REPUBLIC OF KENYA
IN THE HIGH COURT AT VIHIGA
CRIMINAL CASE NO. E004 OF 2026
REPUBLIC ………………………………………………………………….PROSECUTION
VERSUS
JACKSON SHIKANGA LUVAKA…..……………………………….......1ST ACCUSED
SAMUEL MULAMA SHIKANGA………………………………………….2ND ACCUSED
Coram:
Before Justice R. Nyakundi
M/s Leina for the state
Mr. Wekesa Advocate for the Accused
RULING
1. The accused persons were charged with the offence of murder contrary to
section 203 as read with section 204 of the Penal Code. The particulars of the
offence are that the accused persons on the 8th day of January 2026 at
unknown time at Kipchekwen Village, Banja location in Hamisi Sub-County
within Vihiga County jointly murdered Derrick Andambi Luvaka.
2. The lead prosecution counsel in these proceedings was Mrs. Leina for the
state whereas the Accused persons were under the representation of Learned
counsel Mr. Wekesa.
3. This case was based on the following brief facts that on 8th January 2026, the
deceased Derrick Andambi Luvaka went to the home of 1st Accused Jackson
Shikanga and found his wife Pamela winnowing maize. At the time, the 1st
Accused was not at home and the deceased borrowed maize from Pamela in
which she refused and alleged that the deceased had stolen maize while still
in the shamba and that this habit was rampant. The deceased insisted but
Pamela called her son Samuel Mulama Shikanga, the second accused who
intervened and told the deceased to go away. The deceased insisted that he
wanted maize and that is when the 1st Accused was called and upon his
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CRIMINAL CASE NO E004 OF 2026
arrival, the quarrel escalated and the deceased was assaulted by the accused
persons who cut his hands using a jembe and slasher inflicting serious
injuries to him.
4. The prosecution marshalled 6 witnesses who gave evidence to establish the
ingredients of the offence of murder contrary to section 203 as read with
section 204 of the Penal code.
Summary for the Prosecution case.
5. PW1 Edith Khavere testified that she was a 57-year-old farmer and widow
who was informed on 8th January 2026 that her son, Derrick Andambi had
been attacked and assaulted. PW1 testified that she discovered her son lying
beside the road near the Banja MCA’s home where he identified his assailants
as Jackson, Jackson’s wife Pamela and their son Sammy, who had cut him
using a jembe and a slasher. She added that after reporting the incident to
Serem Police Station, the police transported the victim to Vihiga County
Teaching and Referral Hospital, where he was admitted with cuts on both
hands at the wrists, head and right eye. PW1 further testified that the
deceased passed on at the theatre on 10th January 2026 and she later
observed a pool of blood and suspected weapons at her house, while also
discovering that a radio and hoofer had been stolen from the residence. She
testified that she subsequently recorded a statement with the DCI and
witnessed a post-mortem on 24th January 2026, which determined the cause
of death was excessive bleeding due to external assault by a sharp object.
6. PW2 Jackline Shivuluka testified that on 8th January 2026, while at her
place of work, she received a call from a neighbour informing her that her
brother Derrick Andambi was being beaten and that smoke was emanating
from their house, indicating he might have been set ablaze. She instructed
her mother to investigate, who later confirmed that the deceased had been
admitted to Vihiga County Referral Hospital with both hands cut. She testified
that although the hospital required Social Health Authority (SHA) insurance
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CRIMINAL CASE NO E004 OF 2026
or cash for treatment which the deceased lacked, she spoke to him and
successfully urged him to accept the amputation of his hands as per the
doctor’s suggestion. It was her testimony that on 10th January 2026, she
received notification of his death and his body was preserved in the morgue
at the same facility. She further testified that before his demise, the deceased
informed his mother that he had been beaten by his step-brother Jackson,
his son Samwel and his wife Pamela.
7. PW3 Hesbon Imoli testified that he was a Luhya male adult and a resident
of the mentioned place employed by Aquamist Company in Nairobi. He
recalled that on the 24th day of January 2026 at approximately 1550pm, he
attended and witnessed a post-mortem conducted on the body of his late
brother, Derrick Andambi Luvaka, which was performed at the Vihiga County
Referral hospital morgue by a pathologist. He stated that he agreed with the
opinion of the pathologist regarding the cause of death of his late brother and
confirmed that he had no complain about it.
