' The four Accused persons herein were jointly charged with two counts of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the charge were that between the nights of 20 th and 21 st March 2023 at Egetugi village, Sungututah Sub-location Gesima location within Masaba North Sub County, jointly with others not before the Court murdered EDWARD MOREMA NYAGECHI in the first count and GRACE MONG’INA MOREMA in the second count.
They all pleaded not guilty to the charges and a trial was thereafter conducted in which presented the evidence of seventeen (17) witnesses who included members of the deceased’s family, their workers, expert witnesses, and police officers involved in the investigations.
A summary of the Prosecution was that the 1 st Accused, a grandson to the deceased couple, had a grudge with the deceased following his conviction and incarceration over theft of money belonging to the deceased couple’s daughter. The Prosecution’s case was that the 1 st Accused was last seen in the home of the deceased couple on the evening of 20 th March 2023 immediately before their death and was positively identified as such by PW1.
The Prosecution’s case against the 2 nd Accused was that she was involved in a bitter succession wrangle with her co-wife over the property of her late husband, Prof. Zachariah Mosoti, and that she was not happy that the deceased, Edward Morema Nyagechi, was at the centre of brokering truce in the said case. It was alleged that the 2 nd Accused issued threats to the 1 st deceased and was the mastermind behind the double murder in which she incorporated her brother (the 3 rd Accused) as a hit man.
The 3 rd Accused was also placed at the scene of crime through his pseudo phone and was later arrested at the Isebania Kenya /Tanzania border town while trying to escape.
The 4 th Accused person was linked to the crime for being not only a close friend to the 3 rd Accused person having previously served prison sentences together at Kamiti Maximum GK Prison but was also identified as the person who received M-Pesa cash transfers from the phone numbers of the two deceased persons.
It is trite that the burden of proof in a criminal case rests on the Prosecution. The duty of the Court at this stage of the trial is to determine whether the Prosecution has established a prima facie case against the Accused persons so as to warrant their being placed on their defence.
Black’s Law Dictionary, 8 th Edition defines “ Prima facie ” as “Sufficient to establish a fact or raise a presumption unless disproved or rebutted or “The establishment of a legally required rebuttable presumption” .
Prima facie case means there exists a rebuttable presumption that an accused person is guilty of the offence he/she is charged with.
The locus classicus case in this regard is Ramanlal Trambaklal Bhatt vs. R [1957] E.A 332 at 334 and 335, where the court pronounced itself 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.”
(See also Wibiro alias Musa v. R [1960] E.A at 186 )
Section 306 (2) of the Criminal Procedure Code provides as follows: -
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.
Section 203 of the Penal Code stipulates as follows: -
230 . Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.
In order to prove the offence of murder, the Prosecution must tender evidence to prove the following ingredients: -
The death of the deceased and the cause of that death.
That the accused committed the unlawful act which caused the death of the deceased.
That the accused had the malice aforethought.
(See also Johnson Njue Peter vs. Republic (2015) eKLR and Halsbury''s Laws of England, ‘Criminal Law’, (Volume 25 (2020) at paragraph 129 )
Section 206 of the Penal Code elucidates what constitutes malice aforethought as follows: -
Intention to cause death of or grievous harm to any person whether that person is the one who actually died on not.
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.
Intent to commit a felony.
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.
I have carefully considered the evidence presented by the Prosecution witnesses and I note that it was established that the deceased persons were brutally murdered on the night of 20/21 st March 2023. The Prosecution witnesses also alleged that the four Accused persons were involved in the commission of the murder. I have also considered the criminal element of mens rea which to my mind is brought out by the ingredient of malice of aforethought. Taking into consideration the manner in which the deceased couple met their deaths, I find that the Prosecution established the third element of the offence of murder.
The court is at this juncture not required to delve into an in-depth analysis analysis on whether the evidence so far presented meets the standard of proof expected in criminal trials. The court’s duty is to establish if the evidences, on the face of it, set out the elements of the charge of murder against each of the four Accused persons. This is anchored on the principles aptly enunciated by the High Court in Tanzania in Republic vs. Jagjivan M. Patel & Others (1) TLR 85 thus: -
“All the court has to decide at the close of evidence of the charge is whether a case is made out against the accused just sufficiently to require him to make a defence, it may be a strong case or it may be a weak case. The court is not required at this stage to apply its mind in deciding finally whether the evidence is worthy of credit or whether, if believed, it is weighty enough to prove the case conclusively, beyond reasonable doubt. A ruling that there is a case to answer would be justified, in my opinion, in a border line case where the court, though not satisfied as to conclusiveness of the prosecution evidence, if yet of the opinion that the case made out is one which on full consideration might possibly be thought sufficient to sustain a conclusion.”
