RULING ON CASE TO ANSWER
1. This case was initially registered as Eldoret High Court Criminal Case No. 5 of 2016 before it was transferred here when a High Court sub-Registry was opened in Iten. It has therefore been in Court for about 8 years so far.
2. The accused was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that on 8/08/2015 at around 2030 hrs, together with others not before Court, in Tonongoi Village, Emsea Sub-location, Kibargoi location within Elgeyo Marakwet County, he murdered one Frankline Kiprop Koima.
3. The accused is represented by Mr. Okara Advocate. From the record, the accused took plea on 20/01/2016 before Hon. Lady Justice Githua. He denied the charge and a plea of not guilty was entered. His application to be released on bond was then allowed on 4/8/2016.
4. The hearing eventually commenced on 2/06/2021 before Hon. Lady Justice Sewe who took the evidence of PW1. Upon the Judge being transferred, Hon. Justice Ogola took over the matter and on 10/11/2020, he took the evidence of PW2. Again, upon the said Judge also being transferred, I came in and took over the matter. When the case came up for directions on 1/2/2024, Prosecution Counsel, Ms. Ayuma, informed the Court that the Investigating Officer was unable to trace the remaining witnesses and therefore proposed to close the Prosecution case.
5. Before accepting the Prosecution’s request to close its case, I directed that I would wish to first hear the victim’s family and their views and directed that they be notified to attend Court for the said purpose. It is not clear whether the family was so notified but be that as it may, the fact is that they never attended Court as I had directed.
6. In the circumstances, I accepted the Prosecution’s formal closure of its case on 3/10/2024, which was formally done by Prosecution Counsel Mr. Kirui.
7. I am now to rule on whether the accused has a “case to answer”. Although I granted the parties leave to file Submissions, neither did so.
Prosecution evidence
8. PW1, Joseph Kimeli Chebii, testified that he resides at Emsea in Kabargoi location, that on 8/8/2015 at about 8:00 pm, he had come from Iten and when he reached the gate to his home, he heard some screams from across the road towards his home, and that he then saw “Frankline” (deceased) running towards him. He stated that it was the deceased who was screaming and asked PW1 for help, that the deceased told PW1 that he had been beaten by his brothers, that immediately thereafter, 6 brothers of the deceased appeared and whom PW1 knew as they are cousins, and that one them by the name Gilbert told PW1 that they were annoyed because the deceased had beaten their parents. PW1 told the Court that he was able to see the people because the headlights of his car were still on, and that Gilbert told him that they had come to arrest Frankline to take him to the Chief. He stated that he then telephoned the Chief who told them to take the deceased to him. He stated that he therefore left them to do so and went home and slept.
9. He further testified that the following morning, he woke up at 7:00 am and went to Eldoret to run his errands when at about 2:00 pm, the Chief called and told him that the deceased had been taken to Tambach Hospital, that the Chief asked him about the 6 men who had followed the deceased to PW1’s gate upon which PW1 told him that the 6 were Gilbert and his brothers and that he did not see the others well but that Gilbert had told him that they were his brothers. PW1 told the Court that he later got to know from the Chief that the deceased had died. He confirmed that Gilbert was not before Court and the person before Court was Laban (accused, whom he identified) who is a village-mate and whose relationship with the deceased he did not know. He reiterated that he did not see the other 5 other well but that it is Gilbert who told him that they were his brothers. He stated that he did not know whether the accused was among the group of 6.
10. PW2, William Kibii Chemwok, testified that he was the area Chief of Bargoi location. He told the Court that he remembers the deceased, Frankline Kiprop, as his subject but did not know the accused. He stated that on 9/08/2015 at about 10:00 am, the Officer Commanding the local Police Station (OCS) called and asked him whether he knew the deceased and told him that the deceased had been killed by his brothers then asked him to investigate and arrest the suspects. PW2 told the Court that he knew the home of the deceased but he did not know the names of his brothers, that he then got 2 Administration Police (AP) Officers from Biritumo AP Camp with whom he went to the area village elder, who told him that there were about 6 men who lived in their mother’s house. PW2 stated that he then got reinforcement of about 5 police officers and went with them to the home of the accused but did not find the brothers, that they did not therefore make any arrest on that day and that he did not also see the deceased on that day. He testified that he later heard that the accused had been arrested. He told the Court that as the Chief, he had heard that the deceased had beaten the father and mother and that this is the reason why he was beaten up by his brothers.
Determination
11. Section 306 of the Criminal Procedure Code requires the Court, after closure of the prosecution’s case, to make a considered determination on whether an accused person has a case to answer. The section provides as follows:
“306(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 on his own behalf or make unsworn statement and to call witnesses in his defence …...”
