1. The accused person herein, Jira Mbito Vunja is 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 on 18 th December 2024 at around 2000 Hours at Kalalani trading centre of Lunga Lunga Sub-County within Kwale County, he killed Luvuno Dzombo Bora
2. The prosecution called five (5) witnesses to support the information.
3. The prosecution’s case against the accused person is that the deceased, Luvuno Dzombo Bora was wife to the accused person with whom they had four children. However, they had separated for a while and the deceased had returned to her parents. At the time of the incident she was working at a local joint for selling palm wine commonly referred to as Maangwe. On 18 th December 2024, at about 8.00 p.m. the accused person went to the palm wine joint where the deceased was working. He sought out for the deceased and spoke to her. The deceased was seated with her back to the entrance. The accused person told her that their child was unwell and he had just come from Kilimangodo dispensary to take the child for treatment. He asked the deceased that they go home together. The deceased told him that it was late and she would go the following day. The accused person repeated the request but the deceased was adamant that she would come the following day. The accused person moved, getting out of the exit, placing himself behind the deceased who was seated facing inside the drinking place. Suddenly the deceased screamed shouting that the accused person had cut her. The accused person disappeared. The deceased was rushed to Kilimandogo dispensary. She was found to have a cut wound on the arm and abdomen. After dressing the arm, she was referred to Msambweni County Referral hospital. However, she died on the way.
4. Post mortem examination revealed the cause of death of the deceased was penetrating abdominal injury secondary to stab wound.
5. The accused person who had disappeared since the date of the incident subsequently presented himself to one of his paternal uncles and told him that he was tired of staying in the forest, that he was the one who killed his wife. He was taken to Mwangulu police post where he was arrested and handed over to DCI officers from Lunga Lunga police station. He was subsequently charged with the offence.
6. PW 1, Brian Gindo Magangi was the deceased’s employer at the liquor selling joint. He was present when the incident happened and he was the one who took the deceased to hospital. PW 2, Kaingu Jumaa Kaingu was a patron at the liquor joint and he was also present when the incident occurred. PW 3, Bora Vunja is the accused person’s elder paternal uncle whom the accused allegedly told that he had killed his wife. PW 3 informed the village chairman who came over and they took the accused person to the police post. PW 4. Dr. Dickson Ndegwa conducted a post mortem examination of the body and filed his report. PW 5, PC Eric Morema was the investigating officer in the case.
7. I have considered the evidence tendered by the prosecution witnesses. At this stage, the issue for this court to determine is whether the prosecution has established a prima facie case against the accused person to warrant him to be placed on his defence.
8. 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.
9. 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.
10. 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.”
11. From the above decision, it is imperative that for the court to find at this case 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. 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, 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. Learned counsels for the prosecution and the defence opted not to make any submissions.
13. I am satisfied that a prima facie case has been established against the accused person to warrant him to be placed on his defence.
14. Accordingly, the accused person is hereby placed on his defence under section 306(2) of the CPC. His 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.
15. Orders accordingly.
Ruling delivered , dated, and signed in Open Court this 9 th day of June 2026.
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The accused person in court.
Mbwiza h/b for Kabiaro for the accused person.
Orwa h/b for Vallerie (Ms) for the State
Ummu - Court Assistant
HON. ANDAYI W. F.
JUDGE
HC. Cr. Case No. E006/2024 6 Murder-Case to answer
2. The prosecution called five (5) witnesses to support the information.
3. The prosecution’s case against the accused person is that the deceased, Luvuno Dzombo Bora was wife to the accused person with whom they had four children. However, they had separated for a while and the deceased had returned to her parents. At the time of the incident she was working at a local joint for selling palm wine commonly referred to as Maangwe. On 18 th December 2024, at about 8.00 p.m. the accused person went to the palm wine joint where the deceased was working. He sought out for the deceased and spoke to her. The deceased was seated with her back to the entrance. The accused person told her that their child was unwell and he had just come from Kilimangodo dispensary to take the child for treatment. He asked the deceased that they go home together. The deceased told him that it was late and she would go the following day. The accused person repeated the request but the deceased was adamant that she would come the following day. The accused person moved, getting out of the exit, placing himself behind the deceased who was seated facing inside the drinking place. Suddenly the deceased screamed shouting that the accused person had cut her. The accused person disappeared. The deceased was rushed to Kilimandogo dispensary. She was found to have a cut wound on the arm and abdomen. After dressing the arm, she was referred to Msambweni County Referral hospital. However, she died on the way.
4. Post mortem examination revealed the cause of death of the deceased was penetrating abdominal injury secondary to stab wound.
5. The accused person who had disappeared since the date of the incident subsequently presented himself to one of his paternal uncles and told him that he was tired of staying in the forest, that he was the one who killed his wife. He was taken to Mwangulu police post where he was arrested and handed over to DCI officers from Lunga Lunga police station. He was subsequently charged with the offence.
6. PW 1, Brian Gindo Magangi was the deceased’s employer at the liquor selling joint. He was present when the incident happened and he was the one who took the deceased to hospital. PW 2, Kaingu Jumaa Kaingu was a patron at the liquor joint and he was also present when the incident occurred. PW 3, Bora Vunja is the accused person’s elder paternal uncle whom the accused allegedly told that he had killed his wife. PW 3 informed the village chairman who came over and they took the accused person to the police post. PW 4. Dr. Dickson Ndegwa conducted a post mortem examination of the body and filed his report. PW 5, PC Eric Morema was the investigating officer in the case.
7. I have considered the evidence tendered by the prosecution witnesses. At this stage, the issue for this court to determine is whether the prosecution has established a prima facie case against the accused person to warrant him to be placed on his defence.
8. 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.
9. 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.
10. 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.”
11. From the above decision, it is imperative that for the court to find at this case 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. 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, 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. Learned counsels for the prosecution and the defence opted not to make any submissions.
13. I am satisfied that a prima facie case has been established against the accused person to warrant him to be placed on his defence.
14. Accordingly, the accused person is hereby placed on his defence under section 306(2) of the CPC. His 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.
15. Orders accordingly.
Ruling delivered , dated, and signed in Open Court this 9 th day of June 2026.
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The accused person in court.
Mbwiza h/b for Kabiaro for the accused person.
Orwa h/b for Vallerie (Ms) for the State
Ummu - Court Assistant
HON. ANDAYI W. F.
JUDGE
HC. Cr. Case No. E006/2024 6 Murder-Case to answer