'1. The accused persons herein, Mutende Mwero Nyanje 1st accused person, Ndurya Mwero Nyanje alias Mawazo 2nd accused person, Ndurya Mwero Nyanje 3rd accused person, Gereza Mwero Nyanje 4th accused person through an information dated 12th August 2024, are charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap. 63) Laws of Kenya that between 7th and 8th June 2024 at an unknown time at Masinga, in Lunga Lunga Sub-County within Kwale County, killed Ndurya Mwero Nyanje.
2. The prosecution called eight (8) witnesses to support the charge. They are: PW 1, Agnes Mose Mrisa, 2nd wife of the deceased; PW 2, Bati Kamanza Kiwaya who said he witnessed the offence; PW 3, Agnes Mumazi Mwambeyu, 1st wife of the deceased person; PW 4 Mtende Mwero, an elder brother of the deceased; PW 5, Nyanje Mwero, is also an elder brother of the deceased; PW 6, Mauti Nyundo Kassim is a son-in-law, married in the home of the deceased and the accused person.PW 7, Dr. Dickson Ndegwa Chibaruwa is medical doctor at Msambweni County Referral hospital. He conducted post-mortem on the body of the deceased on 8th June 2024. He formed the opinion that the cause of death was due to strangulation; and PW 8, PC John Maitha Karisa of Lunga Lunga DCI station was the investigating officer in the case.
3. The prosecution’s case against the accused persons is that they killed the deceased and threw his body in a shallow dam.
4. PW 1, Agnes Mose Mrisa, the 2nd wife of the deceased testified that the 4th accused person Gereza Mwero Nyanje picked the deceased from their home on the morning of 7th June 2024 ostensibly to go and smoke. The deceased never returned home. PW 1 only came to see his body when it was retrieved from the shallow dam the following day. PW 3, Agnes Mumazi Mwambeyu, the 1st wife of the deceased said the 2nd accused person approached her and proposed that she marries him. She told her that if she declined his advances he would do something harmful to her husband. PW 2 Bati Kamanza Kiwaya testified that he witnessed the beating of the deceased by the 1st, 2nd and 3rd accused persons on 7th June 2024 at the shallow dam where the body was retrieved the following day.
5. Learned counsels for the prosecution and the defence opted not to make any submissions at the close of the case for the prosecution.
6. At this stage, the issue for this court to determine is whether the prosecution has established a prima facie case against any of the accused persons to warrant him to be called upon to offer a defence.
7. Section 306(1) of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC), provides that when the evidence of the witnesses for the prosecution has been concluded and the court is of the opinion that there is no evidence that the accused or any one of several accused committed the offence should, after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit, record a finding of not guilty.
8. Section 306(2) of the CPC provides that when the evidence of the witnesses for the prosecution has been concluded and the court is of the opinion that there is evidence that the accused person or any one or more of several accused persons committed the offence, the court should proceed to put the accused on their defence and thereby the accused is supposed to present evidence in defense.
9. What constitutes a prima facie case to require an accused person to be called upon to offer a defence has been explained in the case of Ramanlal Trambaklal Bhatt v R [1957] E.A 332 at 335, 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 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.”
10. From the above exposition, it is imperative that for the court to find at this stage that a prima facie case has been made out and that the accused person has a case to answer, there must be evidence sufficient to warrant a conviction, if no explanation is offered in defence.
11. This court is, however alive to the fact that at this stage, it should not make definitive findings on the evidence tendered thus far, even if it were to find that the accused person has a case to answer. The court is therefore not required to give a reasoned ruling at this point, as was held in the case of Festo Wandera Mukando v Republic [1980] KLR 103, that:
“...we 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, an extreme case, may require an appellate court to set aside an otherwise sound judgment. Where a submission of “no case” to answer 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.”
12. I have considered the evidence of the eight (8) prosecution witnesses. I am satisfied that a prima facie case has been established against the accused persons to warrant then to be placed on their defence.
13. Accordingly, all the accused persons are hereby placed on their defence under section 306(2) of the CPC. Their rights under Article 50 (2) (i) (k) and (l) of the Constitution as read with Section 306(2) of the Criminal Procedure Code (Cap. 75) Laws of Kenya shall be explained to him.
14. Orders accordingly.
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 30th day of October 2025.
HON. ANDAYI W. F.
JUDGE
In the presence of: -
Accused persons in Shimo La Tewa prison appearing virtually.
Kabiaro for the 1st accused person.
