High Court 2437 of 2022

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU CRIMINAL CASE NO. 90 OF 2016 REPUBLIC................................................PROSECUTOR -VERSUSDENNIS WAFULA WEKESA.........................ACCUSED RULING 1. Prosecution in its case against DENNIS WAFULA WEKESA called eight (8) witnesses before closing its case. The accused is charged with the murder of PATRICK MWANGI WANDERI deceased. 2. The accused submitted that the prosecution had failed to prove a prima facie case to justify him being called to offer his defence. Accused relied on the case REPUBLIC VS. BERNARD OBUNGA OBUNGA (2015) eKLR where it was stated: - “What constitutes a prima facie case is clearly stated in RAMANLAL TRAMBAKLAL BHATT V. R [1957] E.A 332 at 334 and 335, where the court stated as follows: ‘Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one “which on full consideration might possibly be thought sufficient to sustain a conviction.” This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is “some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence”. A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence… 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” (emphasis mine). See also WIBIRO ALIAS MUSA V. R [1960] EA 184.’” 3. I have considered the prosecution’s evidence and I am satisfied that the evidence suffices for the accused to be called to offer his defence as provided in Section 306 of the Criminal Procedure Code Cap 75. 4. The accused is therefore informed that he has a right to address the court, either personally or by his advocate and to give evidence on his own behalf, or to make unsworn statement, and to call witnesses in his defence. The accused is called upon to make his election on how he shall defend himself. RULING DATED AND DELIVERED AT KIAMBU THIS 10TH DAY OF FEBRUARY, 2022. MARY KASANGO JUDGE Coram: Court Assistant : Mourice Accused : DENNIS WAFULA WEKESA : - Presebt For accused : - Mr. Njehu

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