Republic v Thierere [2022] KEHC 13969 (KLR)

Republic v Thierere (Criminal Case 4 of 2017) [2022] KEHC 13969 (KLR) (13 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13969 (KLR)

Republic of Kenya

In the High Court at Nyeri

Criminal Case 4 of 2017

FN Muchemi, J

October 13, 2022

Between

Republic

Prosecutor

and

Chrispo Mamithi Thierere

Accused

Ruling

1. This is a ruling on whether the accused has a case to answer. He faces a charge of murder contrary to section 203 as read with section 204 of the Penal Code to which he pleaded not guilty.

2. The prosecution called a total of eight (8) witnesses and at the close of her case, the defence counsel Mr Gathiga Mwangi filed submissions for no case to answer raising several issues.

3. Counsel argued that the evidence and the charge were at variance and as such the prosecution failed to demonstrate that the accused caused the death of the deceased. Further, that the prosecution failed to demonstrate that the accused had malice aforethought because from the prosecution case, all that was established was that the accused had an altercation with the deceased over a chicken. Counsel further raised the issue of the credibility of some of the witnesses.

4. I have perused the evidence on record and note that there are prosecution witnesses who placed the accused person at the scene of the crime with one of them claiming to have witnessed the incident.

5. Having carefully considered the evidence on record, it is my considered view at this stage that the prosecution have made a prima facie case against the accused person. I wish to rely on the Court of AppealAntony Njeru v Republic [2006] eKLR case where it was held that:-“Taking into account the evidence on record, what the learned Judge said in his ruling on no case to answer, the meaning of a prima facie case as stated in Bhatt’s (supra), we are of the view that the appellant should not have been called upon to defend himself as all the evidence was on record. It seems as if the appellant was required to fill in the gaps in the prosecution case. We wish to point out here that it is undesirable to give a reasoned ruling at the close of the prosecution case, as the learned Judge did here unless the court concerned is acquitting the accused person.”

6. I agree with the Court of Appeal observations in the above case that it is not necessary at this point to do extensive analysis of the evidence. The Court of Appeal in my view intended to prevent a scenario where the court would pre-empt the case of the defence by giving an elaborate ruling. As such, I find that the prosecution has established a prima faciecase against the accused person and he is hereby called upon to give his defence.

7. It is hereby so ordered.

DATED AND SIGNED AT NYERI THIS 13TH DAY OF OCTOBER, 2022. F. MUCHEMIJUDGERuling delivered through video link this 13th day of October, 2022