Republic v Simon Musambai Naman [2017] KEHC 9399 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

CRIMINAL DIVISION

CRIMINAL CASE  (MURDER) NO. 42 OF 2012

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

VERSUS

SIMON MUSAMBAI NAMAN........................ACCUSED

R U L I N G

1. The accused herein, Simon Musambai Naman is charged with murder contrary to Section 203 as read with Section 204 of the Penal Code, the particulars thereof being that on the 1st day of November, 2012 at Emariku Village, Kisa South Location in Khwisero District within Kakamega County, [he] murdered HELLEN MBOKA NAMAN.  He denied the charge when he appeared before Hon. Mr. Justice Chitembwe on 03. 12. 2012.  He has been in custody since then and during this period of waiting for justice, the prosecution called 6 witnesses.

2. The six witnesses were Peter Mudogo Naman son of deceased who testified as PW1.  Cleophas Ocholi the Assistant Chief of  Eshihinga Sub-location testified as PW2 while Edward Amutsama Otieno the village elder of Emariku Village testified as PW3.  Lusiana Ibrahim Nziwa Amukasa was PW4 and Dr. David Akaliche testified as PW5. Inspector Lilian Otieno who investigated the case was PW6.

3. Lusiana Ibrahim Nziwa Amukasa (Lusiana) testified that on 01. 11. 2012 at around 8. 00am, she went to the home of the deceased for the purpose of buying milk.  She found the deceased milking her cow as she sat on a low stool.  Just then, the accused, who is the eldest son of the deceased, approached from the lower side of the deceased’s compound and went straight to where the deceased was milking the cow.  The next thing Luisiana saw was the accused cutting his mother on the head with the axe.  Lusiana screamed as she ran towards the road with the accused in hot pursuit.  As neighbours answered to Lusiana’s screams, the accused ran away, carrying the axe with him.

4. That same morning the deceased died as efforts were being made to take her to the hospital.

5. Dr. Akaliche who testified on behalf of Dr. Oluga told the court that parietal from the post mortem report prepared by Dr. Oluga, the deceased had an open depressed skull fracture measuring 5x7 cm involving both partial and occipital skull with open scalp laceration.  He also testified that there was brain laceration below the area of impact and subdural haematoma below the depressed skull fracture.  The cause of death was said to be severe head injury characterized by subdural haematoma brain laceration and depressed skull fracture secondary to trauma.

6. At the close of the prosecution case, counsel asked for a ruling on whether or not the accused has a case to answer.  The principles to be applied at this stage are those enunciated in the case of Bhatt – vs – R[1957]EA 332. All that this court has to consider at this stage is whether on the strength of the evidence on record, it would be ready to convict if the accused said nothing in his defence.  It is worth noting that at this stage, the case need not be very strong and it does not matter, that it may not be very strong.

7. Applying the above principles to the evidence on record, I am satisfied that the prosecution has established a prima facie case against he accused to warrant an explanation from him in answer to the testimony given by Lusiana.  For that reason, the accused has a case to answer on the charge of murder.

8. Section 306 of the Criminal Procedure Code (CPC) gives three options to the accused in defending himself.  He can give sworn or unsworn evidence.  In the former case, he may be subjected to cross examination both by the court and the prosecution.  In both cases, he is at liberty to call witnesses.  The third option is for the accused to remain silent and let the court decide the case on the evidence that is before it.  I now call upon the accused to indicate to the court how he intends to conduct his defence.

It is so ordered

Ruling delivered, dated and signed in open court at Kakamega this 5th day of October,2017

RUTH N. SITATI

JUDGE

In the presence of;-

Mr. Ngetich(present)……………………………….….for State

Mr. Momanyi holding brief for Khayumbi ……….…..for accused

Polycap Mukabwa…………………..……..….....…….court Assistant