8. PW4 No. 124296 PC (W) Margaret Wachira testified that on the 8th day of
January 2026 at approximately 1505hrs, she and Sgt Omodia were informed
by the Deputy OCS through IP Kibet of a serious assault at Kabinjari. Serving
as the crime aid of the day, she joined Sgt Omodia and proceeded to the scene
in m/v GKB 272 T driven by Cpl Shoka. She testified that upon arrival, they
discovered Derrick Andambi (now deceased) in a supine position with serious
injuries, specifically deep cuts on both wrists, his right leg and his ring and
middle toes, which had reportedly occurred at around 1200hrs. it was her
testimony that the deceased stated to her that he had been cut with a jembe
by his brother, Jackson and his son Samwel after he questioned Samwel
regarding the theft of his maize. It was PW4’s testimony that the scene was
photographed and documented before the officers escorted the victim to the
hospital with his mother; however, he later passed away while hospitalized in
serious condition.
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CRIMINAL CASE NO E004 OF 2026
9. Next in line to give evidence for the prosecution was PW5 - Dr. Clinto Kigweyi
whose role was to carry out a post mortem examination on the body of the
deceased which he relied upon to give evidence before this Court duly dated
24th January 2026. According to PW5, his positive findings were as follows:
pale chest within the respiratory system, bleeding from the cardiovascular
system; in the spinal cord, contracted spine. PW5 formed the opinion that the
cause of death was hemorrhage shock following excessive bleeding after
assault with a sharp object. PW5 produced the port mortem report as PExh1.
10. PW6 No. 101057 PC (W) Christabel Omumalia testified that she was
attached to DCI Hamisi and performing crime investigation duties when she
was approached by Edith Khavere on 16th January 2026 regarding the
murder of her son, Derrick Andambi Luvaka. She testified that Edith had
previously reported the case at Serem police station under OB 13 on
11/01/2026. She stated that on 8th January 2026, Edith found the deceased
lying beside the road near the Banja MCA’s home, where he identified his
attackers as E 1, E 2, and Pamela (E 1's wife), who had assaulted him with a
jembe and a slasher. Derrick was transported by police vehicle to Vihiga
County Teaching and Referral hospital at Mbale, where he succumbed to his
injuries on 10/01/2026 while in the theatre for amputation of his hands,
head, and right eye. Edith suspected the incident occurred at her house due
to blood stains found there and noted a history of threats against the
deceased by E 1. The witness further testified that a post-mortem conducted
by Dr. Clinton on 24/01/2026 concluded the cause of death was
HAEMRRHAGE SHOCK FOLLOWING EXCESSIVE BLEEDING AFTER
ASSAULT WITH SHARP OBJECT. It was her testimony that E 1 and E 2 were
arrested on 27/01/2026 and although the witness visited and photographed
the scene, noting dried blood, she was unable to recover the murder weapons.
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CRIMINAL CASE NO E004 OF 2026
Prosecution Submissions Summary
11. The learned prosecution counsel M/s Leinah submitted that the accused
persons, Jackson Shikanga Luvaka and Samuel Mulama Shikanga, were
charged with the offence of murder contrary to section 203 as read with
section 204 of the Penal Code, following an incident on 8th January 2026
where they jointly murdered Derrick Andambi Luvaka. It was submitted that
the deceased was assaulted with a jembe and slasher after a dispute
regarding maize at the 1st Accused’s home, leading to serious injuries from
which he later succumbed. The learned prosecution counsel submitted that
the prosecution bore the burden of proof to establish the four essential
ingredients of murder: the death of a human being, that the death was
unlawfully caused, that there was malice aforethought, and that the accused
were the persons who killed the deceased.
12. The learned prosecution counsel submitted that the first ingredient was
proved by the testimony of Dr. Collins (PW5) and the post-mortem report,
which indicated the cause of death was hemorrhagic shock following
excessive bleeding after an assault with a sharp object. Regarding the second
and third ingredients, the learned prosecution counsel submitted that the
unlawful act and malice aforethought were demonstrated through the brutal
manner of the assault and the nature of the injuries inflicted, citing various
legal precedents such as Rex v Tubere S/o Ochen to show that intent can be
inferred from the weapon used and the part of the body injured.
