High Court 2171 of 2017

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU CRIMINAL CASE NO. 12 OF 2016 REPUBLIC.............................................PROSECUTOR VERSUS EVANSON NDWIGA IRERI.............................................ACCUSED RULING ON CASE TO ANSWER • Evanson Ndwiga Ireri (“Accused Person”) faces a murder charge brought under section 203 as read together with section 204 of the Penal Code. • The details in the Information is that the Accused Person murdered Mitchel Njeri (the “Deceased”) on the night of 8th and 9th January, 2015 at Karunga Village in Ndumberi within Kiambu County. • The Prosecution called eight witnesses to prove its case. The case theory is quite simple. It is alleged that the Accused Person was married to Rose Nungari, who testified as PW1. They were having marital problems and Rose claims that the Accused Person would often get physically abusive. On the night in question, the Accused Person turned up drunk and an argument ensued. Afraid that she would be physically abused, Rose fled to a neighbour’s house. She left the Deceased in the house with the Accused Person. • That was the last Rose saw the Deceased alive. She testified that after exchanging a few calls with the Accused Person throughout the night and the following day, the Accused Person directed her to a bag in the house where she found the body of the Deceased. By that time, the Accused Person was on his way to his ancestral home in Embu. Mary Wanjiru, who testified as PW2, and Hannah Wangui, who testified as PW3, responded to the distressed calls by Rose when she found the Deceased’s body in a bag in her own house. Moses Muthee identified the body at the City Mortuary and so testified as PW4. • A Government Pathologist, Dr. Dorothy Njeru testified that the cause of death was head injury due to blunt force trauma with asphyxia due to ligature strangulation and suspected sexual assault. However, the Report from the Government Analyst, Elizabeth Waithira Oyiengo, did not reveal any presence of spermatozoa in the Deceased’s vaginal swab. Dr. Njeru testified as PW5 while Ms. Oyiengo testified as PW8. • PC John Katende was the arresting officer who testified to arresting the Accused Person in the Kavengera area in Embu County. He testified as PW6. Sgt. Osodo was the desk officer who took the report of the death and was the investigating officer in the case. He testified as PW7. • Neither the Defence nor the Prosecution elected to address me on no case to answer. • After analyzing the evidence presented, and after considering that at this point I am required to assess whether the Prosecution has placed sufficient evidence – without taking anything more than a provisional view of the credibility and probative value of the evidence presented – to warrant putting the Accused Person on his Defence. See Bhatt –vs- R [1957] EA 332. • At this stage in the proceedings, the test is whether, as a matter of law, the Prosecution has adduced reasonable evidence of

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