Republic v Lucy Wangui Gichohi

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI Criminal Case 33 of 2006 REPUBLIC………………………….…………………………..……PROSECUTOR VERSUS LUCY WANGUI GICHOHI………………...……….………….………..ACCUSED RULING LUCY WANGUI GICHOHI hereinafter referred to as the ‘accused’ is before this court on the information of the Attorney General dated 13th November 2006 to face a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence are that on the nights of 10 th and 11th August 2006 at Ndugamano Village in Nyeri District within Central Province she murdered Richard Gichohi Kairu. The prosecution was forced to close its case after presenting the evidence of four (4) witnesses when it became apparent that the investigating officer had intentionally refused to bring witnesses to court to testify, for reasons best known to him. Learned counsels appearing in this matter were called upon to make submissions under Section 306 of the Criminal Procedure Code on whether or not the accused should be placed on her defence. That is the subject matter of this ruling. It is the submission of Mr. Muguku, learned advocate for the accused, that the prosecution have failed to make out a prima facie case which would enable this court place the accused person on her defence. Mr. Muguku pointed out that the prosecution had failed to tender the evidence of the investigating officer and that of the doctor. Miss Ngalyuka, learned Senior State Counsel, was of the view that the evidence were sufficient to show that the prosecution had established a prima facie case. I have carefully considered the evidence of the four prosecution witnesses. SAMUEL KIBUKA GATIMU (P.W. 1) told this court that the deceased went to P.W. 1’s house at 2.00 a.m. while writhing in great pain. P.W. 1 claimed the deceased was with serious burns all over the body. P.W.1 and SAMUEL WACHIURI GICHOHI (P.W.2), SAMUEL KAMAINA MURATHA (P.W. 3) and JOHN WARUGONGO (P.W. 4) made arrangements to transport the deceased to Nyeri Provincial General Hospital. While transporting him to hospital, P.W. 1 said that the deceased told him that he suspects his wife (accused) could have burnt him with the house due to the fact that they had separated. The only evidence which tended to link the accused to the offence is the alleged death declaration made to P.W. 1 by the deceased. Unfortunately there was no postmortem report which was produced to establish the cause of death. The death declaration merely implicated the accused as a suspect because the deceased thought that since he had separated with his wife (accused), the accused was on a revenge mission. There was no evidence tendered to show that the accused was at the scene of crime or that she was within the vicinity during the fateful night. There is no doubt that the postmortem report was not produced due to the laxity of the Police investigating the offence. In such a case, even if there was clear evidence as to who committed the offence, it was necessary for the cause of death to be established in order for the prosecution to prove a prima facie case. In the case of HILLARY BWIRE WAFULA =VS= R CRIMINAL

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