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JudgmentCHARO KENGA MBATO & ANOTHER13 min read

CHARO KENGA MBATO & ANOTHER

High Court at Mombasa High Court · · Wendy Micheni


Introduction

  1. The accused persons were charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63  Laws of Kenya.
  2. The particulars of the offence being that on the night of 27th and 28th of February, 2017, at unknown time at Matsavini village in Tsangatsini location, Kaloleni Sub – County of Kilifi County within Kilifi County with others not in court murdered KENGA CHARO MBATO.
  3. The accused persons denied the charge and the prosecution called six (6) witnesses in support of its case.

The Prosecution case

  1. PW 1 who was the mother to the deceased who testified that she only heard noise at night but did not come out of her house because she feared for her life. She notified her grandson when she woke up that his father had died. She saw the body of the deceased in the morning.  When cross examined she stated that the deceased did not have any grudge with 2nd accused person who was his son.
  2. PW 2 told the court that the deceased informed him that the 1st accused would kill him but that the matter was never taken to court and parties were told to settle the matter. He did not witness the incident. He did not go to the deceased’s homestead nor attend his burial.
  3. PW 3 testified that her mother was unwell and was told that the deceased was the one bewitching her. She stated that she told the 1st accused that they should contribute money to kill the deceased however they did not contribute any money. She further stated that she did not know who killed the deceased person.
  4. PW 4 was the doctor who produced the post mortem report ad he confirmed the cause of death of the deceased.
  5. PW5 was the son of the deceased who heard his father say that he was being killed and only heard his father’s voice. He further stated that other people stated that they did not hear any noise. He also did not see the accused persons.
  6. PW 6 was the Investigating Officer who stated that they found the deceased holding a panga and later found a note alleging that the deceased had committed suicide. He stated that the note was typed. He however disputed the said note despite the deceased having held a panga. When cross examined he alleged that the accused persons were identified by the chief however this was never stated in his statement. He arrested the 2nd Accused on account of the alleged dispute between him and the deceased which was never reported to the police and the information of the alleged dispute was hearsay. He never disclosed the basis of the arrest of the 1st accused person.

The Accused Persons’ submission:

  1. According to the Accused persons for them to be put on their defence, the prosecution ought to prove that there is a prima facie case. Prima Facie Case was defined in Bhatt – Versus - R (1957) EA 332 essentially meaning that the evidence on record ought to be sufficient to sustain a conviction should the accused opt to say nothing to rebut the evidence by the prosecution. The evidence by the prosecution was not sufficient to sustain a conviction. The testimony of the witnesses were not consistent in any way neither is there any evidence pointing to the guilt of the accused persons.
  2. There was no evidence whatsoever that the accused persons committed the crime nor that they had any malice aforethought which are the ingredients for the offence of murder. The Accused persons relied on the case of R – Versus - Paul Langat (2022) eKLR where the court in considering whether the accused had a case to answer noted that there was no direct evidence to connect the accused to the offence as there was no eyewitness neither was there circumstantial evidence placed before court.
  3. The Accused persons submitted that similarly in this matter there was no evidence connecting the accused persons to the offence circumstantial and/or otherwise. There was alsono eye witness to the offence. They prayed that this Honorable court do find that the accused persons had no case to answer and acquit the accused persons herein.

Analysis and Determination

  1. The issue which arises for determination is whether at the close of the prosecution’s case under Section 306 of the Criminal Procedure Code, the prosecution has adduced sufficient evidence to establish a prima facie case against the accused. At this stage the court is called upon to consider the evidence tendered by the prosecution to determine whether the accused has a case to answer.
  2. The burden was on the prosecution to establish that the accused person has a case to answer the charge. The burden is placed on the prosecution based on the presumption of innocence of the accused person which is a constitutional right to a fair trial. Article 50(2) (a) of the Constitution provides that:-

“Every accused person has the right to a fair trial which included the right-

To be presumed innocent until the contrary is proved.”