12. At this stage, the Court is only considering whether the accused has “a case to answer” and which was described by G. Dulu J in the case of Republic vs Joseph Shitandi & Another [2014] eKLR as follows:
“A case to answer is a case where if the accused keeps quiet, the evidence of the prosecution should be such that a conviction will result.”
13. The procedure in determining whether an accused has a case to answer was discussed in the case of Republic vs Samuel Karanja Kiria [2009] eKLR where J.B Ojwang J (as he then was) stated the following:
“The question at this stage is not whether or not the accused is guilty as charged but whether there is cogent evidence of his connection with the circumstances in which killing of deceased occurred. That the concept of prima facie case dictates as a matter of law that an opportunity created by this court for the accused to state his own case regarding the killing. The governing law on this point is well settled ... The Court of Appeal in Criminal Appeal No. 77/2006 expressed that too detailed analysis of evidence stage at no case to answer stage is undesirable in the court is going to put accused on his defence as too much details in the trial court’s ruling could then compromise the evidentiary quality of the defence to be mounted.”
14. The trial Court is cautioned that, at this stage, it should not make definitive findings should it conclude that the accused has a case to answer. In this regard, in Festo Wandera Mukando vs Republic [1980] KLR 103, E. Trevelyan J stated as follows:
“...we 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, and an extreme case, may require an appellate court to set aside an otherwise sound judgment. Where a submission of “no case” to answer 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.” [Emphasis mine]
15. As regards Section 210 of the Criminal Procedure Code, it provides as follows:
“If at the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as the prosecutor and the accused person or his advocate may wish to put forward, it appears to the Court that a case is not made out against the accused person sufficiently to require him to make a defence, the Court shall dismiss the case and shall forthwith acquit him.”
16. What amounts to a “prima facie” case under the equivalent of the provisions of Section 210 was considered by the Court of Appeal in Ramanlal Bhatt Vs. R (1957) EA 332 thus:
“It is true that the Court is not required at this stage to decide finally whether the evidence is worthy of credit, or whether if believed is weighty enough to prove conclusively, that final determination can only be properly made when the case for defence has been heard. It may not be easy to define what is meant by prima-facie case but it must mean one which a reasonable tribunal properly directing its mind to the law and the evidence could convict if no explanation was offered by the defence.”
17. Applying these principles to the current case, it is my judgment that there is no available direct evidence that the accused person killed the deceased. PW1’s evidence is simply that he was driving back home at night and when he reached the gate to his home, the deceased came running and screaming that he was under attack from his brothers and sought help from PW1, that soon thereafter, 6 men also emerged, in hot pursuit of the deceased. All PW1 said is that among the 6, he identified one Gilbert who is a brother to the deceased and who claimed that they wanted to take the deceased to the Chief because he had beaten up their mother. PW1 then only stated that he referred the group, together with the deceased, to the Chief, whom he spoke to on phone at that time and that thereafter he entered his house and went to sleep. He was emphatic that he never identified any other person in the pursuing group save for the said Gilbert and that he did not know whether the accused was one of them. His only other testimony is that he later learnt, on the next day, that the deceased had been killed.
18. On his part, PW2, the area Chief, simply stated that he received a telephone call from the Officer commanding the local Police Station (OCS) informing him that the deceased had been killed by his brothers and requesting him to go the home and arrest the accused. He then stated that he indeed got police officers and went to the home but did not find the brothers and that he later heard that the accused had been arrested.
19. The above therefore is the entire state of the prosecution evidence presented.
20. Section 203 of the Penal Code provides as follows:
“Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.”
21. It is therefore clear, from the above, that for the charge of “murder” to be established, there are two ingredients that have to be proved. These are the “Acteus Rea” and the “Mens Rea”. Evidently, the evidence on record does not disclose or establish any prima facie foundation for establishment of the two ingredients. It is clear that in the event that the accused opts to keep quiet in his defence, no properly constituted tribunal directing its mind judiciously can, on the basis of the evidence presented, convict him for the offence of murder.
22. In the circumstances, I find and hold that no sufficient case has been made out against the accused person warranting this Court to put him on his defence.
23. Consequently, I dismiss the murder charge and case facing the accused person and acquit him under the provisions of Section 210 of the Criminal Procedure Code. Consequently, the accused person is hereby directed to be released from custody forthwith unless otherwise lawfully held.
DELIVERED, DATED AND SIGNED AT ELDORET THIS 6TH DAY OF NOVEMBER 2024
……………………………
WANANDA J. ANURO
JUDGE
Delivered in the presence of:
………………….
………………….