Wanjiku for the 2nd accused person.
Kabiaro h/b for Mwakio for the 3rd accused person.
Kabiaro h/b for Nyariki for the 4th accused person.
Vallerie (Ms) for the State
Ummu - Court Assistant
'
2. The prosecution called eight (8) witnesses to support the charge. They are: PW 1, Agnes Mose Mrisa, 2nd wife of the deceased; PW 2, Bati Kamanza Kiwaya who said he witnessed the offence; PW 3, Agnes Mumazi Mwambeyu, 1st wife of the deceased person; PW 4 Mtende Mwero, an elder brother of the deceased; PW 5, Nyanje Mwero, is also an elder brother of the deceased; PW 6, Mauti Nyundo Kassim is a son-in-law, married in the home of the deceased and the accused person.PW 7, Dr. Dickson Ndegwa Chibaruwa is medical doctor at Msambweni County Referral hospital. He conducted post-mortem on the body of the deceased on 8th June 2024. He formed the opinion that the cause of death was due to strangulation; and PW 8, PC John Maitha Karisa of Lunga Lunga DCI station was the investigating officer in the case.
3. The prosecution’s case against the accused persons is that they killed the deceased and threw his body in a shallow dam.
4. PW 1, Agnes Mose Mrisa, the 2nd wife of the deceased testified that the 4th accused person Gereza Mwero Nyanje picked the deceased from their home on the morning of 7th June 2024 ostensibly to go and smoke. The deceased never returned home. PW 1 only came to see his body when it was retrieved from the shallow dam the following day. PW 3, Agnes Mumazi Mwambeyu, the 1st wife of the deceased said the 2nd accused person approached her and proposed that she marries him. She told her that if she declined his advances he would do something harmful to her husband. PW 2 Bati Kamanza Kiwaya testified that he witnessed the beating of the deceased by the 1st, 2nd and 3rd accused persons on 7th June 2024 at the shallow dam where the body was retrieved the following day.
5. Learned counsels for the prosecution and the defence opted not to make any submissions at the close of the case for the prosecution.
6. At this stage, the issue for this court to determine is whether the prosecution has established a prima facie case against any of the accused persons to warrant him to be called upon to offer a defence.
7. Section 306(1) of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC), provides that when the evidence of the witnesses for the prosecution has been concluded and the court is of the opinion that there is no evidence that the accused or any one of several accused committed the offence should, after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit, record a finding of not guilty.
8. Section 306(2) of the CPC provides that when the evidence of the witnesses for the prosecution has been concluded and the court is of the opinion that there is evidence that the accused person or any one or more of several accused persons committed the offence, the court should proceed to put the accused on their defence and thereby the accused is supposed to present evidence in defense.
9. What constitutes a prima facie case to require an accused person to be called upon to offer a defence has been explained in the case of Ramanlal Trambaklal Bhatt v R [1957] E.A 332 at 335, 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 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.”
10. From the above exposition, it is imperative that for the court to find at this stage that a prima facie case has been made out and that the accused person has a case to answer, there must be evidence sufficient to warrant a conviction, if no explanation is offered in defence.
11. This court is, however alive to the fact that at this stage, it should not make definitive findings on the evidence tendered thus far, even if it were to find that the accused person has a case to answer. The court is therefore not required to give a reasoned ruling at this point, as was held in the case of Festo Wandera Mukando v Republic [1980] KLR 103, that:
“...we 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, an extreme case, may require an appellate court to set aside an otherwise sound judgment. Where a submission of “no case” to answer 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.”
12. I have considered the evidence of the eight (8) prosecution witnesses. I am satisfied that a prima facie case has been established against the accused persons to warrant then to be placed on their defence.
13. Accordingly, all the accused persons are hereby placed on their defence under section 306(2) of the CPC. Their rights under Article 50 (2) (i) (k) and (l) of the Constitution as read with Section 306(2) of the Criminal Procedure Code (Cap. 75) Laws of Kenya shall be explained to him.
14. Orders accordingly.
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 30th day of October 2025.
HON. ANDAYI W. F.
JUDGE
In the presence of: -
Accused persons in Shimo La Tewa prison appearing virtually.
Kabiaro for the 1st accused person.
Wanjiku for the 2nd accused person.
Kabiaro h/b for Mwakio for the 3rd accused person.
Kabiaro h/b for Nyariki for the 4th accused person.
Vallerie (Ms) for the State
Ummu - Court Assistant
'