section 306 (2) of the Criminal Procedure Code requires that I notify the accused of his right to inform this court how he wishes to tender his defence: whether he will he give a sworn or unsworn statement of defence and whether he will call any witnesses to his defence. I hereby comply with the provisions of this section.

Orders shall issue accordingly.

Dated, signed and delivered this 2nd day of February 2017.

S. N. Mutuku

Judge