1. The accused herein Moses Omondi Omil 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). The particulars of the offence are that on the night of 24th October 2023, at Nyaguda 'A' Village, East Uyoma Location, Rarieda Sub-County within Siaya County, jointly with others not before the court, murdered George Amos Okore Okeyo
2. The accused denied the charge and that the prosecution called nine (9) witnesses in support of its case.
3. The Prosecution’s case is that, on the night of 24th October 2023, the deceased George Amos Okore Okeyo was operating a motorcycle borrowed from PW2 and had dropped off PW3 at around 9:45 PM. Later that night, PW4 heard groaning noises outside his house and discovered a motorcycle parked at his door. On 25th October 2023, PW1, the local Assistant Chief, was alerted about an unconscious man on the road and that he assisted in taking him to hospital even as he noticed the deceased’s motorcycle parked at a nearby homestead. The deceased subsequently succumbed to his injuries. Medical evidence presented by the pathologist (PW6) established that the cause of death was excessive bleeding from the head resulting from blunt force trauma. Although police initially investigated the incident as a road traffic accident, PW7 testified that subsequent inquiries reclassified the matter into a murder investigation. The forensic link to the accused, Moses Omondi Omil was established through PW8, a liaison officer at Airtel Kenya who produced call data records showing that the accused’s registered SIM card was inserted into and used within the deceased’s mobile phone handset on several occasions following the incident including on 7th November 2023. Based on this forensic link connecting the accused to the deceased's mobile phone shortly after the fatal attack, PW9, the Investigating Officer, arrested the accused and charged him with the murder.
4. At the close of the prosecution’s case, learned counsels for the parties herein presented oral and written submissions on the issue of whether a prima facie case had been established by the prosecution so as to warrant the accused to be called upon to make a defence.
5. Mr Soita for the Prosecution submitted that a prima facie case was established based on circumstantial evidence and the doctrine of recent possession regarding the deceased’s mobile handset. He placed reliance on Isaac Ng’ang’a Kahiga alias Baabu v Republic [2006] eKLR
6. Counsel for the accused submitted that the Prosecution failed to present a complete evidential chain linking the accused to the killing. Counsel argued that no witness placed the accused at the crime scene and that no eyewitness saw him assault the deceased and that subsequent use of the deceased’s handset creates mere suspicion which cannot form the basis of a conviction. Counsel relied on Sawe v Republic [2003] KLR 364 , Ramanlal Trambaklal Bhatt v R [1957] EA 332 , and Muthini v Republic [2024] KEHC 2182 (KLR) .
7. I have considered the evidence of the prosecution at this stage of the proceedings as well as the submissions. I find the issue for determination is whether a prima facie case has been established by the prosecution so as to warrant the accused to be placed on his defence. A prima facie case is one where a reasonable tribunal directing its mind to the law and evidence placed before it can convict an accused person if no evidence is tendered by the defence to the contrary. What this means is that the evidence so far tendered must be sufficient to sustain a conviction against the accused were he to elect to remain silent in defence. See Bhat Vs R [1957] EA 332.
8. After analyzing the evidence and without delving deeper into a thorough examination of the evidence so as not to prejudice the defence case, I find that on the connection between the accused and the deceased's death, the Prosecution relies on circumstantial evidence specifically the call data records and forensic evidence presented by PW8 and PW9 showing that the accused's SIM card was inserted into and used within the deceased's mobile phone handset shortly after the deceased was killed. I find that the uncontradicted forensic link regarding the deceased's handset constitutes sufficient material on which a reasonable tribunal properly directing itself could convict if no explanation in rebuttal is offered. I find that the accused having been placed at the scene of crime must now offer an explanation as to how the deceased met his death.
9. In view of the foregoing observations, it is my finding that the prosecution has established a prima facie case against the accused herein to warrant him to be placed on his defence. Consequently, I find that the accused herein Moses Omondi Omil , has a case to answer and is now called upon to elect to make his defence in accordance with the provisions of section 306(2) of the Criminal Procedure Code.