Court Assistant: Brian Kimathi
1. This case was initially registered as Eldoret High Court Criminal Case No. 5 of 2016 before it was transferred here when a High Court sub-Registry was opened in Iten. It has therefore been in Court for about 8 years so far.
2. The accused was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that on 8/08/2015 at around 2030 hrs, together with others not before Court, in Tonongoi Village, Emsea Sub-location, Kibargoi location within Elgeyo Marakwet County, he murdered one Frankline Kiprop Koima.
3. The accused is represented by Mr. Okara Advocate. From the record, the accused took plea on 20/01/2016 before Hon. Lady Justice Githua. He denied the charge and a plea of not guilty was entered. His application to be released on bond was then allowed on 4/8/2016.
4. The hearing eventually commenced on 2/06/2021 before Hon. Lady Justice Sewe who took the evidence of PW1. Upon the Judge being transferred, Hon. Justice Ogola took over the matter and on 10/11/2020, he took the evidence of PW2. Again, upon the said Judge also being transferred, I came in and took over the matter. When the case came up for directions on 1/2/2024, Prosecution Counsel, Ms. Ayuma, informed the Court that the Investigating Officer was unable to trace the remaining witnesses and therefore proposed to close the Prosecution case.
5. Before accepting the Prosecution’s request to close its case, I directed that I would wish to first hear the victim’s family and their views and directed that they be notified to attend Court for the said purpose. It is not clear whether the family was so notified but be that as it may, the fact is that they never attended Court as I had directed.
6. In the circumstances, I accepted the Prosecution’s formal closure of its case on 3/10/2024, which was formally done by Prosecution Counsel Mr. Kirui.
7. I am now to rule on whether the accused has a “case to answer”. Although I granted the parties leave to file Submissions, neither did so.
Prosecution evidence
8. PW1, Joseph Kimeli Chebii, testified that he resides at Emsea in Kabargoi location, that on 8/8/2015 at about 8:00 pm, he had come from Iten and when he reached the gate to his home, he heard some screams from across the road towards his home, and that he then saw “Frankline” (deceased) running towards him. He stated that it was the deceased who was screaming and asked PW1 for help, that the deceased told PW1 that he had been beaten by his brothers, that immediately thereafter, 6 brothers of the deceased appeared and whom PW1 knew as they are cousins, and that one them by the name Gilbert told PW1 that they were annoyed because the deceased had beaten their parents. PW1 told the Court that he was able to see the people because the headlights of his car were still on, and that Gilbert told him that they had come to arrest Frankline to take him to the Chief. He stated that he then telephoned the Chief who told them to take the deceased to him. He stated that he therefore left them to do so and went home and slept.
9. He further testified that the following morning, he woke up at 7:00 am and went to Eldoret to run his errands when at about 2:00 pm, the Chief called and told him that the deceased had been taken to Tambach Hospital, that the Chief asked him about the 6 men who had followed the deceased to PW1’s gate upon which PW1 told him that the 6 were Gilbert and his brothers and that he did not see the others well but that Gilbert had told him that they were his brothers. PW1 told the Court that he later got to know from the Chief that the deceased had died. He confirmed that Gilbert was not before Court and the person before Court was Laban (accused, whom he identified) who is a village-mate and whose relationship with the deceased he did not know. He reiterated that he did not see the other 5 other well but that it is Gilbert who told him that they were his brothers. He stated that he did not know whether the accused was among the group of 6.
10. PW2, William Kibii Chemwok, testified that he was the area Chief of Bargoi location. He told the Court that he remembers the deceased, Frankline Kiprop, as his subject but did not know the accused. He stated that on 9/08/2015 at about 10:00 am, the Officer Commanding the local Police Station (OCS) called and asked him whether he knew the deceased and told him that the deceased had been killed by his brothers then asked him to investigate and arrest the suspects. PW2 told the Court that he knew the home of the deceased but he did not know the names of his brothers, that he then got 2 Administration Police (AP) Officers from Biritumo AP Camp with whom he went to the area village elder, who told him that there were about 6 men who lived in their mother’s house. PW2 stated that he then got reinforcement of about 5 police officers and went with them to the home of the accused but did not find the brothers, that they did not therefore make any arrest on that day and that he did not also see the deceased on that day. He testified that he later heard that the accused had been arrested. He told the Court that as the Chief, he had heard that the deceased had beaten the father and mother and that this is the reason why he was beaten up by his brothers.
Determination
11. Section 306 of the Criminal Procedure Code requires the Court, after closure of the prosecution’s case, to make a considered determination on whether an accused person has a case to answer. The section provides as follows:
“306(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 on his own behalf or make unsworn statement and to call witnesses in his defence …...”