13. Furthermore, the learned prosecution counsel submitted that the accused
persons acted with common intention under Section 21 of the Penal Code and
were placed at the scene of the crime through the evidence of a dying
declaration. It was submitted that the deceased, prior to his death, identified
the accused persons as his assailants to witnesses PW1 and PW2, and that
such declarations are admissible as the deceased is presumed to be telling
the truth in extremity. Consequently, the learned prosecution counsel
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CRIMINAL CASE NO E004 OF 2026
submitted that a prima facie case had been established and prayed that the
court find the accused persons have a case to answer and be put on their
defence pursuant to section 211 (1) of the Criminal Procedure Code.
Analysis and Determination
14. Having carefully considered the evidence tendered by the prosecution, the
witness testimonies, the exhibits produced and the submissions by the
learned prosecution counsel, the issue for determination at this stage is: -
Whether the prosecution has established a prima facie case against the
accused persons
15. At this stage, the Court is not required to make a definitive finding on the
guilt or innocence of the accused persons, but only to determine whether
there is evidence which, if left uncontroverted, could lead a reasonable
tribunal properly directing itself to convict. Then, the question for this court
to answer is whether under Section 306 of the Criminal Procedure Code, the
prosecution has discharged the burden of proof to meet the threshold of a
prima facie case for the accused person to be place on his defence. First and
foremost, Article 50(2)(a) states as follows: -
“Every accused person has a right to a fair trial which includes the
right to be presumed innocent until the contrary is proved.”
16. The prima facie obligation is vested with the prosecution. The success or
failure of it depends wholly on the evidence presented to prove existence or
non-existence of a fact or facts in issue as derived in Section 107(1), 108 and
109 of the Evidence Act. The term Prima facie is note defined under Section
306 of the Criminal Procedure Code but the concept appears both in criminal
and civil law. There is a close knitted correlation between the term prima facie
as commonly used and prima facie evidence. In so far as the definition is
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CRIMINAL CASE NO E004 OF 2026
concerned, as deducible in Section 306 of the CPC, the use of prima facie case
means the prosecution having presented enough evidence to proof the
elements of the offence in question. That the prosecution is entitled to prevail
in its case against the accused person. Speaking plainly, there are two senses
in which courts use the concept of prima facie. The first in the sense of the
prosecution producing sufficient evidence to render a reasonable conclusion
in favour of the allegation asserted in the indictment or the charge sheet. That
this what gives the trial court the power to exercise discretion to allow the
criminal case to proceed to the next stage which is the defence offering an
explanation or an answer to the charge.
17. In the second meaning of the concept, a prima facie case denotes a situation
where the prosecution has adduced sufficient evidence capable of persuading
a properly constituted court or tribunal that the accused person ought to be
called upon to answer the case against him. Such evidence is considered
adequate that, if the accused person chooses to remain silent or fails to rebut
it, the court may lawfully find him guilty and enter a conviction. Nonetheless,
the Constitution does not impose any obligation upon the accused person to
testify or tender evidence in response. Under Article 50(2)(f) of the
Constitution, an accused person has the right to remain silent and not testify
during the proceedings, while Article 50(2)(i) guarantees the right against self
incrimination. However, where the accused elects to exercise these
constitutional rights, he does so with the understanding that the unrebutted
prosecution evidence may result in an adverse finding against him.
18. It is well established in criminal law that once the prosecution establishes a
prima facie case, the evidential burden shifts to the accused person to
respond to the allegations raised. Even so, this does not in any way transfer
the legal burden of proof from the prosecution. The duty of proving the guilt
of the accused person beyond reasonable doubt remains with the prosecution
throughout the trial, consistent with Article 50(2)(a) of the Constitution,
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CRIMINAL CASE NO E004 OF 2026
which guarantees the presumption of innocence until proven guilty. I
presume that is what the drafters of the constitution had in mind when the
rights centred around Art 50(2)(a), (j) and (i) of the same constitution.
In Republic Vs 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.”
