State v George Omwombo Olik & Astariko Oduor Olik [2022] KEHC 1125 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT SIAYA

CRIMINAL CASE NO. E012 OF 2021

CORAM: HON. R.E. ABURILI, J

STATE...........................................................................................................PROSECUTION

VERSUS

GEORGE OMWOMBO OLIK.....................................................................1ST ACCUSED

ASTARIKO ODUOR OLIK..........................................................................2ND  ACCUSED

RULING ON CASE TO ANSWER

1.    The two accused persons herein George Omwombo Olik and Astariko Oduor Olik are brothers.  They are jointly charged with the offence of Murder contrary to Section 203 as read with the Section 204 of the Penal Code. Particulars of the offence as per the Information dated 8th June 2021 are that the two accused persons, on the 18th day of May, 2021 at Ramba Pundo village, Karapul sub location, in Siaya sub county within Siaya county, they jointly with others not before court, murdered one Emmanuel Ben Juma.

2.    The accused persons took Plea before Kisumu High Court on 8/6/2021 denying the offence. The Prosecution called 8 witnesses who have testified against the 2 accused persons and this court is now called upon to determine whether the 2 accused persons have a case to answer, to warrant their being placed on their defence.

3.    The defence counsel and the Prosecution were on 21/2/2022 granted 10 days to file their written submissions on whether the accused have a case to answer but only the accused person’s counsel, Mr. Were, did file his written submissions on 10th March, 2022.

4.    In the said submissions, Counsel urged this court to find that the prosecution has not made out a prima facie case to warrant the two accused persons to be placed on their defence to answer to the charge of murder.

5.    I have considered the evidence adduced by the prosecution witnesses and the submissions made by the defence counsel. It must be appreciated that the burden of proof lies with the Prosecution throughout the trial to prove its case against the accused persons. The standard of proof required is that of beyond reasonable doubt.  That burden does not shift unto the accused persons whose rights to fair trial under Article 50(2) of the Constitution are guaranteed.  Under Article 50(2) (a) of the Constitution, every accused person is presumed innocent until proven guilty. Among the guaranteed rights are the right to remain silent and not testify during proceedings, the right to adduce and challenge evidence; and the right not to give any self-incriminating evidence.

6.    It follows that an accused person cannot be expected to adduce evidence to challenge the evidence adduced by the Prosecution witnesses as that would be shifting the burden of proof where it does not lie. Whether an accused person elects to give evidence or not, the court must determine the case on the basis of the evidence adduced by the prosecution witnesses to establish whether that evidence meets the threshold to sustain a conviction.

7.    However, at this stage of the proceedings, the court is not expected to determine the question of whether the prosecution have proved their case against the accused persons beyond reasonable doubt. What is expected of this court after close of the prosecution’s case is to determine whether the Prosecution has made out a prima facie case against the 2 accused persons to warrant them to be placed on their defence, whereupon the accused persons will still exercise their constitutional rights under Article 50(2) of the Constitution and elect whether to adduce and challenge evidence or not. In the case RonaldNyaga Kiura vs. Republic [2018] eKLR it was stated that:

“It is important to note that at the close of prosecution, what is required in law at this stage is for the trial court to satisfy itself that a prima facie has been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of Section 211 of the Criminal Procedure Code. A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person. This is well illustrated in the cited Court of Appeal case of RAMANLAL BHAT -VS- REPUBLIC [1957] EA 332. At that stage of the proceedings the trial court does not concern itself to the standard of proof required to convict which is normally beyond reasonable doubt. The weight of the evidence however must be such that it is sufficient for the trial court to place the accused to his defence.”

8.    The Federal Court of Malaysia discussed the question of a prima facie case and interpreted section 180 of the Criminal Procedure Code in the case of PP v Mohamed Radzi bin Abu Bakar [2005] 6MLJ 399 and set out guidelines for the trial court at the close of the prosecution case as follows:

“(i) The close of the prosecution case, subject the evidence led by the prosecution in its totality to a maximum evaluation, carefully scrutinize the credibility of each of the prosecution’s witnesses. Take into account all reasonable inferences that may be drawn from the evidence if the evidence admits of two or more inferences, then draw the inferences that is most favourable to the accused.

(ii) Ask yourself the question: If I now call upon the accused to make his defence and he elects to remain silent, I am/prepared to convict him on the evidence now before me" If the answer to that question is YES, a prima facie case has been made out and the defence should be called. If the answer is NO, a prima facie case has not been made out and the accused should be acquitted. emphasis mine.”

(iii)  After the defence is called, the accused elects to remain silent, then convict.