  1. The burden placed on the prosecution to prove the guilt of the accused never shifts and it has been stated that it lies in the prosecution’s backyard and never shifts. The prima facie obligation is vested with the prosecution. The success or failure of it depends wholly on the evidence presented to prove existence or non-existence of a fact or facts in issue as derived in Section 107(1), 108 and 109 of the Evidence Act. The term Prima facie is note defined under Section 306 of the Criminal Procedure Code but the concept appears both in criminal and civil law. It is therefore a concept used in the law both as an adjective and as an adverb.
  2. There is a close knitted correlation between the term prima facie as commonly used and prima facie evidence. In so far as the definition is concerned, as deducible in Sectio 306 of the CPC, the use of prima facie case means the prosecution having presented enough evidence to proof the elements of the offence in question. That the prosecution is entitled to prevail in its case against the accused person.
  3. Speaking plainly, there are two senses in which courts use the concept of prima facie. The first in the sense of the prosecution producing sufficient evidence to render a reasonable conclusion in favour of the allegation asserted in the indictment or the charge sheet. That this what gives the trial court the power to exercise discretion to allows the criminal case to proceed to the next stage which is the defence offering an explanation or an answer to the charge.
  4. In the case of Woolmington – Versus - The D.P.P (1935) AL 462 which a is a landmark in the case of the House of Lords, the presumption of innocence was discussed and it was held that the burden of proof in criminal cases lies with the prosecution who must prove the guilt of the defendant beyond any reasonable doubt. The case clarifies the role of the prosecution and the defense in criminal cases and upholds the principle of the presumption of innocence. As to what constitutes the burden of proof it was held in Miller – Versus - Minister of Pensions (1947 2 All E.R 372-373 it was stated that:-

“The degree is well settled but must carry a high degree of probability –proof beyond reasonable doubts does not mean proof beyond a shadow of doubts. The law would fail to protest the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible but not in the least probable, the case is proved beyond reasonable doubt but nothing short of that will suffice.”

  1. Better still, the learned authors Blackstone’s Criminal Practice 2002 at Section D14, 27 advanced and strongly urged upon the trier of the case to keep and check over the following in respect.
  2. If there is no evidence to prove an essential element of the offence a submission must obviously succeed.
  3. If there is some evidence which taken at face value – establishes each essential element, the case should normally be left to the jury or in our case the trial judge.
  4. The judge does however, have a residual duty to consider whether the evidence is inherently weak or tenuous. If it is so weak that no reasonable tribunal or jury properly directed could convict on it, then a submission should be upheld. Weakness may arise from the sheer improbability of what the witness saying from internal inconsistencies in the evidence or from its being of a type which the accumulated experience of the courts has shown to be of doubtful value.
  5. The question of whether a witness is lying is nearly always one for the jury as this case for the judge.
  6. At this stage, the court is not concerned with the test of beyond reasonable doubt, but whether there exists some prima facie evidence capable of calling the accused persons to state their defense.
  7. The Criminal Procedure Code under Section 306 provides as follows:

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

  1. In this case the burden was on the prosecution to prove the ingredients of the charge under Section 203 of the Penal Code. This include prove of death of the deceased was caused by the unlawful acts or omission of the accused. That the accused had malice aforethought. Section 203 of the Penal Code provides:

