1. The accused persons were charged with Murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 Laws of Kenya.
2. The particulars of offence are that 1. TONY WANJALA MALALA alias "TONY" 2. BECKHAM MULEMA AVUKUSI alias "BECKHAM" on the night of 5 th and 6 th June 2024 at around 0040 hours at Lucky Summer Area in Starehe Sub County within Nairobi County jointly with another not before court murdered WILTERVIN NGESA OLWENY alias "GWAN" alias "SALIM"
3. The prosecution called a total of 7 witnesses in support of their case against the two accused persons. The evidence revealed that the two accused persons were arrested by the members of the public who claimed that they had murdered the deceased on 6 th June 2024 within Lucky Summer area. At the time the two accused persons were rescued by police officers from the marauding mob the two accused persons had suffered injuries and the police led by PW1 Inspector Stephen Mutua took them to the hospital for treatment.
4. The deceased WILTERVIN NGESA OLWENY had suffered stab wounds around the chest area that led to his death. PW2 identified the body for the postmortem and the doctor who performed the post mortem concluded that the deceased died as a result of exsanguination secondary to stab wound injury.
5. The court was also presented with a CCTV footage by PW3 which PW3 testified was the evidence that connected the two accused persons to the scene of murder. The court reviewed the footage when it was played in open court. The same captured the scene and the happenings thereat when the deceased suffered the fatal injuries.
6. At this stage the court is not required to determine whether the prosecution has established its case beyond reasonable doubt against the two accused persons. All that the law requires is that the prosecution’s evidence that establishes on a prima facie basis that the deceased died under circumstances that establish that malice aforethought on the part of the person who inflicted the fatal injuries upon the deceased. Section 206 of the Penal code which provides that malice aforethought is established when anyone of the following is established that;-
Malice aforethought
“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—
(a)an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b)knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c)an intent to commit a felony;
(d)an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.
7. This court has considered the totality of the evidence tendered by the prosecution and it is clear that the deceased died as a result of the injuries sustained in the hands of his assailants.
8. The injuries sustained by the deceased point to a malicious intent on the part of the assailants thus satisfying the two key ingredients of the offence of murder on a prima facie basis.
9. A prima facie case is said to be to established whenever the evidence presented before a court on a full consideration thereof is likely to lead a reasonable tribunal properly directing its mind on the evidence and the law to arrive at a finding of guilt against the accused persons in the absence of a reasonable explanation being proffered by the defence.
10. In Republic v Abdi Ibrahim [2013] EKLR a prima facie case was defined as follows:
“Prima facie” is a Latin word defined by Black’s Law Dictionary, 8 th Edition as “Sufficient to establish a fact or raise a presumption unless disproved or rebutted”. “Prima facie case” is defined by the same dictionary as “The establishment of a legally required rebuttable presumption”.
11. And in Ramanlal Trambaklal Bhatt v R [1957] E.A 332 at 334 and 335 , the court stated as follows:
“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we 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 thought sufficient to sustain a conviction.” This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends 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…It is 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.”
12. The totality of the evidence tendered by the prosecution in this case meets the above stated test and, in the circumstances, this court finds that there is reasonable cause to place the two accused persons on their defense.
13. The two accused persons have each a case to answer in line with the provisions of Section 306(2) of the Criminal Procedure Code.
14. It is so ordered.
2. The particulars of offence are that 1. TONY WANJALA MALALA alias "TONY" 2. BECKHAM MULEMA AVUKUSI alias "BECKHAM" on the night of 5 th and 6 th June 2024 at around 0040 hours at Lucky Summer Area in Starehe Sub County within Nairobi County jointly with another not before court murdered WILTERVIN NGESA OLWENY alias "GWAN" alias "SALIM"
3. The prosecution called a total of 7 witnesses in support of their case against the two accused persons. The evidence revealed that the two accused persons were arrested by the members of the public who claimed that they had murdered the deceased on 6 th June 2024 within Lucky Summer area. At the time the two accused persons were rescued by police officers from the marauding mob the two accused persons had suffered injuries and the police led by PW1 Inspector Stephen Mutua took them to the hospital for treatment.
4. The deceased WILTERVIN NGESA OLWENY had suffered stab wounds around the chest area that led to his death. PW2 identified the body for the postmortem and the doctor who performed the post mortem concluded that the deceased died as a result of exsanguination secondary to stab wound injury.
5. The court was also presented with a CCTV footage by PW3 which PW3 testified was the evidence that connected the two accused persons to the scene of murder. The court reviewed the footage when it was played in open court. The same captured the scene and the happenings thereat when the deceased suffered the fatal injuries.
6. At this stage the court is not required to determine whether the prosecution has established its case beyond reasonable doubt against the two accused persons. All that the law requires is that the prosecution’s evidence that establishes on a prima facie basis that the deceased died under circumstances that establish that malice aforethought on the part of the person who inflicted the fatal injuries upon the deceased. Section 206 of the Penal code which provides that malice aforethought is established when anyone of the following is established that;-
Malice aforethought
“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—
(a)an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b)knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c)an intent to commit a felony;
(d)an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.
7. This court has considered the totality of the evidence tendered by the prosecution and it is clear that the deceased died as a result of the injuries sustained in the hands of his assailants.
8. The injuries sustained by the deceased point to a malicious intent on the part of the assailants thus satisfying the two key ingredients of the offence of murder on a prima facie basis.
9. A prima facie case is said to be to established whenever the evidence presented before a court on a full consideration thereof is likely to lead a reasonable tribunal properly directing its mind on the evidence and the law to arrive at a finding of guilt against the accused persons in the absence of a reasonable explanation being proffered by the defence.
10. In Republic v Abdi Ibrahim [2013] EKLR a prima facie case was defined as follows:
“Prima facie” is a Latin word defined by Black’s Law Dictionary, 8 th Edition as “Sufficient to establish a fact or raise a presumption unless disproved or rebutted”. “Prima facie case” is defined by the same dictionary as “The establishment of a legally required rebuttable presumption”.
11. And in Ramanlal Trambaklal Bhatt v R [1957] E.A 332 at 334 and 335 , the court stated as follows:
“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we 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 thought sufficient to sustain a conviction.” This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends 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…It is 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.”
12. The totality of the evidence tendered by the prosecution in this case meets the above stated test and, in the circumstances, this court finds that there is reasonable cause to place the two accused persons on their defense.
13. The two accused persons have each a case to answer in line with the provisions of Section 306(2) of the Criminal Procedure Code.
14. It is so ordered.