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CRIMINAL CASE NO E004 OF 2026
19. At the close of the prosecution case, the dicta in the case of Anthony Ndegwa
Ngari Vs Republic (2014) eKLR for the case of murder, the republic is
supposed to prove each of the following ingredients beyond reasonable doubt:
a. The fact of death
b. The fact that the deceased’s death was caused by an unlawful act or
omission.
c. That the accused committed the unlawful act which caused the death of
the deceased; and
d. That the accused had malice aforethought.
20. At a prima facie stage, the court asks the question whether a reasonable
tribunal or judge in a bench trial crediting the prosecution testimony and
drawing all rational inference in the prosecution’s favour could find every
element of the offence of murder proved beyond reasonable doubt. The court
has to test the sufficiency of the evidence by reviewing it and this is essentially
to address the issue whether the prosecution’s case is that which has met the
threshold of a prima facie case or is one which is so lacking that it should not
be allowed to proceed to the defence stage. The Constitution requires proof of
guilty beyond reasonable doubt. As a consequence, the constitutionally
required standard is founded under the right of presumption of innocence
until the contrary is proved. The due process clauses in Article 50 of the
constitution requires that each element of a crime be proved beyond
reasonable doubt. It is a requirement of the law for the court not to reserve a
ruling of a prima facie case at the close of the prosecution case. The judge
must make a judicial determination of the legal sufficiency of the
prosecution’s case before asking the accused to put in a defence.
21. In the case of R Vs Galbraith (1981) 1 WLR 1039, the court laid down the
test which must apply in answering the issues around prima facie case and
a submission of no case to answer thus: -
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CRIMINAL CASE NO E004 OF 2026
“The difficulty (for the court) arises where there is some evidence but it is
of a tenuous character, for example, because of inherent weakness or
vagueness, or because it is inconsistent with other evidence –
a. Where the judge comes to the conclusion that the prosecution’s
evidence taken at its height, is such that a jury properly directed
could not properly convict upon it, it is his duty, upon a submission
being made, to stop the case.
b. Where however the prosecution evidence is such that its strengths
or weaknesses depend on the view to be taken of a witness’
reliability, or other matters which are generally within the province
of the jury and where on one possible view of the facts there is
evidence upon which a jury could properly come to the conclusion
that the defendant is guilty, the then judges should allow the matter
to be tried by the jury but for our case, is for the case to proceed
further to the defence to offer evidence in rebuttal or elect to keep
quiet. (emphasis mine).”
22. How does the court make a finding on a prima facie case? It is to look at the
proofs of evidence attached to the six (6) witnesses and the information as
drafted by the prosecution in totality as against the accused person. The fact
and cause of death of the deceased, Derrick Andambi Luvaka, were
sufficiently established through the testimonies of PW1, PW2, PW4, PW5 and
PW6. PW5, the pathologist, confirmed through the post-mortem report that
the cause of death was hemorrhagic shock following excessive bleeding after
assault with a sharp object. The prosecution also adduced evidence that the
deceased sustained deep cuts on both wrists and other parts of the body.
Further, the evidence of PW1, PW2, PW4 and PW6 consistently showed that
before his death, the deceased identified the accused persons, namely
Jackson Shikanga Luvaka and Samuel Mulama Shikanga, as among the
persons who assaulted him using a jembe and slasher. The Court notes that
10
CRIMINAL CASE NO E004 OF 2026
the prosecution relied substantially on the deceased’s dying declaration,
which at this stage is admissible evidence and places the accused persons at
the scene of the offence.
23. The evidence on record further discloses that the assault arose following a
dispute over maize at the home of the 1st accused and that the injuries
inflicted were severe and targeted at vulnerable parts of the body. The nature
of the weapons allegedly used, namely a jembe and slasher, coupled with the
seriousness of the injuries sustained, are matters from which malice
aforethought may be inferred within the meaning of section 206 of the Penal
Code. Additionally, the evidence as presented by the prosecution raises the
issue of common intention under section 21 of the Penal Code, as the accused
persons are alleged to have jointly participated in the assault leading to the
deceased’s death.
24. Accordingly, this Court is satisfied that the prosecution has established a
prima facie case against the accused persons. Consequently, the accused
persons are hereby found to have a case to answer and are placed on their
defence pursuant to section 306(2) of the Criminal Procedure Code. The
defence hearing shall be on 18th May 2026.
