1. The accused person herein Joshua Kiema Wambua 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 19/5/2024 at around 1300 Hours at Mwarutswa in Lunga Lunga Sub-County within Kwale County, killed Mary Kalondu.
2. The prosecution called six (6) witnesses to support the information. The prosecution’s case against the accused person is that on the material day the deceased died, she had been left alone at her home by her daughter, the mother of the accused person, who had gone to church. The accused person was later that day found in a bar drinking and besides, he had with him some KShs 270,000/= for which he could not account the source. He was persuaded and handed over the money to the police. He later said that he had been at the deceased’s home, found her dead, taken her key hanging around her neck and gone into her house and taken the money. A post mortem was conducted upon the body of the deceased with the findings that she had died from strangulation. The accused person was then suspected to have strangled his elderly grandmother and taken the money.
3. PW 1, Moses Kyunguti is the accused person’s brother. He was the one who found the deceased seated in a plastic seat appearing dead on the material day of 19/5/2024. He alerted neighbours and other family members.
4. PW 2, Tabitha Kasive Syima is a daughter of the deceased and a sister to the mother of the accused and PW 1.
5. PW 3 Beth Nduku Kiema is a daughter of the deceased, sister of PW 2 and the mother of the accused person and PW 1. She was the one staying with the deceased. She had left the deceased well at home and gone to church when while there she received information that her mother had died.
6. At this stage the question 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.
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 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 was 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.”
11. I have considered the evidence of the six (6) prosecution witnesses, and the submissions by learned counsel for the accused person and I am satisfied that a prima facie case has been established against the accused person to warrant him to be placed on his defence.
12. 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.
13. Orders accordingly.
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 23rd day of June 2025
HON. ANDAYI W. F.
JUDGE
In the presence of: -
Accused person in court
Kabiaro for accused person.
Vallerie (Ms) for the State
Ummu - Court Assistant
2. The prosecution called six (6) witnesses to support the information. The prosecution’s case against the accused person is that on the material day the deceased died, she had been left alone at her home by her daughter, the mother of the accused person, who had gone to church. The accused person was later that day found in a bar drinking and besides, he had with him some KShs 270,000/= for which he could not account the source. He was persuaded and handed over the money to the police. He later said that he had been at the deceased’s home, found her dead, taken her key hanging around her neck and gone into her house and taken the money. A post mortem was conducted upon the body of the deceased with the findings that she had died from strangulation. The accused person was then suspected to have strangled his elderly grandmother and taken the money.
3. PW 1, Moses Kyunguti is the accused person’s brother. He was the one who found the deceased seated in a plastic seat appearing dead on the material day of 19/5/2024. He alerted neighbours and other family members.
4. PW 2, Tabitha Kasive Syima is a daughter of the deceased and a sister to the mother of the accused and PW 1.
5. PW 3 Beth Nduku Kiema is a daughter of the deceased, sister of PW 2 and the mother of the accused person and PW 1. She was the one staying with the deceased. She had left the deceased well at home and gone to church when while there she received information that her mother had died.
6. At this stage the question 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.
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 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 was 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.”
11. I have considered the evidence of the six (6) prosecution witnesses, and the submissions by learned counsel for the accused person and I am satisfied that a prima facie case has been established against the accused person to warrant him to be placed on his defence.
12. 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.
13. Orders accordingly.
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 23rd day of June 2025
HON. ANDAYI W. F.
JUDGE
In the presence of: -
Accused person in court
Kabiaro for accused person.
Vallerie (Ms) for the State
Ummu - Court Assistant