Dated and delivered at Siaya, this 22 nd day of September 2026
D.KEMEI
JUDGE
In the presence of:
Moses Omondi Omil………………………. Accused
M/s Awuor………………………………….for Accused
Soita……………………………….for Prosecution
Maurine…………………………Court Assistant
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2. The accused denied the charge and that the prosecution called nine (9) witnesses in support of its case.
3. The Prosecution’s case is that, on the night of 24th October 2023, the deceased George Amos Okore Okeyo was operating a motorcycle borrowed from PW2 and had dropped off PW3 at around 9:45 PM. Later that night, PW4 heard groaning noises outside his house and discovered a motorcycle parked at his door. On 25th October 2023, PW1, the local Assistant Chief, was alerted about an unconscious man on the road and that he assisted in taking him to hospital even as he noticed the deceased’s motorcycle parked at a nearby homestead. The deceased subsequently succumbed to his injuries. Medical evidence presented by the pathologist (PW6) established that the cause of death was excessive bleeding from the head resulting from blunt force trauma. Although police initially investigated the incident as a road traffic accident, PW7 testified that subsequent inquiries reclassified the matter into a murder investigation. The forensic link to the accused, Moses Omondi Omil was established through PW8, a liaison officer at Airtel Kenya who produced call data records showing that the accused’s registered SIM card was inserted into and used within the deceased’s mobile phone handset on several occasions following the incident including on 7th November 2023. Based on this forensic link connecting the accused to the deceased's mobile phone shortly after the fatal attack, PW9, the Investigating Officer, arrested the accused and charged him with the murder.
4. At the close of the prosecution’s case, learned counsels for the parties herein presented oral and written submissions on the issue of whether a prima facie case had been established by the prosecution so as to warrant the accused to be called upon to make a defence.
5. Mr Soita for the Prosecution submitted that a prima facie case was established based on circumstantial evidence and the doctrine of recent possession regarding the deceased’s mobile handset. He placed reliance on Isaac Ng’ang’a Kahiga alias Baabu v Republic [2006] eKLR
6. Counsel for the accused submitted that the Prosecution failed to present a complete evidential chain linking the accused to the killing. Counsel argued that no witness placed the accused at the crime scene and that no eyewitness saw him assault the deceased and that subsequent use of the deceased’s handset creates mere suspicion which cannot form the basis of a conviction. Counsel relied on Sawe v Republic [2003] KLR 364 , Ramanlal Trambaklal Bhatt v R [1957] EA 332 , and Muthini v Republic [2024] KEHC 2182 (KLR) .
7. I have considered the evidence of the prosecution at this stage of the proceedings as well as the submissions. I find the issue for determination is whether a prima facie case has been established by the prosecution so as to warrant the accused to be placed on his defence. A prima facie case is one where a reasonable tribunal directing its mind to the law and evidence placed before it can convict an accused person if no evidence is tendered by the defence to the contrary. What this means is that the evidence so far tendered must be sufficient to sustain a conviction against the accused were he to elect to remain silent in defence. See Bhat Vs R [1957] EA 332.
8. After analyzing the evidence and without delving deeper into a thorough examination of the evidence so as not to prejudice the defence case, I find that on the connection between the accused and the deceased's death, the Prosecution relies on circumstantial evidence specifically the call data records and forensic evidence presented by PW8 and PW9 showing that the accused's SIM card was inserted into and used within the deceased's mobile phone handset shortly after the deceased was killed. I find that the uncontradicted forensic link regarding the deceased's handset constitutes sufficient material on which a reasonable tribunal properly directing itself could convict if no explanation in rebuttal is offered. I find that the accused having been placed at the scene of crime must now offer an explanation as to how the deceased met his death.
9. In view of the foregoing observations, it is my finding that the prosecution has established a prima facie case against the accused herein to warrant him to be placed on his defence. Consequently, I find that the accused herein Moses Omondi Omil , has a case to answer and is now called upon to elect to make his defence in accordance with the provisions of section 306(2) of the Criminal Procedure Code.
Dated and delivered at Siaya, this 22 nd day of September 2026
D.KEMEI
JUDGE
In the presence of:
Moses Omondi Omil………………………. Accused
M/s Awuor………………………………….for Accused
Soita……………………………….for Prosecution
Maurine…………………………Court Assistant
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