25. It is so ordered.
DATED, SIGNED AND DELIVERED AT VIHIGA THIS 11TH DAY OF MAY
2026
IN THE HIGH COURT AT VIHIGA
CRIMINAL CASE NO. E004 OF 2026
REPUBLIC ………………………………………………………………….PROSECUTION
VERSUS
JACKSON SHIKANGA LUVAKA…..……………………………….......1ST ACCUSED
SAMUEL MULAMA SHIKANGA………………………………………….2ND ACCUSED
Coram:
Before Justice R. Nyakundi
M/s Leina for the state
Mr. Wekesa Advocate for the Accused
RULING
1. The accused persons were charged with the offence of murder contrary to
section 203 as read with section 204 of the Penal Code. The particulars of the
offence are that the accused persons on the 8th day of January 2026 at
unknown time at Kipchekwen Village, Banja location in Hamisi Sub-County
within Vihiga County jointly murdered Derrick Andambi Luvaka.
2. The lead prosecution counsel in these proceedings was Mrs. Leina for the
state whereas the Accused persons were under the representation of Learned
counsel Mr. Wekesa.
3. This case was based on the following brief facts that on 8th January 2026, the
deceased Derrick Andambi Luvaka went to the home of 1st Accused Jackson
Shikanga and found his wife Pamela winnowing maize. At the time, the 1st
Accused was not at home and the deceased borrowed maize from Pamela in
which she refused and alleged that the deceased had stolen maize while still
in the shamba and that this habit was rampant. The deceased insisted but
Pamela called her son Samuel Mulama Shikanga, the second accused who
intervened and told the deceased to go away. The deceased insisted that he
wanted maize and that is when the 1st Accused was called and upon his
1
CRIMINAL CASE NO E004 OF 2026
arrival, the quarrel escalated and the deceased was assaulted by the accused
persons who cut his hands using a jembe and slasher inflicting serious
injuries to him.
4. The prosecution marshalled 6 witnesses who gave evidence to establish the
ingredients of the offence of murder contrary to section 203 as read with
section 204 of the Penal code.
Summary for the Prosecution case.
5. PW1 Edith Khavere testified that she was a 57-year-old farmer and widow
who was informed on 8th January 2026 that her son, Derrick Andambi had
been attacked and assaulted. PW1 testified that she discovered her son lying
beside the road near the Banja MCA’s home where he identified his assailants
as Jackson, Jackson’s wife Pamela and their son Sammy, who had cut him
using a jembe and a slasher. She added that after reporting the incident to
Serem Police Station, the police transported the victim to Vihiga County
Teaching and Referral Hospital, where he was admitted with cuts on both
hands at the wrists, head and right eye. PW1 further testified that the
deceased passed on at the theatre on 10th January 2026 and she later
observed a pool of blood and suspected weapons at her house, while also
discovering that a radio and hoofer had been stolen from the residence. She
testified that she subsequently recorded a statement with the DCI and
witnessed a post-mortem on 24th January 2026, which determined the cause
of death was excessive bleeding due to external assault by a sharp object.
6. PW2 Jackline Shivuluka testified that on 8th January 2026, while at her
place of work, she received a call from a neighbour informing her that her
brother Derrick Andambi was being beaten and that smoke was emanating
from their house, indicating he might have been set ablaze. She instructed
her mother to investigate, who later confirmed that the deceased had been
admitted to Vihiga County Referral Hospital with both hands cut. She testified
that although the hospital required Social Health Authority (SHA) insurance
2
CRIMINAL CASE NO E004 OF 2026
or cash for treatment which the deceased lacked, she spoke to him and
successfully urged him to accept the amputation of his hands as per the
doctor’s suggestion. It was her testimony that on 10th January 2026, she
received notification of his death and his body was preserved in the morgue
at the same facility. She further testified that before his demise, the deceased
informed his mother that he had been beaten by his step-brother Jackson,
his son Samwel and his wife Pamela.
7. PW3 Hesbon Imoli testified that he was a Luhya male adult and a resident
of the mentioned place employed by Aquamist Company in Nairobi. He
recalled that on the 24th day of January 2026 at approximately 1550pm, he
attended and witnessed a post-mortem conducted on the body of his late
brother, Derrick Andambi Luvaka, which was performed at the Vihiga County
Referral hospital morgue by a pathologist. He stated that he agreed with the
opinion of the pathologist regarding the cause of death of his late brother and
confirmed that he had no complain about it.