12. At this stage, the Court is only considering whether the accused has “a case to answer” and which was described by G. Dulu J in the case of Republic vs Joseph Shitandi & Another [2014] eKLR as follows:
“A case to answer is a case where if the accused keeps quiet, the evidence of the prosecution should be such that a conviction will result.”
13. The procedure in determining whether an accused has a case to answer was discussed in the case of Republic vs Samuel Karanja Kiria [2009] eKLR where J.B Ojwang J (as he then was) stated the following:
“The question at this stage is not whether or not the accused is guilty as charged but whether there is cogent evidence of his connection with the circumstances in which killing of deceased occurred. That the concept of prima facie case dictates as a matter of law that an opportunity created by this court for the accused to state his own case regarding the killing. The governing law on this point is well settled ... The Court of Appeal in Criminal Appeal No. 77/2006 expressed that too detailed analysis of evidence stage at no case to answer stage is undesirable in the court is going to put accused on his defence as too much details in the trial court’s ruling could then compromise the evidentiary quality of the defence to be mounted.”
14. The trial Court is cautioned that, at this stage, it should not make definitive findings should it conclude that the accused has a case to answer. In this regard, in Festo Wandera Mukando vs Republic [1980] KLR 103, E. Trevelyan J stated as follows:
“...we 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, and an extreme case, may require an appellate court to set aside an otherwise sound judgment. Where a submission of “no case” to answer 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.” [Emphasis mine]
15. As regards Section 210 of the Criminal Procedure Code, it provides as follows:
“If at the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as the prosecutor and the accused person or his advocate may wish to put forward, it appears to the Court that a case is not made out against the accused person sufficiently to require him to make a defence, the Court shall dismiss the case and shall forthwith acquit him.”
16. What amounts to a “prima facie” case under the equivalent of the provisions of Section 210 was considered by the Court of Appeal in Ramanlal Bhatt Vs. R (1957) EA 332 thus:
“It is true that the Court is not required at this stage to decide finally whether the evidence is worthy of credit, or whether if believed is weighty enough to prove conclusively, that final determination can only be properly made when the case for defence has been heard. It may not be easy to define what is meant by prima-facie case but it must mean one which a reasonable tribunal properly directing its mind to the law and the evidence could convict if no explanation was offered by the defence.”
17. Applying these principles to the current case, it is my judgment that there is no available direct evidence that the accused person killed the deceased. PW1’s evidence is simply that he was driving back home at night and when he reached the gate to his home, the deceased came running and screaming that he was under attack from his brothers and sought help from PW1, that soon thereafter, 6 men also emerged, in hot pursuit of the deceased. All PW1 said is that among the 6, he identified one Gilbert who is a brother to the deceased and who claimed that they wanted to take the deceased to the Chief because he had beaten up their mother. PW1 then only stated that he referred the group, together with the deceased, to the Chief, whom he spoke to on phone at that time and that thereafter he entered his house and went to sleep. He was emphatic that he never identified any other person in the pursuing group save for the said Gilbert and that he did not know whether the accused was one of them. His only other testimony is that he later learnt, on the next day, that the deceased had been killed.
18. On his part, PW2, the area Chief, simply stated that he received a telephone call from the Officer commanding the local Police Station (OCS) informing him that the deceased had been killed by his brothers and requesting him to go the home and arrest the accused. He then stated that he indeed got police officers and went to the home but did not find the brothers and that he later heard that the accused had been arrested.
19. The above therefore is the entire state of the prosecution evidence presented.
20. Section 203 of the Penal Code provides as follows:
“Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.”
21. It is therefore clear, from the above, that for the charge of “murder” to be established, there are two ingredients that have to be proved. These are the “Acteus Rea” and the “Mens Rea”. Evidently, the evidence on record does not disclose or establish any prima facie foundation for establishment of the two ingredients. It is clear that in the event that the accused opts to keep quiet in his defence, no properly constituted tribunal directing its mind judiciously can, on the basis of the evidence presented, convict him for the offence of murder.
22. In the circumstances, I find and hold that no sufficient case has been made out against the accused person warranting this Court to put him on his defence.
23. Consequently, I dismiss the murder charge and case facing the accused person and acquit him under the provisions of Section 210 of the Criminal Procedure Code. Consequently, the accused person is hereby directed to be released from custody forthwith unless otherwise lawfully held.
DELIVERED, DATED AND SIGNED AT ELDORET THIS 6TH DAY OF NOVEMBER 2024
……………………………
WANANDA J. ANURO
JUDGE
Delivered in the presence of:
………………….
………………….
Court Assistant: Brian Kimathi