RULING
1. The accused persons were jointly charged with five counts of murder c/s 203 as read with s. 204 of the Penal Code.
2. The particulars were that on 24th November 2019 at Nyunzu Trading Centre within Makueni County they murdered their sister Regina Mueni, her children Faith Mangeli, Angel and Amelia MMasaba, and their mother Monica Matolo.
3. They took plea before Hon Ong’udi J on 4th February 2020 where they each pleaded not guilty. They were represented by Mr. Maanzo and Mr. Hassan.
4. By the time of the hearing they were all out on bond.
5. The trial proceeded before Hon Dulu J.
6. He heard PW1, 2 ,3 ,4 and 5 i.e. the chief, the village elder, two neighbours and the scenes of crime officer.
7. Upon our respective transfers I took over the matter and heard PW6, 7,8,9,10,11,12 and 13. i.e. the government analyst, the arresting officer for the 1st accused, two pathologists, a taxi driver, the husband of Regina and father of her children, an officer from Safaricom who produced call data and the Investigating Officer.
8. The case for the prosecution is that the accused persons are children of Monica (deceased) and brothers of Regina (deceased). That Monica had decided to distribute her land among her children but her brothers were vehemently against her giving any land to Regina. That on the day of the incident Regina had collected her mother from the home of the 1st accused in order to take her to hospital the following day.
9. The prosecution’s case is that the brothers believed that she did that so as to ensure that their mother transferred the land to her.
10. It is the prosecution’s case that that night of 24th November 2019, while they were all sleeping in the house of Regina, the accused persons set the house on fire causing all the deaths herein.
11. It is also the case for the prosecution that the pathologists confirmed that the Regina and her children sustained between 67% and 100%burns, their mother, 10% burns, her death resulting from a pulmonary clot.
12. The prosecution’s case is that on the morning of 25th November 2019, the 1st accused was seen by witnesses with visible burns on his hands and face.
13. It is their case that the investigations showed that the five accused persons committed this offence in that there was evidence that they were in communication on the night of the fire, that they never went to the scene after the fire despite the information spreading like wildfire in the area and over the news. That they never visited their mother or their sister in hospital.
14. At the close of the case for the prosecution s. 306 of the Criminal Procedure Code directs the court 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, 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.
15. I have considered the evidence on record and the evidence I heard.
16. The issue is whether the prosecution has established a prima facie case upon which each of the accused persons ought to be put on the defence.
17. In Ramanlal Trambaklal Bhatt v R [1957] E.A 332 at 335, the court, in defining a prima facie case, stated:
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.”
18. At this stage of the proceedings as the trial court I am not to concern myself with the standard of proof required to convict which is normally beyond reasonable doubt. The issue for determination is limited to whether the evidence before me is sufficient to warrant the accused being placed on the defence.
19. I am also guided by the caution not to give detailed reasons for my decisions at this. The Court of Appeal in Festo Wandera Mukando vs The Republic [1980] KLR 103 the learned justices held that: “…we once more draw attention to the inadvisability of giving reasons for holding that an accused has a case to answer. It can prove embarrassing to the court and, in an extreme case, may require an appellate court to set aside an otherwise sound judgement. Where a submission of “no case” is rejected, the court should say no more than that it is. It is otherwise where the submission is upheld when reasons should be given; for then that is the end to the case or the count or counts concerned.”
20. This case involves 5 accused persons and I have to determine whether there is a prima facie case against each one of them. I have to give a minimum or reasons here and to leave the rest of the reasons to the Judgment.
21. From the evidence before me the Investigation officer ruled out the 5th accused, to the effect that he had nothing to connect him with the offence.
22. With regard to the 1st, 2nd, 3rd and 4th accused, I am of the view from the evidence on record that there is a prima facie case to warrant each being put in the defence. Hence at this stage s. 306(2) of the Criminal Procedure Code is applicable to the 1st, 2nd, 3rd and 4th accused persons. Each will be placed on his defence in accordance with s. 306(2).
23. With respect to the 5th Accused I find that s. 306(1) of the CPC applies to him. I enter a finding of not guilty, dismiss the charges against him and acquit hi accordingly.
24. Orders Accordingly
Dated, signed and delivered in open court this 13th March 2025
Mumbua T Matheka
Judge
Court Assistant Ms. Nelima
Mr. Kazungu for state
Accused
1present
2 present
3 present
4 present
5 present
Mr Hassan for the accused