REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MALINDI CRIMINAL CASE NO. 2 OF 2017 REPUBLIC..........................................................................................PROSECUTOR VERSUS KATANA CHOME NGALA .............................................................. 1 ST ACCUSED SERA CHOME NGALA .................................................................... 2 ND ACCUSED NENO KARISA KATANA aliasNTHENGE ................................... 3RD ACCUSED Coram: Hon. Justice R. Nyakundi Mr. Alenga for the state Ms. Ruttoh advocate for the accused persons RULING The accused persons were all charged with the offence of murder contrary to Section 203 and 204 of the Penal Code. it is alleged in the information sheet between the night of 28 th/29th December 2016 in Majenjeni village of Mambrui they jointly with others not before Court murdered Karisa Chome Ngala. Each accused denied the offence as such a plea of not guilty was entered to warrant a full trial. Summary of the evidence The background to the incident comes from testimony of (PW1) Agnes Kahaso and (PW2) Karisa Bahati that on the fateful night accused persons went to their home and walked the deceased away. In the first observation (PW1) and (PW2) testified that accused persons initiated to them that the deceased was required by the police at Marereni. It is also alleged by (PW1) and (PW2) that the following day each one of them received information of an assault against the deceased. The resultant postmortem examination produced as exhibit 1 showed that the deceased suffered severe head injury inflicted by sharp cutting object. When the investigations commenced (PW3) – Kenga and (PW4) – Mwambegu also recorded statements attending to the death and the severe injuries seen on the deceased. Similarly, (PW5) Cpl Narman visited the scene and from the evidence of (PW1) and (PW2) there was reasonable belief that accused persons committed the murder. The decision Considering all aspects of this case at the close of the prosecution case, I am required to make a finding under Section 306 of the Criminal Procedure Code. The question to be answered is whether from the evidence an offence has been proved capable of sustaining a conviction. It has been held in the case of Uganda v Bosco Okello {1992 – 93} HCB 68 that for the offence of murder the prosecution is under a duty to prove the following elements: (a). The death of the deceased. (b). That the death was unlawfully caused. (c). That in causing death the accused persons did so with malice aforethought. (d). That its proven accused persons participated in the killing of the deceased.
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I have reviewed the evidence of the five witnesses summoned by the state and the velacity of each of the statement on oath. It is therefore right to say and find that from the evidence accused persons have a case to answer. I therefore hold that Section 306 (2) of the Criminal Procedure Code comes into play by calling accused persons to state their defence in rebuttal to the charge or as the case may be in this indictment. DATED, SIGNED AND DELIVERED AT MALINDI THIS 7TH DAY OF DECEMBER 2020 ........................... R. NYAKUNDI JUDGE In the presence of: 1. Mr. Alenga for the state 2. Ms. Ruttoh for the accused persons
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