[1] The accused persons were arraigned before the Court on 5 th February 2024 on allegations that they had murdered Peter Owino Okinda . The offence was alleged to have occurred on the night of 16 th November 2023 at Oyier Village in Kamenya Sub-Location within Ndhiwa Sub-County of Homa Bay County. They denied the charge against them and the Prosecution called 7 witnesses.
[2] Pursuant to Section 306(1) of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya , it is imperative that, at the close of the Prosecution Case, a determination be made as to whether a prima facie case has been made out against the accused person to warrant his being placed on his defence. The rationale for this was aptly expressed in Ramanlal Trambaklal Bhatt v Republic [1957] EA 332 thus:
“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 true, as Wilson, J., said, that the court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively: that final determination can only properly be made when the case for the defence has been heard. 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.”
[3] Accordingly, I have given careful consideration to the evidence on record with a view of ascertaining whether it is the sort of evidence upon which the Court would be prepared to convict if no explanation is offered by the accused person. The Prosecution adduced evidence through PW1 (one of the sons of the deceased) and the deceased’s widow (PW2) to the effect that a group of people invaded their home on the night of 16 th November 2023 and declared that they had gone there to kill the deceased. They started by throwing stones on the roof and breaking window panes with stones.
[4] When the deceased emerged from the house to find out what the problem was, he encountered an enraged crown armed with stones, rungus, pangas and spears. The crowd jointly beat up the deceased to death and PW1 and PW2 identified the three accused persons to be among the assailants who beat up the deceased on the night.
[5] The prosecution also adduced evidence, through PW3 that postmortem was conducted on the body of the deceased and the cause of death of the deceased was ascertained to be severe head injury secondary to assault by blunt objects.
[6] In the circumstances, there is prima facie proof that the injuries that led to the death of the deceased were inflicted by the accused persons, among others. They are accordingly hereby placed on their defence to answer the Charge of Murder pursuant to Section 306(2) of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 12 TH DAY OF JUNE, 2026
[2] Pursuant to Section 306(1) of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya , it is imperative that, at the close of the Prosecution Case, a determination be made as to whether a prima facie case has been made out against the accused person to warrant his being placed on his defence. The rationale for this was aptly expressed in Ramanlal Trambaklal Bhatt v Republic [1957] EA 332 thus:
“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 true, as Wilson, J., said, that the court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively: that final determination can only properly be made when the case for the defence has been heard. 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.”
[3] Accordingly, I have given careful consideration to the evidence on record with a view of ascertaining whether it is the sort of evidence upon which the Court would be prepared to convict if no explanation is offered by the accused person. The Prosecution adduced evidence through PW1 (one of the sons of the deceased) and the deceased’s widow (PW2) to the effect that a group of people invaded their home on the night of 16 th November 2023 and declared that they had gone there to kill the deceased. They started by throwing stones on the roof and breaking window panes with stones.
[4] When the deceased emerged from the house to find out what the problem was, he encountered an enraged crown armed with stones, rungus, pangas and spears. The crowd jointly beat up the deceased to death and PW1 and PW2 identified the three accused persons to be among the assailants who beat up the deceased on the night.
[5] The prosecution also adduced evidence, through PW3 that postmortem was conducted on the body of the deceased and the cause of death of the deceased was ascertained to be severe head injury secondary to assault by blunt objects.
[6] In the circumstances, there is prima facie proof that the injuries that led to the death of the deceased were inflicted by the accused persons, among others. They are accordingly hereby placed on their defence to answer the Charge of Murder pursuant to Section 306(2) of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 12 TH DAY OF JUNE, 2026