1. Thomas Nguli Mwilu alias Carina was charged with murder Contrary to Section 203 as read with Section 204 of the Penal Code. It was alleged that on the night of 14th & 15th June, 2019 at Salama Market in Mukaa Subcounty within Makueni County he jointly with others not before court murdered Emily Ndele David.
2. The accused pleaded not guilty on 3/7/2019 when the charge was read to him.
3. The matter proceeded before Hon. Justice Dulu - he heard PW1 to PW4 , then I heard PW5, 6 ,7 & 8. The prosecution closed its case.
4. The issue for determination is whether it is Section 306 (1) or 306(2) of the Criminal Procedure Code that is applicable -
5. Section 306 of the Criminal Procedure Code provides;
(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
6. If Section 306(1) applies – i.e if the findings is that there is no evidence that the accused committed the offence, then this court is required to record a finding of not guilty - then the court must give reasons for this.
7. If it is Section 306 (2) - which applies , if the court consider that there is evidence that the accused committed the offence - the accused be informed of this rights to address the court, call witnesses if he wishes to and the court is discouraged from giving reasons. The Court of appeal in Antony Njue Njeru [2006] eKLR stated, “We wish to point out here that it is undesirable to give a reasoned ruling at the close of the prosecution case, as the learned judge did here unless the court concerned is acquitting the accused person.”
8. On that principle- it is my view that a prima facie case has been made against the accused person to warrant his being put on the defence pursuant to Section 306(2) of the Criminal Procedure Code.
9. The accused person will be placed on his defence,
Dated, signed and delivered virtually this 23rd August 2024
Mumbua T Matheka
Judge
Ms Mwanatumu Court Assistant
Accused Present
Mr. Makundi for accused
Ms Nyakibia for state