R U L I N G
1. The accused person herein, Morgan Chiti Nyale 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 at an unknown time between 11th February 2024 and 13th February 2024 at Mlafyeni in Shimba Hills Sub-Sub-County within Kwale County, killed Nyamawi Ndegwa Makoma.
2. The prosecution called sixteen (16) witnesses to support the information.
3. The prosecution’s case against the accused person is that the deceased, a boy aged about eleven (11) years old was on 11th February 2024 out in the fields looking after his parents’ cattle and goats. He, however, did not turn up in the evening. The family members mounted a search. That evening, the search party only recovered the cattle from the fields but the deceased and the goats were missing. The second day, the family got some leads that a young man (not a boy) had been seen leading the goats away. They divided themselves into various groups, one tracing the goats and the other the deceased. On 13th February 2024, the body of the deceased was recovered from a thicket not far away from their home with a huge stone resting on his head towards the chest.
4. Post mortem examination revealed the cause of death as fracture and dislocation of the neck as possible stabbing of the eyes.
5. Some of the goats the deceased was looking after were later recovered and traced to the accused person as the one who had them on the evening that the deceased went missing.
6. The Accused person was subsequently arrested and charged with the offence.
7. 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. I have considered the evidence of the prosecution witnesses.
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 and Virtual Platform, Teams this 28th day of April 2026.
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The accused person in court.
Kabiaro for the accused person.
Orwa h/b for Vallerie (Ms) for the State
Ummu - Court Assistant
1. The accused person herein, Morgan Chiti Nyale 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 at an unknown time between 11th February 2024 and 13th February 2024 at Mlafyeni in Shimba Hills Sub-Sub-County within Kwale County, killed Nyamawi Ndegwa Makoma.
2. The prosecution called sixteen (16) witnesses to support the information.
3. The prosecution’s case against the accused person is that the deceased, a boy aged about eleven (11) years old was on 11th February 2024 out in the fields looking after his parents’ cattle and goats. He, however, did not turn up in the evening. The family members mounted a search. That evening, the search party only recovered the cattle from the fields but the deceased and the goats were missing. The second day, the family got some leads that a young man (not a boy) had been seen leading the goats away. They divided themselves into various groups, one tracing the goats and the other the deceased. On 13th February 2024, the body of the deceased was recovered from a thicket not far away from their home with a huge stone resting on his head towards the chest.
4. Post mortem examination revealed the cause of death as fracture and dislocation of the neck as possible stabbing of the eyes.
5. Some of the goats the deceased was looking after were later recovered and traced to the accused person as the one who had them on the evening that the deceased went missing.
6. The Accused person was subsequently arrested and charged with the offence.
7. 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. I have considered the evidence of the prosecution witnesses.
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 and Virtual Platform, Teams this 28th day of April 2026.
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The accused person in court.
Kabiaro for the accused person.
Orwa h/b for Vallerie (Ms) for the State
Ummu - Court Assistant