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JudgmentThe Republic VS MOFFAT NYAGA THURANIRA9 min read

The Republic VS MOFFAT NYAGA THURANIRA

High Court at Embu High Court · · Lucy Njuguna


  1. The accused person has been charged with the offence of murder contrary to section 203 as read with 204 of the penal code.  The particulars are that on the 24th day of December, 2022 at Riandu sub location Mbeere North sub county within Embu County, the accused murdered Antony Mugo.  The accused pleaded not guilty to the charge and the matter proceeded for hearing. 
  2. At the hearing, PW1 was Godfrey Njuki who testified that he conducted post mortem on the body of the deceased on the 28/12/2022.  On examination, it had a stab wound on the left chest which had lead to fracture of the 2nd and 3rd left ribs with massive bleeding to the chest cavity.  The heart chambers and the main vessels had minimal blood confirming loss of blood.  He concluded that the deceased died of pulmonary insufficiency due to massive bleeding on the left chest cavity, which was caused by a stab wound.  He produced the post-mortem report as an exhibit.
  3. PW2 was Dr. Sheila Shavulimo, a psychiatrist, working at Embu Level (5) Hospital.  She carried out mental assessment of the accused and she found him fit to plead and stand trial.
  4. PW3 was Peter Maina Wanjiru who testified that he is the proprietor of County Paris club, and at the material time when the incident occurred, he had employed the deceased and he was working in the Kitchen.  That he left for Nakuru on the 22/12/2022 and while there, on the 24/12/2022 he received a telephone call from Daisy Karimi who was also his employee who informed him that the deceased was stabbed by a customer.  She further told him that she did not identify the customer. 
  5. It was his further evidence that on receiving the sad news, he called the OCS Siakago Police Station on phone and requested him to send somebody to go and check on what was happening at the scene.  The OCS called him after a few minutes and told him that the deceased had died and that the body had been taken to Embu Level 5 Mortuary.  That when he came back, he tried to make enquiries and he was directed to a plot where the accused was renting.  That he gave the OCS the report and he was given some five (5) Police Officers who accompanied him to the plot.
  6. That on arrival at the plot, the house was locked and when the OCS broke the door he found two people inside whom he arrested and were taken to the Police Station.  He identified the accused as one of those who were found inside the house.  That from the information that he gathered from one Antony Wachira who was a customer in his club when the incident occurred, and from Daisy who was his employee, the deceased was beaten by a customer after he told him to pay his bill.  On cross-examination, he stated that he did not have any evidence in Court as to his ownership of the club and that he did not witness anything on the night when the incident occurred.  That he did not know the accused person before that date.  That he was directed to the house of the accused person by Antony Wachira.
  7. PW4 was Antony Wachira who was stood down as he was not in possession of his original identity card.
  8. P.C Thomas Kiplimo testified as PW5.  He stated that on the 24/12/2022, he was called to accompany the OCS, Siakago Police Station, to a scene of murder that had happened between B.A.T area and Riandu at a bar called Sunrise.  That on arrival, they found the body of young man lying in a pool of blood and a crowd of people who had gathered at the scene.  After interrogation they were told that he was stabbed by people who ran away from the bar.  They were also told that one of the suspects had left his phone charging at the counter.  The OCS took photographs of the body and it was moved to Embu Level (5) mortuary.  That with the help of the members of the public, the OCS Siakago, arrested two suspects and recovered the phone that had been left charging, three knives and two pangas.  That he forwarded the file to the Director of Public Prosecution who recommended the charging of one of the suspects while the other was discharged.
  9. On cross-examination, he stated that the incident happened at sunrise bar and restaurant although it was put to him that the statements by the witnesses stated that it happened at Sipangangwi bar.  He stated that from his investigations, the commotion was caused by a customer who had not paid his bill but he was not given the name of the customer. He was referred to the statement of Daisy, in which, she stated that the customer had been told to remove his gumboots and T-shirt and leave them in the club so that he could bring the money the following day.  That according to him and as per circumstantial evidence, it was the accused person who stabbed the deceased and that he is the one who refused to pay his bill.
  10. The Prosecution closed it’s case.  Under Section 306 of the Criminal Procedure Code, this Court is tasked with making a ruling on whether or not the accused person has a case to answer and whether the prosecution has established a prima facie case.  Section 306 (1) of the Criminal Procedure Code provides;

“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 the several or any one of the 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.”

