Republic v Juilus Kiprop Alias Salim Rashid

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KERICHO CRIMINAL CASE NO.51 OF 2013 REPUBLIC..................................................PROSECUTOR VS JUILUS KIPROP ALIAS SALIM RASHID.....ACCUSED RULING 1. The accused in this matter, Julius Kiprop Alias Salim Rashid, has been charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that on the 2 nd day of November 2013 at Majengo area in Kericho County, jointly with others not before court, he unlawfully murdered Mercy Cherono. 2. The prosecution called 5 witnesses and produced the post mortem report in respect of the deceased, then closed its case. On behalf of the accused, Learned Counsel, Mr. Motanya, submitted that the prosecution had not established a prima facie case against the accused. The prosecution in this case was only able to give evidence on the fact of death and cause of death. In order for the accused to be convicted, there should be water tight evidence that directly connects him to the death of the deceased. 3. It was Mr. Motanya’s submission further that all the evidence against the accused was based on suspicion or hearsay. None of the witnesses had witnessed the fight between the accused, and the deceased. From the defence Counsel’s analysis of the prosecution evidence, none of the prosecution witnesses gave any evidence that connected the accused to the death of the deceased. 4. Mr. Motanya relied on the decision in Sawe vs Republic (2003)KLR 364 to submit that the state had failed to establish that the acts of the accused caused the death of the deceased. It was also his submission that the prosecution had failed to establish malice aforethought against the accused. 5. Ms. Keli for the state indicated that the state would rely on the evidence on record. 6. I have considered the prosecution evidence on record and the submissions of Counsel for the accused. At this stage, the only issue I need to address my mind to is whether or not the prosecution has established a prima facie case against the accused. In Ramanlal Trambaklal Bhatt vs R [1957] E.A 332 at 334 and 335, the court stated as follows with respect to what amounts to a prima facie case: “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 tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.” 7. I also bear in mind the decision of the court in R vs Jagjiwan M. Patel and Others (1) T.L.R. (R) 85 in which the court stated: “…..all the court has to decide at the close of the evidence in support of the charge is whether a case is made out against the accused just sufficiently to require him to make his defence. It may be a strong case or it may be a weak case. The court is not required at this stage to apply its mind in deciding finally whether the evidence is worthy of credit or whether, if believed, it is weighty enough to prove the case conclusively, beyond reasonable doubt. A ruling that there is a case to answer would be justified, in my opinion, in a border line case where the court, though not satisfied as to the conclusiveness of the prosecution evidence, is yet of the opinion that the case made out is one which on full consideration might possibly be thought sufficient to sustain a conviction.” 8. The prosecution case against the accused is that the accused and the deceased were lovers and were living together in Majengo in Kericho. On the material day, at around 7.30 p.m., the deceased was drinking at an illicit brew den when she was joined by the accused. They started arguing, with the accused heard alleging that the deceased was having an affair with another man. A scream was heard from the deceased, and she was later that night, at around 9.30 p.m., found dead. The cause of death, according to the post mortem report prepared by Dr. Oyoo, who conducted the post mortem on the deceased, and which was presented by Dr. Kibos Ezekiel, was due to strangulation leading to asphyxia as evidenced by fractured right hyoid bone. 9. From the prosecution evidence, the deceased was last seen alive in the company of the accused, at around 7.30 p.m. She was found dead at around 9.30 p.m., with the accused nowhere in sight. PW1’s testimony places the deceased and the accused together at the scene, and his testimony was that he heard them quarrelling, with the accused threatening to kill the deceased because she had a lover, only for her to be found dead a few hours later. On the basis of the evidence before the court, and in view of the exposition of what amounts to a prima facie case in Ramanlal Trambaklal Bhatt v. R and R vs Jagjiwan M. Patel and Others, I am satisfied that the prosecution has established a prima facie case against the accused to warrant placing him on his defence.

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