8. PW4 No. 124296 PC (W) Margaret Wachira testified that on the 8th day of
January 2026 at approximately 1505hrs, she and Sgt Omodia were informed
by the Deputy OCS through IP Kibet of a serious assault at Kabinjari. Serving
as the crime aid of the day, she joined Sgt Omodia and proceeded to the scene
in m/v GKB 272 T driven by Cpl Shoka. She testified that upon arrival, they
discovered Derrick Andambi (now deceased) in a supine position with serious
injuries, specifically deep cuts on both wrists, his right leg and his ring and
middle toes, which had reportedly occurred at around 1200hrs. it was her
testimony that the deceased stated to her that he had been cut with a jembe
by his brother, Jackson and his son Samwel after he questioned Samwel
regarding the theft of his maize. It was PW4’s testimony that the scene was
photographed and documented before the officers escorted the victim to the
hospital with his mother; however, he later passed away while hospitalized in
serious condition.
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CRIMINAL CASE NO E004 OF 2026
9. Next in line to give evidence for the prosecution was PW5 - Dr. Clinto Kigweyi
whose role was to carry out a post mortem examination on the body of the
deceased which he relied upon to give evidence before this Court duly dated
24th January 2026. According to PW5, his positive findings were as follows:
pale chest within the respiratory system, bleeding from the cardiovascular
system; in the spinal cord, contracted spine. PW5 formed the opinion that the
cause of death was hemorrhage shock following excessive bleeding after
assault with a sharp object. PW5 produced the port mortem report as PExh1.
10. PW6 No. 101057 PC (W) Christabel Omumalia testified that she was
attached to DCI Hamisi and performing crime investigation duties when she
was approached by Edith Khavere on 16th January 2026 regarding the
murder of her son, Derrick Andambi Luvaka. She testified that Edith had
previously reported the case at Serem police station under OB 13 on
11/01/2026. She stated that on 8th January 2026, Edith found the deceased
lying beside the road near the Banja MCA’s home, where he identified his
attackers as E 1, E 2, and Pamela (E 1's wife), who had assaulted him with a
jembe and a slasher. Derrick was transported by police vehicle to Vihiga
County Teaching and Referral hospital at Mbale, where he succumbed to his
injuries on 10/01/2026 while in the theatre for amputation of his hands,
head, and right eye. Edith suspected the incident occurred at her house due
to blood stains found there and noted a history of threats against the
deceased by E 1. The witness further testified that a post-mortem conducted
by Dr. Clinton on 24/01/2026 concluded the cause of death was
HAEMRRHAGE SHOCK FOLLOWING EXCESSIVE BLEEDING AFTER
ASSAULT WITH SHARP OBJECT. It was her testimony that E 1 and E 2 were
arrested on 27/01/2026 and although the witness visited and photographed
the scene, noting dried blood, she was unable to recover the murder weapons.
4
CRIMINAL CASE NO E004 OF 2026
Prosecution Submissions Summary
11. The learned prosecution counsel M/s Leinah submitted that the accused
persons, Jackson Shikanga Luvaka and Samuel Mulama Shikanga, were
charged with the offence of murder contrary to section 203 as read with
section 204 of the Penal Code, following an incident on 8th January 2026
where they jointly murdered Derrick Andambi Luvaka. It was submitted that
the deceased was assaulted with a jembe and slasher after a dispute
regarding maize at the 1st Accused’s home, leading to serious injuries from
which he later succumbed. The learned prosecution counsel submitted that
the prosecution bore the burden of proof to establish the four essential
ingredients of murder: the death of a human being, that the death was
unlawfully caused, that there was malice aforethought, and that the accused
were the persons who killed the deceased.
12. The learned prosecution counsel submitted that the first ingredient was
proved by the testimony of Dr. Collins (PW5) and the post-mortem report,
which indicated the cause of death was hemorrhagic shock following
excessive bleeding after an assault with a sharp object. Regarding the second
and third ingredients, the learned prosecution counsel submitted that the
unlawful act and malice aforethought were demonstrated through the brutal
manner of the assault and the nature of the injuries inflicted, citing various
legal precedents such as Rex v Tubere S/o Ochen to show that intent can be
inferred from the weapon used and the part of the body injured.
