1. The two accused persons are jointly charged with the offence of murder contrary to section 203 as read with section 204 of the penal code. The particulars are that on 19th day of December, 2024 at Kandisi area within Ongata Rongai, in Kajiado North Subcounty within Kajiado County, with others not before the court, murdered Michael Ngugi Waiharo.
2. The accused denied the charges and trial commenced before me on 16th July 2025 wherein the prosecution called 11 witnesses in support of the charge.
3. At this stage of the proceedings, the prosecution is under a duty to establish a prima facie case against the accused person so as to warrant them to be called upon to make a defence. A prima facie case is one in which a reasonable tribunal directing its mind to the law and evidence placed before can convict an accused in the absence of evidence to the contrary by the defence. In other words, the evidence tendered by the prosecution at this stage of the proceedings should be sufficient to convict the accused person if he elects to remain silent in defence. See BHATT VS. R [1957] EA 334.
4. Section 306 of the Criminal Procedure Code requires the Court to evaluate the evidence presented to establish whether a prima facie case has been established to require the accused to offer an explanation.
5. 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. 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.”
6. At this stage, the Court is not concerned with the test of beyond reasonable doubt, but whether there exists some prima facie evidence capable of calling the accused to state his defence
7. The Criminal Procedure Code under Section 306 provides as follows:
“(1) 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 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 recording a finding of not guilty.
(2) 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 on his own behalf or make unsworn statement and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether is intended to call any witness as to fact other than the accused person himself; and upon being informed thereof, the judge shall record the fact.”
8. From the above, it is clear that what the law requires at this point of the proceedings is for the court to satisfy itself that there exists a prima facie case as against the accused to require his rebuttal. The court is not required to venture into considerations of the merits of the case and /or the credibility of prosecution witnesses. And so, based on the evidence submitted by the prosecution I hold that a prima facie case has been established sufficient enough to require the accused persons rebuttal. The accused persons thus have a case to answer and are now called upon to elect to conduct their defence in accordance with the provisions of section 306 (2) of the Criminal Procedure Code.
It is so ordered.
2. The accused denied the charges and trial commenced before me on 16th July 2025 wherein the prosecution called 11 witnesses in support of the charge.
3. At this stage of the proceedings, the prosecution is under a duty to establish a prima facie case against the accused person so as to warrant them to be called upon to make a defence. A prima facie case is one in which a reasonable tribunal directing its mind to the law and evidence placed before can convict an accused in the absence of evidence to the contrary by the defence. In other words, the evidence tendered by the prosecution at this stage of the proceedings should be sufficient to convict the accused person if he elects to remain silent in defence. See BHATT VS. R [1957] EA 334.
4. Section 306 of the Criminal Procedure Code requires the Court to evaluate the evidence presented to establish whether a prima facie case has been established to require the accused to offer an explanation.
5. 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. 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.”
6. At this stage, the Court is not concerned with the test of beyond reasonable doubt, but whether there exists some prima facie evidence capable of calling the accused to state his defence
7. The Criminal Procedure Code under Section 306 provides as follows:
“(1) 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 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 recording a finding of not guilty.
(2) 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 on his own behalf or make unsworn statement and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether is intended to call any witness as to fact other than the accused person himself; and upon being informed thereof, the judge shall record the fact.”
8. From the above, it is clear that what the law requires at this point of the proceedings is for the court to satisfy itself that there exists a prima facie case as against the accused to require his rebuttal. The court is not required to venture into considerations of the merits of the case and /or the credibility of prosecution witnesses. And so, based on the evidence submitted by the prosecution I hold that a prima facie case has been established sufficient enough to require the accused persons rebuttal. The accused persons thus have a case to answer and are now called upon to elect to conduct their defence in accordance with the provisions of section 306 (2) of the Criminal Procedure Code.
It is so ordered.