Republic v Malim & another (Criminal Case E009 of 2021) [2024] KEHC 14605 (KLR) (22 November 2024) (Ruling)
Neutral citation:
[2024] KEHC 14605 (KLR)
Republic of Kenya
Criminal Case E009 of 2021
JN Onyiego, J
November 22, 2024
Between
Republic
Prosecution
and
Mahamud Malim
1st Accused
Abdirizak Idris
2nd Accused
Ruling
1.Accused persons herein are charged with the offence of murder contrary to 203 as read out with section 204 of the penal code. Particulars are that on 21st day of November 2021, at around 2030hrs at Adhele area, Madogo Location, within Tana River County, they jointly murdered Sammy Muli.
2.The matter proceeded to full hearing wherein the prosecution called a total of eight (8) witnesses in order to prove its case. At the close of the prosecution case, both counsel opted not to submit and instead urged the court to deliver its ruling based on the evidence tendered by the prosecution.
3.It is trite that in a criminal trial, once the prosecution closes its case, the court is call upon to make a finding whether the evidence tendered meets the threshold of a primafacie case to enable the court put accused on his defence. A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court of law to return a guilty verdict even if the accused opts to remain silent.4.Section 306 (1) of the Criminal Procedure Code does provide as follows:
5.Having considered the testimonies of the prosecution witnesses, the question that begs for an answer at this stage is whether the evidence tendered herein establishes a prima facie case against the accused or better still, whether the accused has a case to answer.
6.In Republic vs Abdi Ibrahim OwlS [2013] eKLR, the court defined a prima facie case as follows:
7.From the above, can this court on the basis of the evidence so far tendered by the prosecution properly directing itself to the law and evidence convict if the accused chooses not to give any evidence?
8.In the case of Ronald Nyaga Kiura vs Republic [2018] eKLR, the court held:
9.The trial court is however cautioned that at this stage, it should not make definitive findings should it conclude that the accused has a case to answer.
10.In Festo Wandera Mukando vs Republic [1980] KLR 103, the court held thus:
11.Without delving into the depths of the witnesses’ testimonies, I am satisfied that the Prosecution through the testimony of pw1, pw2, pw6, pw7 and pw8 and the available circumstantial evidence have established a prima facie case against the accused persons to warrant them to be placed on their defence. I therefore find that the accused herein have a case to answer and are therefore placed on their defence.
12.Accordingly, section 211 of the CPC shall be complied with to the extent that; accused shall be at liberty to give sworn testimony in which case they will be subjected to cross examination by the prosecution; Alternatively, they can opt to give unsworn testimony to which they will not be subjected to cross examination. Third option, they can choose to keep quiet. In either option, they shall be at liberty to call witnesses.
DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 22ND DAY OF NOVEMBER 2024.J. N. ONYIEGOJUDGE