1. Hudson Ombagi Nyamamba, the Accused, is charged with Murder contrary to Section 203 as read with section 204 of the Penal Code. Particulars being that on 24/12/2020 at Silale area of Maina Location in Nyahururu Sub-County within Laikipia County, he murdered Traphoita Joshua (Deceased).
2. At the close of the prosecution’s case, this court is required to establish if a prima facie case has been made out requiring the accused to be placed on his defence. In the celebrated case of Ramanlal Trambaklal Bhatt v Republic [1957] E.A 332, it was stated that:
“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot argue that a prima facie 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 could 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 argue 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.”
ii. 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 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.”
3.This is a case where the accused was the step-father of the deceased, and on the fateful date, PW1 Lister Nyanjama Onchiri, the deceased’s mother, left the accused at home with the deceased going to wash clothes at the river. Upon returning the accused alleged that the victim had fallen off a motorcycle and was injured. She proposed that they take him to hospital but the accused declined, and even told her to go collect the remaining clothes from the river.
4. On her return he told her that the child was not talking. She entered the house to find the child lying on the seat and was unresponsive. She advised that they report the matter to the Authority but the accused declined, tied her up and buried the child in a hole that had water. In the meantime, he continued mistreating and assaulting her in the course of their stay.
5. One day the accused ordered her to get her other child who was at their rural home when schools closed and she complied. On an unspecified day, he went to get the child CBC books and on return he found the cows he had tethered missing. He beat up the child and threatened to cut PW1 into pieces an act that made her run to the Police Station with the child where they made a report.
6. Investigations were carried out which culminated into exhumation of mortal remains of the deceased. A femur bone of the deceased was taken to the government chemist and compared to DNA profiles generated from PW1 and there were 99.99+ % more chances that the PW1 was the mother of the donor of the femur bone.
7. Further, the post mortem report conducted established that the cause of death was neck compression with generalized soft tissue injuries consistent with flogging.
8. Evidence adduced is circumstantial, but, would require some explanation by the Accused as to what transpired. Therefore, I am satisfied that the prosecution has demonstrated a prima facie case against the accused as defined in the case of Bhatt v Republic (supra), that requires him to address the court in his defence pursuant to the provisions of Section 306(2) of the Criminal Procedure Code.
9. It is so ordered.
2. At the close of the prosecution’s case, this court is required to establish if a prima facie case has been made out requiring the accused to be placed on his defence. In the celebrated case of Ramanlal Trambaklal Bhatt v Republic [1957] E.A 332, it was stated that:
“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot argue that a prima facie 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 could 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 argue 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.”
ii. 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 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.”
3.This is a case where the accused was the step-father of the deceased, and on the fateful date, PW1 Lister Nyanjama Onchiri, the deceased’s mother, left the accused at home with the deceased going to wash clothes at the river. Upon returning the accused alleged that the victim had fallen off a motorcycle and was injured. She proposed that they take him to hospital but the accused declined, and even told her to go collect the remaining clothes from the river.
4. On her return he told her that the child was not talking. She entered the house to find the child lying on the seat and was unresponsive. She advised that they report the matter to the Authority but the accused declined, tied her up and buried the child in a hole that had water. In the meantime, he continued mistreating and assaulting her in the course of their stay.
5. One day the accused ordered her to get her other child who was at their rural home when schools closed and she complied. On an unspecified day, he went to get the child CBC books and on return he found the cows he had tethered missing. He beat up the child and threatened to cut PW1 into pieces an act that made her run to the Police Station with the child where they made a report.
6. Investigations were carried out which culminated into exhumation of mortal remains of the deceased. A femur bone of the deceased was taken to the government chemist and compared to DNA profiles generated from PW1 and there were 99.99+ % more chances that the PW1 was the mother of the donor of the femur bone.
7. Further, the post mortem report conducted established that the cause of death was neck compression with generalized soft tissue injuries consistent with flogging.
8. Evidence adduced is circumstantial, but, would require some explanation by the Accused as to what transpired. Therefore, I am satisfied that the prosecution has demonstrated a prima facie case against the accused as defined in the case of Bhatt v Republic (supra), that requires him to address the court in his defence pursuant to the provisions of Section 306(2) of the Criminal Procedure Code.
9. It is so ordered.