Republic v Ismail (Criminal Case E003 of 2023) [2024] KEHC 15257 (KLR) (4 December 2024) (Ruling)
Neutral citation:
[2024] KEHC 15257 (KLR)
Republic of Kenya
Criminal Case E003 of 2023
JN Onyiego, J
December 4, 2024
Between
Republic
Prosecutor
and
Abubakar Abdullahi Ismail
Accused
Ruling
1.Accused person is charged with the offence of murder contrary to section 203 as read with Section 204 of the penal code. Particulars are that on the 11th day of January 2023 at Wajir Bor Trading centre in Khorof Harar Suc-County, within Wajir County he unlawfully murdered one Abdullahi Ismail Ali.
2.Having pleaded not guilty, prosecution called five witnesses. Upon close of the prosecution case, counsel elected not to submit at this stage hence relied on the evidence on record.
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.
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 Owl [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-pw5 and the available circumstantial evidence have established a prima facie case against the accused person to warrant him to be placed on his defence. I therefore find that the accused herein has a case to answer and is therefore placed on his 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 he will be subjected to cross examination by the prosecution; Alternatively, he can opt to give unsworn testimony to which he will not be subjected to cross examination. Third option, he can choose to keep quiet. In either option, he shall be at liberty to call witnesses.
DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 4TH DAY OF DECEMBER 2024J. N. ONYIEGOJUDGE