  1. The court in the case of Republic Vs Abdi Ibrahim Owi (2013) eKLR, defined a prima facie case as follows:

“‘Prima facie’ is a latin word defined by Black’s Law Dictionary 8th Edition as, “sufficient to establish a fact or raise presumption unless disapproved or rebutted”. ‘Prima facie’ is defined by the same dictionary as “the establishment of a legally required rebuttable presumption.”

  1. In other words, a prima facie case is a rebuttable presumption that the accused person is guilty of the offence. In the case of Ramanlal Trambaklal Bhatt Vs. R (1957) E.A 332 at 335, the court stated 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’s case, the case is merely one in which on full consideration might possible 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.……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 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, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence”.

  1. The issue for determination is whether a prima facie case has been established to warrant the accused to be placed on his defence.
  2. Article 26 of the Constitution of Kenya provides that a person shall not be deprived of his life intentionally, except to the extent authorized by the constitution or written law.  The accused person herein is facing a charge of murder contrary to section 203 as read with section 204 of the Penal Code.  Section 203 Provides;

“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

  1. In the case of Republic v W.O.O. [2020] eKLR (Migori High Court Criminal Appeal No. 26 of 2017) the elements of murder were explained, as guided by the Court of Appeal in the case of Anthony Ndegwa Ngari vs Republic [2014] eKLR, as follows:

“For the offence of murder to be proved, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are:

(a) the death of the deceased and the cause of that death;

(b)  the accused committed the unlawful act which caused the death of the deceased and

(c) that the accused had the malice aforethought.”

  1. The first element is the death and the cause of the death.  PW1 testified that the deceased died of pulmonary insufficiency due to massive bleeding on the left chest cavity which had been caused by a stab wound. He observed that the body had a stab wound on the left chest which had led to the fracture of the 2nd and 3rd left ribs with massive bleeding to the chest cavity.
  2. The other element that the prosecution ought to prove is that the accused person is responsible for inflicting the fatal injuries upon the deceased.  The Court has carefully gone through the evidence that was adduced by the prosecution through the four witnesses who testified.  PW1 and PW2 are doctors who carried out the post mortem and who did the mental assessment on the accused person, respectively.  PW3, was the proprietor of the club where the deceased met his death on the fateful night.  It was his evidence that the deceased was his employee at the club and that on the material day when the incident occurred, he was in Nakuru and what he told the Court was hearsay evidence. 
  3. Though he helped the police in arresting two suspects one of whom is the accused person in this case, he could not tell the Court how he connected them to the commission of the offence, save for what he was told by Daisy who was her employee in the bar where the deceased met his death, and from one Antony Wachira who was stood down and the Court did not have the benefit of hearing his evidence because the prosecution did not recall him.     Daisy could also have helped the prosecution’s case, but unfortunately, she was not called as a witness for reasons only known to the prosecution.
  4. The investigating officer’s evidence did not help the prosecution’s case.  He produced some exhibits which he believed were the murder weapons but he did not tender any evidence to connect them to the accused person herein.  According to him, the commotion was caused by a customer who had not paid his bill.  He was not given the name of the customer, or his description to assist him in his investigations yet he stated that as per the circumstantial evidence, that customer was the accused person. From his evidence and especially on cross-examination, it is not clear whether the accused person was in the bar or not when the commotion started.  The weapons that he produced were not mentioned by any of the witnesses who testified.  The identity of the person who stabbed the deceased is so much in doubt as none of the witnesses mentioned his name or described him in a manner that the Court can be satisfied of the identification.
  5. From the cross-examination of PW5 who was the investigating officer, the statements of his own witnesses who did not testify but which had been supplied to the Defence Counsel, exposed the weaknesses of the prosecution case as to the identity of the perpetrator and also the scene where the incident occurred seems not to be clear.
  6. In the circumstances afore-going and considering the evidence that was adduced, I find that the accused person was not properly identified as the person responsible for inflicting the fatal injuries upon the deceased.  I find that the prosecution has not established a prima facie case to warrant the accused person to be placed on his defence.
  7. Consequently, he is hereby acquitted of the charge of murder, under section 306 (a) of the Criminal Procedure Code.

Delivered, dated and signed at Embu this 9th day of October, 2024.


    The Republic VS MOFFAT NYAGA THURANIRA The Republic VS MOFFAT NYAGA THURANIRA