Republc v Titus Nderitu Gichohi

received was not positive hence he reported the matter to the Pesi Assistant Chief as well as police at the Pesi Police Post. In the meantime, the deceased’s family reported to the fact of the deceased missing to Nyahururu Police Station but were referred to Nyandarua North. 3. The home of the deceased was visited by the investigators and at the compound there were trails of wheels of a motorvehicle. The door to the house was not locked. Inside the house were stains of blood right from the sitting room to the bathroom. Notably her motor-vehicle Registration Number KBG 412G Toyota Sienta was missing. 4. Further investigations conducted established that the deceased’s cellphone was switched off around Muruguro area. Investigators from DCI-Nyandarua North led by PW12 No.84346 Corporal Jackson Mbithi Maingi moved to the locations, collected exhibits from the house of the deceased after the scene was documented and photographed by PW9 Corporal Edward Esanya. 5. Acting on further investigations received, they moved to Gachucho area where the deceased motor-vehicle was HCCR.NO. E023 OF 2022 RULING Page 2

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spotted. They found a motor-vehicle parked outside a newly built house. Entry to the house was gained through the back door. At the fireplace were remains suspected to be of a human completely burned. What was recovered was some debri. The remains of the burnt body were later taken to mortuary. 6. The house was stated to belong to the Accused, the deceased’s ex-manfriend. He was found and arrested in Nairobi. He had injuries on the wrist, a healing scar on the palm and finger hence issued with a P3 and escorted to hospital for treatment. 7. Section 306(2) of the Criminal Procedure Code provides thus: When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each such accused person of his right to address the court, either personally or by his advocate (if HCCR.NO. E023 OF 2022 RULING Page 3

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any), to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether it is intended to call any witnesses as to fact other than the accused person himself; and upon being informed thereof, the judge shall record the fact. 8. At the close of the prosecution’s case, the prosecution was required to establish credible evidence to support the information presented. The evidence adduced must be sufficient to establish guilt of the accused even if he opted to remain silent. It is summed up as a prima facie case, which was defined in the case of Ramanlal Tramkaklal Bhatt v Republic [1957] EA 332 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 HCCR.NO. E023 OF 2022 RULING Page 4

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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.” 9. The fact of death was confirmed by evidence of the Doctor who conducted the postmortem. The remains of body were HCCR.NO. E023 OF 2022 RULING Page 5

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identified by Daniel Githinji Njoroge (PW6) her siblings and Lilian Wambui Wareru. PW8 Dr. Felix Masongo Nyasani who did the autopsy could not determine the cause of the death due to the charmed condition of the remains. Some of the samples whereby a large portion of the heart and portion of right pectoral muscle were submitted for DNA analysis/identification. 10. It is urged that there was no evidence of the house where the debri were found or land belonging to the Accused and no witness was called to tender evidence of having seen the Accused driving the Motor-Vehicle to the homestead where the body was found. That the Accused DNA was not recovered at the homestead of the deceased. That the case is founded on suspicion such that the several elements of mensrea and actus reus were missing. 11. There was no direct evidence as to who caused the death as envisaged by Section 203 of the penal code that provides thus: HCCR.NO. E023 OF 2022 RULING Page 6

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“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder”. 12. However, a case can be established based on circumstantial evidence. If evidence adduced forms a chain of evidence that irresistibly point to the accused and no other person as the one who committed the offence then he will be culpable. 13. The prosecution adduced evidence of the Accused having cohabited with the deceased but prior to the act having became estranged. It was further established that the deceased purchased a car registration number KBU 412G Toyota from the accused and she became the registered owner. 14. On the morning of 23/08/2022 there were tyre marks, and trails of blood. In addition, ultimately the vehicle was traced to the homestead where it was recovered with a sweater identified as belonging to the deceased inside. PW7 Jane Wairimu an Assistant Chief of Pesi location knew the Accused for 10-15 years and knew his homestead where the HCCR.NO. E023 OF 2022 RULING Page 7

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body was found. Also found were some other items like the power saw, clamp, toxic liquid, petroleum liquid etc. To her knowledge the Accused and deceased were in a relationship, they cohabited and the Accused moved out in 2021. 15. From evidence adduced I find the prosecution having established a prima facie case requiring the Accused to be placed on his defence, which I hereby do pursuant to the provisions of Section 306 (2) of the Penal Code. 16. It is so ordered. Dated signed and delivered virtually at Nyahururu this 7th day of July, 2026. L.N. MUTENDE JUDGE HCCR.NO. E023 OF 2022 RULING Page 8

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