Republic v Simon Ndung’u Wainaina [2022] KEHC 1247 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

CRIMINAL CASE NO. 19 OF 2020

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

VERSUS

SIMON NDUNG’U WAINAINA.........................ACCUSED

RULING

1. The accused is charged with murder contrary to section 203 as read with section 204 of the Penal Code.

2. The particulars are that on 19th August 2020 at Rokoroi village, Gatanga Sub-County within Muran’ga County, he murdered Dennis Wanjiri Mbugua.

3. He pleaded notguilty. The prosecution lined up tenwitnesses.

4. The issue is whether the evidence discloses a prima facie case sufficient to place the accused on his defence.

5. The learned prosecution counsel, Ms. A. Gakumu, filed submissions on 7th March 2022 with a list of authorities. In her opinion, the collective evidence of the ten witnesses is overwhelming and calls for a rebuttal from the accused.

6. Leaned defence counsel, Mr. T. Kariuki, has a contrary view. In his detailed submissions filed on 21st February 2022, he argued that there is no direct or reliable circumstantial evidence connecting the accused to the offence. He submitted that element of malice aforethought is completely absent. In a synopsis, he implored me to acquit the accused at this stage.

7. The accused and the deceased were cousins. They were also friends. According to their grandmother, Mary Nyambura (PW1), she was out gathering cattle   feed on   the morning of 19th September 2020.  She then   heard   a distress call from her granddaughter, Mary   Waringa (PW2). The latter was calling    out   loudly.  When PW1 went to the road, she found the deceased bleeding in the stomach area.

8. According to Waringa (PW2), she was on her way to the shops. She found   the accused and the deceased standing   on   the road. The accused asked her whether he could join her. When they reached   where the deceased   was, she saw the two greet each   other   with “a fist-bump” or in her lingo, kungoteana.

9. She went on for about   8   metres   when she “heard   someone   fall    down.  It   was   Denis [deceased].  Ndung’u [accused] had   a   knife”. She testified that the deceased was “stabbed   above    the   stomach”.

10. There is then the evidence of Dr. John Mathaiya (PW9). According to the pathologist death resulted   from“chest injury   due   to   a   single penetrating   sharp   force   trauma   to   the   chest”.

11. Applying the precedents in Bhatt v Republic [1957] E.A. 332 and R v Kipkering arap Koske & another 16 EACA 135 (1949); and, upon the digest of the evidence of all the tenwitnesses, I find that the Republic has established a prima facie case against the accused.

12. Accordingly, under the provisions of section 306 (2) of the Criminal Procedure Code, I place the accused on his defence.

It is so ordered.

DATED, SIGNED AND DELIVERED AT MURANG’A THIS 29TH DAY OF MARCH 2022.

KANYI KIMONDO

JUDGE

Ruling read in open court in the presence of:

Accused person.

Mr. Waiganjo holding brief for Mr. Kariuki for the accused instructed by Tim Kariuki & Company Advocates.

Ms. A. Gakumu for the Republic instructed by the Office of the Director of Public Prosecutions

Ms. Susan Waiganjo, Court Assistant.