REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS CRIMINAL CASE NO. 17 OF 2008 REPUBLIC……………………………………………………….PROSECUTOR VERSUS GERALD MUA NTHIWA …...…..………………………………….…ACCUSED RULING 1. Gerald Mua Nthiwa (the accused) is charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code. Particulars of the offence are that on the 29 th day of February, 2008 at Kikima Market, Mutitie Sub location in Makueni District within Eastern Province murdered Musuu Mbithe(Deceased). 2. At the close of the Prosecution’s case the fact of death was proved by evidence of PW6, Dr. John Mutunga who did a postmortem on the body of the deceased and formed an opinion that the cause of his death was cardiopulmonary arrest secondary to severe head injury. 3. Evidence adduced by PW1 amounts to a dying declaration made by the deceased relating to his death. There is also circumstantial evidence adduced by PW3 tending to connect the accused with the perpetration of offence. 4. In the celebrated case of Ramanlal Trambaklal Bhatt versus Republic [1957] E.A. 332, a prima facie is established when“A reasonable tribunal properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence”. 5. Evidence adduced so far is sufficient to have the accused convicted if he offers no defence. Accordingly, he is called upon to defend himself as provided by Section 306(2) of the Criminal Procedure Code. 6. It is so ordered. DATED, SIGNED and DELIVERED at MACHAKOS this 18TH day FEBRUARY, 2015. L.N. MUTENDE JUDGE
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