Republic v Mawia

presumption”. To digest this further, in simple terms, it means the establishment of a rebuttal presumption that an accused person is guilty of the offence he/she is charged with. 6. In Ramanlal Trambaklal Bhatt v. R [1957] E.A 332 at 334 and 335, 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 is 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.” (Underlining is mine). 7. The same Court in Wibiro alias Musa v. R [1960] E.Aat 186 revisited with approval the Ramanlal case above on the issue of prima facie case. The courts in East African including our own have cited these cases with relish and for a good reason; it is good law. 8. Turning to the case before me, I now wish to analyse the evidence tendered to determine if the standard in the above cases has been reached. 9. PW1- Shadrack Nthiani Kioko is the father to the deceased. He told the court that he was called by a person to go to the scene where his deceased son was lying. He found the deceased bleeding from mouth and nose. He was breathing but he was not able to talk and his eyes were closed. He did not see any injury other than the deceased’s head which was bleeding. He did not witness the incident and did not know what happened to the deceased. He confirmed the same in cross examination. 10. PW2- John Musau Wambua stated that the deceased had a small fight with the deceased after he poured alcohol on his book of accounts. They used fists to fight. The deceased left and he was left in the club with the accused. He did not see what happened outside. When he went outside, he saw the deceased had fallen on the middle of road. He saw a lady by the name Irene hit the deceased with a stone on his private parts. He did not see the accused hit the deceased. The next day when he woke up, he got the news that Felix had died. What happened to the deceased at the road is unknown. 11. PW3- Julius Kimeu Nzioki told the court that Katuu slapped the deceased. The accused, Katuu and Kavisi laid on the deceased. He saw Kavisi pushing the deceased while the others were beating him. He only saw the deceased being beaten inside the bar and not outside. At the start it was Kavisi who was beating the deceased. He did not see the accused nearby. The following day he heard that the deceased went to hospital and passed away. He did not see what happened after deceased left club. He stated that he did not know what happened to the deceased. 12. PW4- Constable Stephen Kayeikya Makanja told the court that he was one of the investigating officers. That he was informed about the incident by the deputy OCS. He then went to scene and found the body next to club Rumours. He took photographs. He also stated that the interviewed the accused who stated that he was not aware of any incident. He was also present during the post mortem. He stated that according to the doctor, the deceased was subjected to a blunt object on the head. Katuu https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14373/eng@2025-07-22 2

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and Kavisi were not arrested and they are at large. Maurine was arrested but released due to conflict of interest. 13. PW5- CPL Churchill Luvisia stated that he heard the deceased was assaulted by three people namely by accused, Katuu and Maurine. He did not witness the alleged assault by the accused. He did not find anything that could have been used in the assault. There are very steep stairs outside the club. He did not think any person falling from the same would be injured. They did not find out if the deceased was drunk. He did not investigate the probability of the deceased being hit by a vehicle. The body of the deceased was taken by his father. He arrested accused at work doing his normal duties but the rest are at large. 14. PW6- Doctor Waithera the pathologist testified and in producing the post-mortem form indicated that the cause of death was head injury due to a blunt force trauma. 15. Murder is defined under section 203 of the Penal Code thus: “ Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” 16. From this definition, the state has the onus of proving that death has occurred: that death was caused by an unlawful act or omission of the accused person before the court and that the accused person caused that death with malice aforethought. 17. Malice aforethought is established, under Section 206 of the Penal Code, when there is evidence of: 18. a. Intention to cause death of or grievous harm to any person whether that person is the one who actually died on not. b. Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not. c. Intent to commit a felony. d. Intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony. Under Section 306 (1) of the Criminal Procedure Code provides: “ When the evidence of the witnesses for the Prosecution has been concluded, the court, if it considers that there is no evidence that the accused or any one of the several or any one of the several accused committed the offence shall, 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." 19. There is no further evidence expected from the prosecution given that the case has been closed. When the evidence of the six witnesses is put to the test, the standard laid down by the law as enunciated in the above case of Ramanlal Trambaklal Bhatt v. R, can this evidence pass the test? Can this court, properly directing its mind to the law and that evidence convict the accused if no explanation is offered by the defence given that the onus of proving a criminal case lies with the prosecution? I am of the view that this evidence cannot pass that test. 20. The reasons are that even though the death of the deceased was proved by PW 1 and PW2 who saw the deceased's body while PW6 conducted post-mortem on the deceased's body and confirmed that the cause of death was head injury due to a blunt force trauma, there is no proof that the death of the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14373/eng@2025-07-22 3

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deceased was caused by unlawful action or omission of the accused and that the accused acted with the intention of causing that death. Life is sacrosanct and any person who unlawfully causes the death of another must face the legal consequences. But before those consequences can befall the offender, there must be proof beyond reasonable doubt that he/she is the person who caused the death. 21. This court has no alternative but to make a finding that the prosecution has not established a prima facie case and therefore this court has no basis to call upon the accused person to defend himself. 22. I therefore acquit the accused person, Peter Muia Mawia, of the charge of murder. He is forthwith set at liberty unless for any other lawful cause he is held in custody. 23. The surety is discharged. 24. I make orders accordingly. File closed. RULING WRITTEN, SIGNED & DATED AT MACHAKOS THIS 22ND JULY 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 22ND JULY 2025 In the presence of : Mr. Muumbi for Accused Ms Agatha for State Milly -Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14373/eng@2025-07-22 4

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