13. Furthermore, the learned prosecution counsel submitted that the accused
persons acted with common intention under Section 21 of the Penal Code and
were placed at the scene of the crime through the evidence of a dying
declaration. It was submitted that the deceased, prior to his death, identified
the accused persons as his assailants to witnesses PW1 and PW2, and that
such declarations are admissible as the deceased is presumed to be telling
the truth in extremity. Consequently, the learned prosecution counsel
5
CRIMINAL CASE NO E004 OF 2026
submitted that a prima facie case had been established and prayed that the
court find the accused persons have a case to answer and be put on their
defence pursuant to section 211 (1) of the Criminal Procedure Code.
Analysis and Determination
14. Having carefully considered the evidence tendered by the prosecution, the
witness testimonies, the exhibits produced and the submissions by the
learned prosecution counsel, the issue for determination at this stage is: -
Whether the prosecution has established a prima facie case against the
accused persons
15. At this stage, the Court is not required to make a definitive finding on the
guilt or innocence of the accused persons, but only to determine whether
there is evidence which, if left uncontroverted, could lead a reasonable
tribunal properly directing itself to convict. Then, the question for this court
to answer is whether under Section 306 of the Criminal Procedure Code, the
prosecution has discharged the burden of proof to meet the threshold of a
prima facie case for the accused person to be place on his defence. First and
foremost, Article 50(2)(a) states as follows: -
“Every accused person has a right to a fair trial which includes the
right to be presumed innocent until the contrary is proved.”
16. The prima facie obligation is vested with the prosecution. The success or
failure of it depends wholly on the evidence presented to prove existence or
non-existence of a fact or facts in issue as derived in Section 107(1), 108 and
109 of the Evidence Act. The term Prima facie is note defined under Section
306 of the Criminal Procedure Code but the concept appears both in criminal
and civil law. There is a close knitted correlation between the term prima facie
as commonly used and prima facie evidence. In so far as the definition is
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concerned, as deducible in Section 306 of the CPC, the use of prima facie case
means the prosecution having presented enough evidence to proof the
elements of the offence in question. That the prosecution is entitled to prevail
in its case against the accused person. Speaking plainly, there are two senses
in which courts use the concept of prima facie. The first in the sense of the
prosecution producing sufficient evidence to render a reasonable conclusion
in favour of the allegation asserted in the indictment or the charge sheet. That
this what gives the trial court the power to exercise discretion to allow the
criminal case to proceed to the next stage which is the defence offering an
explanation or an answer to the charge.
17. In the second meaning of the concept, a prima facie case denotes a situation
where the prosecution has adduced sufficient evidence capable of persuading
a properly constituted court or tribunal that the accused person ought to be
called upon to answer the case against him. Such evidence is considered
adequate that, if the accused person chooses to remain silent or fails to rebut
it, the court may lawfully find him guilty and enter a conviction. Nonetheless,
the Constitution does not impose any obligation upon the accused person to
testify or tender evidence in response. Under Article 50(2)(f) of the
Constitution, an accused person has the right to remain silent and not testify
during the proceedings, while Article 50(2)(i) guarantees the right against self
incrimination. However, where the accused elects to exercise these
constitutional rights, he does so with the understanding that the unrebutted
prosecution evidence may result in an adverse finding against him.
18. It is well established in criminal law that once the prosecution establishes a
prima facie case, the evidential burden shifts to the accused person to
respond to the allegations raised. Even so, this does not in any way transfer
the legal burden of proof from the prosecution. The duty of proving the guilt
of the accused person beyond reasonable doubt remains with the prosecution
throughout the trial, consistent with Article 50(2)(a) of the Constitution,
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which guarantees the presumption of innocence until proven guilty. I
presume that is what the drafters of the constitution had in mind when the
rights centred around Art 50(2)(a), (j) and (i) of the same constitution.
In Republic Vs 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.”
