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The accused person is charged with the offence contrary to Section 203 as read with 204 of the Penal Code and particulars of the offence are that on 21 st February 2023 jointly with others not before court at Mathare, Bondeni Area, Starehe Sub-county within Nairobi County murdered Patrick Muliungi Muingi.
The prosecution called a total of 10 witnesses in support of the case. At the close of the prosecution case, MS Dela prosecution counsel submitted that the prosecution’s case was predicated upon the doctrine of what “last seen with” and that the prosecution had established the case on a prima facie basis.
Counsel urged the court to place the accused on her defence since the evidence tendered by the prosecution on full consideration might possibly lead to a conviction if the court properly directs its mind on the same.
According Ms Dela the prosecution had established this case to the required standard and therefore the court should be inclined to place her on her defence.
Counsel also relied on circumstantial evidence and urged the court to consider that the circumstances of the case taken together irresistibly point to the accused person as being the person who may have caused the death of the deceased.
The defence on the other hand urged the court to find that the prosecution had not established a prima facie case to warrant the accused being placed on her defence. The defence cited a number of authorities in support of their argument which this court has duly considered.
Section 306 of the Criminal Procedure Code provides;-
Close of case for prosecution
(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.
This court has considered the evidence so far tendered by the prosecution and the legal arguments made by counsel. On a full consideration of the evidence and the law this court finds that a prima facie case has been made against the accused person. What so far has been received by the court cannot be regarded as worthless discredited evidence by prosecution witnesses. It is evidence that establishes a prima facie case warranting this court to put the accused person to her defense.
This is not meant to mean that the court is shifting the burden of proof to the accused person as the duty to prove the case beyond a reasonable doubt remains that of the prosecution. The accused person has a case to answer.
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.”
The above test is the proper test to apply at this stage of the proceedings. To say more at this stage or to engage into an exhaustive examination of the evidence on record would be prejudicial to the accused person.
In the end I find that the accused person has a case to answer and is hereby put to her defense.
It is so ordered.
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The accused person is charged with the offence contrary to Section 203 as read with 204 of the Penal Code and particulars of the offence are that on 21 st February 2023 jointly with others not before court at Mathare, Bondeni Area, Starehe Sub-county within Nairobi County murdered Patrick Muliungi Muingi.
The prosecution called a total of 10 witnesses in support of the case. At the close of the prosecution case, MS Dela prosecution counsel submitted that the prosecution’s case was predicated upon the doctrine of what “last seen with” and that the prosecution had established the case on a prima facie basis.
Counsel urged the court to place the accused on her defence since the evidence tendered by the prosecution on full consideration might possibly lead to a conviction if the court properly directs its mind on the same.
According Ms Dela the prosecution had established this case to the required standard and therefore the court should be inclined to place her on her defence.
Counsel also relied on circumstantial evidence and urged the court to consider that the circumstances of the case taken together irresistibly point to the accused person as being the person who may have caused the death of the deceased.
The defence on the other hand urged the court to find that the prosecution had not established a prima facie case to warrant the accused being placed on her defence. The defence cited a number of authorities in support of their argument which this court has duly considered.
Section 306 of the Criminal Procedure Code provides;-
Close of case for prosecution
(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.
This court has considered the evidence so far tendered by the prosecution and the legal arguments made by counsel. On a full consideration of the evidence and the law this court finds that a prima facie case has been made against the accused person. What so far has been received by the court cannot be regarded as worthless discredited evidence by prosecution witnesses. It is evidence that establishes a prima facie case warranting this court to put the accused person to her defense.
This is not meant to mean that the court is shifting the burden of proof to the accused person as the duty to prove the case beyond a reasonable doubt remains that of the prosecution. The accused person has a case to answer.
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.”
The above test is the proper test to apply at this stage of the proceedings. To say more at this stage or to engage into an exhaustive examination of the evidence on record would be prejudicial to the accused person.
In the end I find that the accused person has a case to answer and is hereby put to her defense.
It is so ordered.
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