From my consideration of the evidence on record, I am satisfied that the Prosecution presented sufficient evidence to establish a prima facie case against each of the four Accused persons. In the premises, each Accused person is hereby placed on his defence pursuant to the provisions of Section 306 (2) of the Criminal Procedure Code.
It is so ordered.
'
They all pleaded not guilty to the charges and a trial was thereafter conducted in which presented the evidence of seventeen (17) witnesses who included members of the deceased’s family, their workers, expert witnesses, and police officers involved in the investigations.
A summary of the Prosecution was that the 1 st Accused, a grandson to the deceased couple, had a grudge with the deceased following his conviction and incarceration over theft of money belonging to the deceased couple’s daughter. The Prosecution’s case was that the 1 st Accused was last seen in the home of the deceased couple on the evening of 20 th March 2023 immediately before their death and was positively identified as such by PW1.
The Prosecution’s case against the 2 nd Accused was that she was involved in a bitter succession wrangle with her co-wife over the property of her late husband, Prof. Zachariah Mosoti, and that she was not happy that the deceased, Edward Morema Nyagechi, was at the centre of brokering truce in the said case. It was alleged that the 2 nd Accused issued threats to the 1 st deceased and was the mastermind behind the double murder in which she incorporated her brother (the 3 rd Accused) as a hit man.
The 3 rd Accused was also placed at the scene of crime through his pseudo phone and was later arrested at the Isebania Kenya /Tanzania border town while trying to escape.
The 4 th Accused person was linked to the crime for being not only a close friend to the 3 rd Accused person having previously served prison sentences together at Kamiti Maximum GK Prison but was also identified as the person who received M-Pesa cash transfers from the phone numbers of the two deceased persons.
It is trite that the burden of proof in a criminal case rests on the Prosecution. The duty of the Court at this stage of the trial is to determine whether the Prosecution has established a prima facie case against the Accused persons so as to warrant their being placed on their defence.
Black’s Law Dictionary, 8 th Edition defines “ Prima facie ” as “Sufficient to establish a fact or raise a presumption unless disproved or rebutted or “The establishment of a legally required rebuttable presumption” .
Prima facie case means there exists a rebuttable presumption that an accused person is guilty of the offence he/she is charged with.
The locus classicus case in this regard is Ramanlal Trambaklal Bhatt vs. R [1957] E.A 332 at 334 and 335, where the court pronounced itself 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.”
(See also Wibiro alias Musa v. R [1960] E.A at 186 )
Section 306 (2) of the Criminal Procedure Code provides as follows: -
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.
Section 203 of the Penal Code stipulates as follows: -
230 . Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.
In order to prove the offence of murder, the Prosecution must tender evidence to prove the following ingredients: -
The death of the deceased and the cause of that death.
That the accused committed the unlawful act which caused the death of the deceased.
That the accused had the malice aforethought.
(See also Johnson Njue Peter vs. Republic (2015) eKLR and Halsbury''s Laws of England, ‘Criminal Law’, (Volume 25 (2020) at paragraph 129 )
Section 206 of the Penal Code elucidates what constitutes malice aforethought as follows: -
Intention to cause death of or grievous harm to any person whether that person is the one who actually died on not.
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.
Intent to commit a felony.
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.
I have carefully considered the evidence presented by the Prosecution witnesses and I note that it was established that the deceased persons were brutally murdered on the night of 20/21 st March 2023. The Prosecution witnesses also alleged that the four Accused persons were involved in the commission of the murder. I have also considered the criminal element of mens rea which to my mind is brought out by the ingredient of malice of aforethought. Taking into consideration the manner in which the deceased couple met their deaths, I find that the Prosecution established the third element of the offence of murder.
The court is at this juncture not required to delve into an in-depth analysis analysis on whether the evidence so far presented meets the standard of proof expected in criminal trials. The court’s duty is to establish if the evidences, on the face of it, set out the elements of the charge of murder against each of the four Accused persons. This is anchored on the principles aptly enunciated by the High Court in Tanzania in Republic vs. Jagjivan M. Patel & Others (1) TLR 85 thus: -
“All the court has to decide at the close of evidence of the charge is whether a case is made out against the accused just sufficiently to require him to make a defence, it may be a strong case or it may be a weak case. The court is not required at this stage to apply its mind in deciding finally whether the evidence is worthy of credit or whether, if believed, it is weighty enough to prove the case conclusively, beyond reasonable doubt. A ruling that there is a case to answer would be justified, in my opinion, in a border line case where the court, though not satisfied as to conclusiveness of the prosecution evidence, if yet of the opinion that the case made out is one which on full consideration might possibly be thought sufficient to sustain a conclusion.”
From my consideration of the evidence on record, I am satisfied that the Prosecution presented sufficient evidence to establish a prima facie case against each of the four Accused persons. In the premises, each Accused person is hereby placed on his defence pursuant to the provisions of Section 306 (2) of the Criminal Procedure Code.
It is so ordered.
'