RULING
1. The accused person was charged with murder c/s 203 as read with s. 204 of the Penal Code in Machakos HCCRC 41 of 2012 together with ERIC MASESE ARISI . The particulars were that on 15th November 2012 at Wote Town within Makueni District Makueni County they murdered McAlphine Ogise.
2. They took plea before Hon Jaden J on 9th May 2013 where they pleaded not guilty. It went through the hands of Mutende J, Nyamweya J ( as she then was) , Ogola J,
3. The accused were released on bond on 4th March 2013.
4. On 1st March 2017 the matter was transferred to Makueni by Kemei J and acquired the new number.
5. On 6th March 2018 the court was told that the 1st accused ( Eric Masese Arisi) had died on 26th November 2017.
6. On 21st may 2018 the Judge marked the cased against the 1st accused as abated and directed that the natter proceedes as against the 2nd accused.
7. The matter proceeded before C.Kariuki J on 21st May 2018.
8. The particulars were that on 15th November 2012 at Wote Town within Makueni District Makueni County they murdered McAlphine Ogise. Hon C. Kariuki J heard PW1, PW2 and PW3. The Hon Ong’udi J heard PW4, 5 and 6 . The matter was before the Hon Dulu J from 27/11/2020 to 23/2/2023.
9. It is on the latter date that the Doctor appeared but the Judge was already on transfer.
10. I took over on 30th May 2023.
11. I gave prosecution a last adjournment on 19th June 2023.
12. A doctor was availed on 18th September 2024 to produce the post-mortem report.
13. The I.O never showed up either in person or virtually and the prosecution closed its case.
14. The cause of death of the 9 year old deceased was asphyxia from manual strangulation. The body had other injuries as well on the head, , the chest, collar bone the deceased was not from natural causes.
15. 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.
16. I have considered the evidence on record. I am limited by the fact that I never heard any of the witnesses testify save for the doctor. However, it appears to me that there is evidence that places the accused at the scene of the death in circumstances that make it inevitable for this court to draw that conclusion that
17. That at this stage s. 306(2) of the Criminal Procedure Code is applicable to him.
18. I find that the accused person has a case to answer and will be placed on his defence in accordance with s. 306(2) of the CPC.
Orders Accordingly
Dated, signed and delivered virtually on 4th April 2025
Mumbua T Matheka
Judge
Ms. Chrispol
Accused present in court
Mr Hassan for the accused
For the State Kazungu