Republic v James Mwangi Gatimu & 1 other

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NANYUKI CRIMINAL CASE NO. 36 OF 2016 REPUBLIC ……………………......………..PROSECUTOR versus JAMES MWANGI GATIMU ……....…………1st ACCUSED DENNIS KANIARU WANGUI …......…...… 2nd ACCUSED RULING 1. The accused person JAMES MWANGI GATIMU and DENNIS KANIARU WANGUI are charged with the offence of murder Contrary to Section 203 as read with Section 204 of the Penal Code. They pleaded not guilty. 2. The prosecution called five witnesses and concluded submitting its evidence and closed its case. This calls upon this court to consider whether the accused have a case to answer as provided under Section 306 of the Criminal Procedure Code Cap 75. In the case REPUBLIC – V- JOSEPH SHITANDI & ANOTHER [2014] eKLR the prosecution having closed its case the Judge in considering whether the accused had a case to answer stated: “A case to answer is a case where if the accused keeps quiet, the evidence of the prosecution should be such that a conviction will result.” At the close of the prosecution’s case, therefore, the court if it finds that the prosecution’s evidence could not lead to a conviction, then the accused should be acquitted. If however the court finds that the prosecution’s evidence suffices then the accused will be called to defend themselves. 3. In this case I am satisfied that the evidence of the prosecution does suffice for the accused to be called upon to defend themselves Accordingly as per Section 306 (2) of Cap 75 the accused are informed that they have a right to address the court, either personally or by his advocate and to give evidence on their own behalf, or to make unsworn statement, and to call witnesses in their defence. The accused are now called upon to make their election on how they shall present their defence. MARY KASANGO JUDGE Coram Before Justice Mary Kasango

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