[1] The accused person herein, Collins Onyango Kibai , was arraigned before the Court on the Information by the Director of Public Prosecution that he had committed that offence of murder, contrary to Section 203 as read with Section 204 of the Penal Code, Chapter 63 of the Laws of Kenya. It was alleged that on the 13 th day of June 2024 at around 1900 Hours, at Chabera area in Rachuonyo East Sub-County within Homa Bay County, he murdered Brian Matekwa Avelia alias Waingo . The accused denied that Charge and the Prosecution called evidence from a total of 9 witnesses in proof of the allegations.
[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 require him to answer. The rationale for this was aptly expressed in Ramanlal Trambaklal Bhatt -Vs- 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 evidence upon which the Court could convict if no explanation is offered by the accused person. There is credible evidence that the deceased died on the 13 th June 2024. The eye witnesses stated that he was stabbed by the accused after an altercation over a bill payable to the deceased’s wife. The accused was chased and arrested by members of the public within the vicinity of the incident. He was escorted to Othoro Police Station for investigations.
[4] The prosecution further demonstrated that Postmortem was later conducted on the body of the deceased by Dr. Bernadette of St. Joseph’s Nyabondo Hospital. The doctor formed the opinion that the cause of death was excessive bleeding into the thoracic cavity secondary to a deep penetrating chest injury. There is therefore no dispute as to the death of the deceased or the cause of his death.
[5] In the circumstances, there is prima facie proof that the injuries that led to the death of the deceased were inflicted by the accused. He is accordingly hereby placed on his 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 AT HOMA BAY THIS 27 TH DAY OF MAY, 2025
[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 require him to answer. The rationale for this was aptly expressed in Ramanlal Trambaklal Bhatt -Vs- 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 evidence upon which the Court could convict if no explanation is offered by the accused person. There is credible evidence that the deceased died on the 13 th June 2024. The eye witnesses stated that he was stabbed by the accused after an altercation over a bill payable to the deceased’s wife. The accused was chased and arrested by members of the public within the vicinity of the incident. He was escorted to Othoro Police Station for investigations.
[4] The prosecution further demonstrated that Postmortem was later conducted on the body of the deceased by Dr. Bernadette of St. Joseph’s Nyabondo Hospital. The doctor formed the opinion that the cause of death was excessive bleeding into the thoracic cavity secondary to a deep penetrating chest injury. There is therefore no dispute as to the death of the deceased or the cause of his death.
[5] In the circumstances, there is prima facie proof that the injuries that led to the death of the deceased were inflicted by the accused. He is accordingly hereby placed on his 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 AT HOMA BAY THIS 27 TH DAY OF MAY, 2025