“203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

  1. The prosecution adduced evidence to prove the death of the deceased. This was in testimony of PW 4 who did the postmortem and confirmed that the deceased died as a result of ……………… PW 1 confirmed that he saw the dead body of the deceased and PW 5 confirmed hearing the deceased shouting that he was being killed although he did not witness the same and no one else heard the deceased’s screams.
  2. On whether the accused persons caused the death of the deceased out of the six (6) witnesses none adduced evidence on how the deceased met his death. The evidence of PW 2 and PW 3 was hearsay. They did not witness how the injury resulting in the death was inflicted. PW 3 testified that her mother was unwell and was told that the deceased was the one bewitching her. She stated that she told the 1st accused that they should contribute money to kill the deceased however they did not contribute any money. She further stated that she did not know who killed the deceased person. Her testimony that the 1st Accused person was culpable with regards to contributing money for a hit on the deceased is suspicion and hearsay. It is trite that suspicion no matter how strong is not sufficient to prove a fact. The test for a prima facie case was laid down in the celebrated case of R.T Bhatt – Versus - Republic (1957) E.A 332-225.
  3. Remembering that the legal onus is always on the prosecution to prove the case beyond reasonable doubt, I cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one, which on full consideration might possibly be sufficient to sustain a conviction. This is perilously near suggesting that the court will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends on whether there is some evidence irrespective of its credibility or weight, sufficient to put the accused on the defence.
  4. A mere scintilla of evidence can never be enough, nor can any amount of worthless discredited evidence, it may not be easy to define what is meant by a prima facie case, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.
  5. The unlawful act by a person charged with murder is proved when it is caused on another person in circumstances which are not permitted or authorized by the law. Every act which causes the death of another is therefore unlawful except where circumstances make it excusable or where it has been authorized by the law. Section 306 of the Criminal Procedure Code provides:-

(1) When the evidence of the witnesses for the prosecution has been concluded, 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 person or 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.

(3) If the accused person says that he does not intend to give evidence or make an unsworn statement, or to adduce evidence, then the advocate for the prosecution may sum up the case against the accused person; but if the accused person says that he intends to give evidence or make an unsworn statement, or to adduce evidence, the court shall call upon him to enter upon his defence.”

  1. In this case, the prosecution failed to call sufficient evidence to prove that the accused persons caused the death of the deceased. PW 6 was the Investigating Officer who stated that they found the deceased holding a panga and later found a note alleging that the deceased had committed suicide. He stated that the note was typed. He however disputed the said note despite the deceased having held a panga. When cross examined he alleged that the accused persons were identified by the chief however this was never stated in his statement. Further he stated that he arrested the 2nd Accused on account of the alleged dispute between him and the deceased which was never reported to the police and the information of the alleged dispute was hearsay. He never disclosed the basis of the arrest of the 1st accused person.
  2. In the case of Republic – Versus -  Bargoiyet & 3 others (Criminal Case E038 of 2019) [2024] KEHC 9090 (KLR) (22 July 2024) (Ruling) it was held that:-
  3. The question is whether the prosecution has adduced sufficient evidence to warrant the court to put the accused on his defence. The test is whether if he is put on his defence and opts to keep quiet the court can convict the accused based on the evidence so far tendered by the prosecution. I find that the evidence of the witnesses fails to meet the threshold required to establish a prima facie case. Calling the accused to give their defence would be to invite them to fill the gaps in the prosecution’s case. The case of Republic – Versus - Tubere s/o Ochen (1945) 12 E.A.CA 63 laid down the elements to be considered as establishing malice aforethought. These are, the nature of the weapon used, the manner in which it was used, the part of the body targeted, the nature of injuries inflicted and the conduct of the accused during and after the incident. For the offence of murder to be completed, the prosecution must prove the actus reus and mens rea. The ingredients of murder were therefore not proved.

Conclusion and Disposition

  1. In the end,  and taking the above matters into consideration, it is imperative at this point for the court to dismiss the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code as constituting a charge not proven within the provisions of Section 306 of the Criminal procedure code to warrant the accused persons to place on their defence. The submissions of no case to answer is an entitled measure for the accused person which I hereby grant founded on the underlying principles of the Constitution. Each accused person be and is hereby set free unless otherwise lawfully held.

IT IS SO ORDERED ACCORDINGLY.

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …….…28th………DAY OF ………November………………..…….., 2024

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

  1. M/s. Bebora, Court Assistant;
  2. Ms. Maina          State Counsel;
  3. The 2 Accused persons and their Advocate.
    CHARO KENGA MBATO & ANOTHER CHARO KENGA MBATO & ANOTHER