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19. At the close of the prosecution case, the dicta in the case of Anthony Ndegwa
Ngari Vs Republic (2014) eKLR for the case of murder, the republic is
supposed to prove each of the following ingredients beyond reasonable doubt:
a. The fact of death
b. The fact that the deceased’s death was caused by an unlawful act or
omission.
c. That the accused committed the unlawful act which caused the death of
the deceased; and
d. That the accused had malice aforethought.
20. At a prima facie stage, the court asks the question whether a reasonable
tribunal or judge in a bench trial crediting the prosecution testimony and
drawing all rational inference in the prosecution’s favour could find every
element of the offence of murder proved beyond reasonable doubt. The court
has to test the sufficiency of the evidence by reviewing it and this is essentially
to address the issue whether the prosecution’s case is that which has met the
threshold of a prima facie case or is one which is so lacking that it should not
be allowed to proceed to the defence stage. The Constitution requires proof of
guilty beyond reasonable doubt. As a consequence, the constitutionally
required standard is founded under the right of presumption of innocence
until the contrary is proved. The due process clauses in Article 50 of the
constitution requires that each element of a crime be proved beyond
reasonable doubt. It is a requirement of the law for the court not to reserve a
ruling of a prima facie case at the close of the prosecution case. The judge
must make a judicial determination of the legal sufficiency of the
prosecution’s case before asking the accused to put in a defence.
21. In the case of R Vs Galbraith (1981) 1 WLR 1039, the court laid down the
test which must apply in answering the issues around prima facie case and
a submission of no case to answer thus: -
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“The difficulty (for the court) arises where there is some evidence but it is
of a tenuous character, for example, because of inherent weakness or
vagueness, or because it is inconsistent with other evidence –
a. Where the judge comes to the conclusion that the prosecution’s
evidence taken at its height, is such that a jury properly directed
could not properly convict upon it, it is his duty, upon a submission
being made, to stop the case.
b. Where however the prosecution evidence is such that its strengths
or weaknesses depend on the view to be taken of a witness’
reliability, or other matters which are generally within the province
of the jury and where on one possible view of the facts there is
evidence upon which a jury could properly come to the conclusion
that the defendant is guilty, the then judges should allow the matter
to be tried by the jury but for our case, is for the case to proceed
further to the defence to offer evidence in rebuttal or elect to keep
quiet. (emphasis mine).”
22. How does the court make a finding on a prima facie case? It is to look at the
proofs of evidence attached to the six (6) witnesses and the information as
drafted by the prosecution in totality as against the accused person. The fact
and cause of death of the deceased, Derrick Andambi Luvaka, were
sufficiently established through the testimonies of PW1, PW2, PW4, PW5 and
PW6. PW5, the pathologist, confirmed through the post-mortem report that
the cause of death was hemorrhagic shock following excessive bleeding after
assault with a sharp object. The prosecution also adduced evidence that the
deceased sustained deep cuts on both wrists and other parts of the body.
Further, the evidence of PW1, PW2, PW4 and PW6 consistently showed that
before his death, the deceased identified the accused persons, namely
Jackson Shikanga Luvaka and Samuel Mulama Shikanga, as among the
persons who assaulted him using a jembe and slasher. The Court notes that
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the prosecution relied substantially on the deceased’s dying declaration,
which at this stage is admissible evidence and places the accused persons at
the scene of the offence.
23. The evidence on record further discloses that the assault arose following a
dispute over maize at the home of the 1st accused and that the injuries
inflicted were severe and targeted at vulnerable parts of the body. The nature
of the weapons allegedly used, namely a jembe and slasher, coupled with the
seriousness of the injuries sustained, are matters from which malice
aforethought may be inferred within the meaning of section 206 of the Penal
Code. Additionally, the evidence as presented by the prosecution raises the
issue of common intention under section 21 of the Penal Code, as the accused
persons are alleged to have jointly participated in the assault leading to the
deceased’s death.
24. Accordingly, this Court is satisfied that the prosecution has established a
prima facie case against the accused persons. Consequently, the accused
persons are hereby found to have a case to answer and are placed on their
defence pursuant to section 306(2) of the Criminal Procedure Code. The
defence hearing shall be on 18th May 2026.
25. It is so ordered.
DATED, SIGNED AND DELIVERED AT VIHIGA THIS 11TH DAY OF MAY
2026