(iv) After defence is called, the accused elects to give evidence, then go through the steps set out in May v Public Prosecutor [1963] (MLJ 263. In this case in our Kenyan situation the trial court should proceed by calling the accused to defend himself by electing on any of the steps laid down under section 306(2) as read with section 307 of the Criminal Procedure Code. [ emphasis added].”

9.    In the instant case, and from the evidence adduced by the 7 prosecution witnesses including PW8 and excluding the doctor’s evidence, none of the witnesses testified that they saw the 2nd accused participate in the assault of the deceased.

10.  Most witnesses are family members of the two accused persons.  The evidence touching him is that he went and reported the incident to the Area Chief. The other evidence by his wife and daughter is that he was not at home, as he had gone to graze his cattle and retuned late only to find the deceased having been assaulted.

11.  According to PW8 the Investigating officer, the 2nd accused was arrested because he was the owner of the rental houses where the deceased was found being assaulted from. The investigating officer stated as follows in his evidence:“Astariko did not participate in assaulting the deceased.” On being asked by the court why the 2nd accused was arrested, he responded: “The 2nd accused was arrested because the deceased was brought and killed at his house, not because he directly or indirectly participated in the killing of the deceased.  From my investigations, the deceased was found with the stolen goods of the tenant of Astariko.”

12.  That is the evidence by the Investigating officer, as against the 2nd accused person herein Astariko Oduor Olik. A prima facie case was explained in the case of Bhatt vs Republic [1957] EA 332 – 335as follows:

"(i) The onus is on the prosecution to prove its case beyond reasonable doubt and a prima facie case is not made out if at the close of the prosecution, the case is merely one which on full consideration might possibly be thought sufficient to sustain a conviction.

(ii) The question whether there is a case to answer cannot depend only on whether there is some evidence irrespective of its credibility or weight sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough; nor can any amount of worthless discredited evidence."

13.  The issue for determination therefore is whether the prosecution has established a prima facie case to warrant the 2nd accused to be put on his defence, as provided for by Section 306 of the Criminal Procedure Codewhich provides for what should happen at the close of the case for the prosecution. Section 306 of the Criminal Procedure Code provides that:

“ 306. Close of case for prosecution

(1) When the evidence of the witnesses for the prosecution has beenconcluded, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence shall, after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit, record a finding of not guilty.

(2) When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is evidence that the accused personor any one or more of several accused persons committed the offence, shall inform each such accused person of his right to address the court, either personally or by his advocate (if any), to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether it is intended to call any witnesses as to fact other than the accused person himself; and upon being informed thereof, the judge shall record the fact.

14.  There is evidence of death of the deceased and the fact that his death was not caused by natural causes but there is no evid4ence that the 2nd accused was connected with the unlawful killing of the deceased. That being the case, it is clear to me that the Prosecution have not established whether by way of direct or circumstantial evidence, the involvement of the 2nd accused in the assault of the deceased leading to his demise.  They have also not established any common intention between the two accused persons who are brothers. I find that even if the 2nd accused were to remain silent upon being placed on his defence, this court would not make any finding of guilt against him.

15.  Accordingly, I find and hold that to place the 2nd accused on his defence to answer to this charge of murder is tantamount to shifting the burden of proof on him and asking him to prove his innocence.

16.  Although a prima facie case is not necessarily one that must succeed, I find that the evidence adduced against the 2nd accused falls short of prima faciecase to warrant him to be placed on his defence.  I hereby find the 2nd accused Astariko Oduor Olik with no case to answer. He is hereby found Not Guilty and is acquitted of the offence of Murder under section 306(1) of the Criminal Procedure Code and is, unless otherwise lawfully held, set at liberty. His surety is discharged and the security deposited in court to be released to the surety forthwith.

17.  As against the 1st accused person, Mr. Were Advocate has urged this court to analyze the evidence on record and find that he has no case to answer. I have examined the evidence on record and without delving into the depths of that evidence at this stage as that would prejudice the 1st accused person, I am persuaded that a prima facie is made against him to warrant him to be placed on his defence. I need not delve deep into the evidence on record to avoid any prejudicial pronouncement against him as he remains innocent until the end to the trial.

18.  Accordingly, the 1st accused person George Omwombo Olik is hereby found with a case to answer and is hereby placed on his defence.

19.  The provisions of Section 306(2) of the Criminal Procedure Code and Article 50(2)(i)(k) and (l) of the Constitutionare hereby explained to him in Dholuo language in the presence of his counsel Mr. Were and he is allowed to consult his advocate before electing which mode of defence he prefers.

20.  I so order.

DATED, SIGNED AND DELIVERED AT SIAYA, THIS 16TH DAY OF MARCH 2022

R.E. ABURILI

JUDGE