1. The 3 accused persons are charged with the offense of murder contrary to Sec 203 as read with Sec 204 of the Penal Code , particulars of which are that on the 8 th day of MARCH 2018 along Mombasa -Malindi Road in Kilifi County, jointly with others not before court, murdered ISAACK KASSIM JIRAW aka SOKOROW .
2. This long trial has been handled by 4 Judges. Initialy A3 NGIRA KARISA CHARO , CONFESSED and was to be a state witness but he changed his mind and was charged along the others.
3. The trial commenced and the prosecution called a total of 32 witnesses though I note two testified twice but were given different witness numbers owing to the changes in the judges and prosecutors.
4. Analysis and Determination
5. As per the evidence on record there was some evidence linking the 1 st accused to the deceased over some monetary deals and there is some connection between this 1 st accused and the other 2 co accused.
6. I have considered the evidence so far from the prosecution’s side. The issue before me at this stage is, whether the evidence so far adduced warrants calling upon the 3 accused persons to defend themselves. In other words, does the accused have a case to answer? In Republic v Abdi Ibrahim Owl [2013] eKLR a prima facie case was defined as follows: -
“Prima facie” is a Latin word defined by Black’s Law Dictionary , 8th Edition as “Sufficient to establish a fact or raise a presumption unless disproved or rebutted”. “Prima facie case” is defined by the same dictionary as “The establishment of a legally required rebuttable 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.
7. It is noteworthy that a prima facie case does not necessarily mean a case which must succeed. In other words, despite finding that a prima facie case has been made out, the Court is not necessarily bound to convict the accused if the accused decides to maintain his silence. At the conclusion the Court will still evaluate the evidence as well as the submissions, if any and make a finding whether, based on the facts and the law, the prosecution has proved its case beyond reasonable doubt, which is not the same standard applicable to the finding of existence of a prima facie case for the purpose of a case to answer.
8. Nevertheless, it is not lost to this court the danger in making definitive findings at this preliminary stage, especially where the Court finds that there is a case to answer. As was appreciated by Trevelyan and Chesoni, JJ in Festo Wandera Mukando v The Republic [1980] KLR 103 :
“…we once more draw attention to the inadvisability of giving reasons for holding that an accused has a case to answer. It can prove embarrassing to the Court and, in an extreme case, may require an appellate Court to set aside an otherwise sound judgement. Where a submission of “no case” is rejected, the Court should say no more than that it is. It is otherwise where the submission is upheld when reasons should be given; for then that is the end to the case or the count or counts concerned.”
9. Therefore, the question that this Court must contend with and answer at this stage, is whether based on the evidence before this Court, the Court after properly directing its mind to the law and the evidence may convict if the accused chose to give no evidence.
10. As I noted earlier on, the prosecution called evidence connecting the dots linking the 3 accused to the offence. Without delving deep into the matter and having appreciated the material placed before me I am satisfied that the prosecution has established a prima facie case to the end that each of the 3 the accused persons has a case to answer. Accordingly, they are all hereby put on their defense.
11. Consequently, the accused’s rights under Article 50 (2) (i) (k) and (l) of the Constitution as read with Sec 306 (2) of the Criminal Procedure Code shall be guaranteed and explained to each, in a language he comprehends and understands before his legal counsel.
DATED, SIGNED and DELIVERED at NAIROBI Virtually this…18 th …...day of…December ...………2025.
Wendy.Kagendo
JUDGE
IN THE PRESENCE OF;
THE 3 ACCUSED PERSONS and MR MAGOLO ADVOCATE FOR A1 AND A2 AND MS NABWANA FOR A3
FOR THE REPUBLIC: MR NGIRI AND MR SIRIMA
COURT ASSISTANT : MS BEBORA
2. This long trial has been handled by 4 Judges. Initialy A3 NGIRA KARISA CHARO , CONFESSED and was to be a state witness but he changed his mind and was charged along the others.
3. The trial commenced and the prosecution called a total of 32 witnesses though I note two testified twice but were given different witness numbers owing to the changes in the judges and prosecutors.
4. Analysis and Determination
5. As per the evidence on record there was some evidence linking the 1 st accused to the deceased over some monetary deals and there is some connection between this 1 st accused and the other 2 co accused.
6. I have considered the evidence so far from the prosecution’s side. The issue before me at this stage is, whether the evidence so far adduced warrants calling upon the 3 accused persons to defend themselves. In other words, does the accused have a case to answer? In Republic v Abdi Ibrahim Owl [2013] eKLR a prima facie case was defined as follows: -
“Prima facie” is a Latin word defined by Black’s Law Dictionary , 8th Edition as “Sufficient to establish a fact or raise a presumption unless disproved or rebutted”. “Prima facie case” is defined by the same dictionary as “The establishment of a legally required rebuttable 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.
7. It is noteworthy that a prima facie case does not necessarily mean a case which must succeed. In other words, despite finding that a prima facie case has been made out, the Court is not necessarily bound to convict the accused if the accused decides to maintain his silence. At the conclusion the Court will still evaluate the evidence as well as the submissions, if any and make a finding whether, based on the facts and the law, the prosecution has proved its case beyond reasonable doubt, which is not the same standard applicable to the finding of existence of a prima facie case for the purpose of a case to answer.
8. Nevertheless, it is not lost to this court the danger in making definitive findings at this preliminary stage, especially where the Court finds that there is a case to answer. As was appreciated by Trevelyan and Chesoni, JJ in Festo Wandera Mukando v The Republic [1980] KLR 103 :
“…we once more draw attention to the inadvisability of giving reasons for holding that an accused has a case to answer. It can prove embarrassing to the Court and, in an extreme case, may require an appellate Court to set aside an otherwise sound judgement. Where a submission of “no case” is rejected, the Court should say no more than that it is. It is otherwise where the submission is upheld when reasons should be given; for then that is the end to the case or the count or counts concerned.”
9. Therefore, the question that this Court must contend with and answer at this stage, is whether based on the evidence before this Court, the Court after properly directing its mind to the law and the evidence may convict if the accused chose to give no evidence.
10. As I noted earlier on, the prosecution called evidence connecting the dots linking the 3 accused to the offence. Without delving deep into the matter and having appreciated the material placed before me I am satisfied that the prosecution has established a prima facie case to the end that each of the 3 the accused persons has a case to answer. Accordingly, they are all hereby put on their defense.
11. Consequently, the accused’s rights under Article 50 (2) (i) (k) and (l) of the Constitution as read with Sec 306 (2) of the Criminal Procedure Code shall be guaranteed and explained to each, in a language he comprehends and understands before his legal counsel.
DATED, SIGNED and DELIVERED at NAIROBI Virtually this…18 th …...day of…December ...………2025.
Wendy.Kagendo
JUDGE
IN THE PRESENCE OF;
THE 3 ACCUSED PERSONS and MR MAGOLO ADVOCATE FOR A1 AND A2 AND MS NABWANA FOR A3
FOR THE REPUBLIC: MR NGIRI AND MR SIRIMA
COURT ASSISTANT : MS BEBORA