REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU CRIMINAL CASE NO. 19 OF 2016 REPUBLIC......................................................................................................PROSECUTOR VERSUS LIBAN KUNE BORU............................................................................................ACCUSED RULING 1. The accused herein faces the charge of murder contrary to section 203 as read with section 204 of the Penal code. The particulars of the offence are that on 23.08.2016 at Mwea Game Reserve in Makima location of Mbeere South sub-location within Embu County murdered Joseph Nyaga Maragua. He was arraigned in court on 7.09.2016 and upon the charges being read to him, he pleaded not guilty and a plea of not guilty entered accordingly. 2. The matter proceeded to hearing and the prosecution called a total of ten (10) witnesses in order to discharge its burden of proof after which the prosecution closed its case. 3. This court has a legal duty, upon close of the prosecution’s case, to make a ruling or a decision on whether an accused person has a case to answer or not. When the evidence of the witnesses for the prosecution has been concluded and the court is of the opinion that there is no evidence that the accused or any one of several accused committed the offence should, after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit, record a finding of not guilty (See Section 306(1) of the Criminal Procedure Code). On the other hand, when the evidence of the witnesses for the prosecution has been concluded and the court is of the opinion that there is evidence that the accused person or any one or more of several accused persons committed the offence, the court should proceed to put the accused to his/their defence and whereby the accused is supposed to present evidence in defence (See Section 306(2) of the Criminal Procedure Code). As such, at this stage, this court’s role is to consider the evidence on record and make a determination as to whether the same presents a prima facie case that would warrant this court to call upon the accused to give their defences. 4. Under Section 211 of the Criminal Procedure Code, a prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person. (See also Ramanlal Trambaklal Bhatt –vs- R [1957] E.A 332 at 334 and 335). However, it is trite that, where the court is not acquitting the accused person at the close of prosecutions’ case, there is no need for a reasoned ruling for a case to answer. Reasons should only be given where the submissions of a no case to answer by the accused are upheld and the accused is to be acquitted. (See Festo Wandera Mukando –vs Republic [1980] KLR 103). 5. I have considered the evidence tendered by the prosecution in this matter as required of this court and from the entirety of the said evidence, it is my view that the prosecution has made up a prima facie case against the accused person and which requires the accused to be placed on his defence so as to rebut the same. The accused person therefore has a case to answer and is hereby put on his defence. 6. It is so ordered. DELIVERED, DATED AND SIGNED AT EMBU THIS 13TH DAY OF OCTOBER, 2021. L. NJUGUNA JUDGE ............................for the Accused ............................for the Republic
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