The Accused, Philip Gikunda alias Yusuf, is charged with the offence of murder contrary to
Section 203 as read with Section 204 of the Penal Code, Cap 63 of the Laws of Kenya.
The particulars of the information dated 31st December 2025 are that on the 24th day of
November 2025, at around 0640 hours, at Magogoni Area in Kisauni Sub-County within
Mombasa County, the Accused, jointly with another not before court, murdered David
Wanyonyo Gari.
The Accused denied the charge and a plea of not guilty was duly entered. The prosecution
thereafter called its witnesses and subsequently closed its case. The matter now comes before
the court for a ruling on whether the prosecution has established a prima facie case against
the Accused so as to warrant him to be placed on his defence.
The court reminds itself that the burden of proof rests at all times with the prosecution. At
this stage the court does not make a definitive finding of guilt, nor does it weigh or resolve
competing evidence or credibility — those are matters for final determination. The sole
question before the court is whether the prosecution evidence, taken at its highest, is
sufficient to call upon the Accused to answer the charge.
Analysis and Determination
Section 306 of the Criminal Procedure Code provides as follows:
"When the evidence of the witnesses for the prosecution has been
concluded, the court, if it considers that there is no evidence that the
accused or any one of several accused committed the offence shall, 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."
The court has considered the evidence adduced by the prosecution and the issue for
determination is whether that evidence suffices to warrant the Accused to be placed on his
defence as required under Article 50 of the Constitution of Kenya, 2010. The applicable
threshold is that of a prima facie case.
In Republic v Abdi Ibrahim Owl [2013] eKLR, a prima facie case was defined in the
following terms:
"'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'. In simple terms, it means the establishment of a rebuttable
presumption that an accused person is guilty of the offence with which
he/she is charged."
The foundational authority on the standard applicable at this stage remains Ramanlal
Trambaklal Bhatt v Republic [1957] EA 332 at pages 334–335, where the court held:
"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.' ... 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 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."
The Court of Appeal affirmed and applied the Bhatt standard in Anthony Njue Njeru v
Republic, Criminal Appeal No. 77 of 2006 [2006] KECA 339 (KLR), and further expressed
that it is undesirable to deliver a detailed reasoned ruling at the close of the prosecution's case
where the court intends to place the accused on his defence, as excessive detail may
compromise the evidentiary quality of the defence to be mounted.
The court is also guided by Festo Wandera Mukando v Republic [1980] KLR 103, where the
court cautioned:
"...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, in 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."
In Republic v Joseph Shitandi & Another [2014] eKLR, the test was stated with practical
clarity:
"A case to answer is a case where if the accused keeps quiet, the evidence
of the prosecution should be such that a conviction will result."
As the High Court of Australia framed the inquiry in May v O'Sullivan [1955] 92 CLR 654 at
page 658: the question is not whether on the evidence as it stands the Accused ought to be
convicted, but whether on the evidence as it stands he could lawfully be convicted.
Application to the Facts
The court has carefully considered the totality of the evidence adduced by the prosecution
witnesses. Without going into the merits of that testimony — which the court must carefully
avoid at this stage so as not to prejudice the conduct of the defence — the court is satisfied
that the prosecution has placed before it sufficient evidence which, taken at its highest, is
capable of establishing a prima facie case against the Accused on all three elements of the
offence of murder.
On the fact of death of David Wanyonyo Gari, evidence going to the deceased's death and
its cause has been placed before the court. On the unlawful act, there is evidence connecting
the Accused to the events at Magogoni Area at around 0640 hours on 24th November 2025.
On malice aforethought, as defined under Section 206 of the Penal Code, the circumstances
disclosed by the prosecution evidence are, taken at their highest, capable of supporting an
inference of the requisite intention.
The court says no more than this at this stage, consistent with the guidance in Festo Wandera
Mukando v Republic and Anthony Njue Njeru v Republic cited above.
Conclusion and Disposition
Having considered the evidence of the prosecution witnesses and without going into the
merits of their testimony, the court is satisfied that a prima facie case has been established
against Philip Gikunda alias Yusuf, warranting him to be placed on his defence.
Accordingly, the court finds that the Accused has a case to answer and is placed on his
defence. His rights under Article 50(2)(i), (k) and (l) of the Constitution of Kenya, 2010 as
read with Section 306(2) of the Criminal Procedure Code are hereby guaranteed and shall be
explained to the Accused in the presence of his legal representative and in a language that he
understands.
It is so ordered.
Dated, signed and delivered in Open Court this 11th day of June 2026.
HON. LADY JUSTICE W. K. MICHENI
Section 203 as read with Section 204 of the Penal Code, Cap 63 of the Laws of Kenya.
The particulars of the information dated 31st December 2025 are that on the 24th day of
November 2025, at around 0640 hours, at Magogoni Area in Kisauni Sub-County within
Mombasa County, the Accused, jointly with another not before court, murdered David
Wanyonyo Gari.
The Accused denied the charge and a plea of not guilty was duly entered. The prosecution
thereafter called its witnesses and subsequently closed its case. The matter now comes before
the court for a ruling on whether the prosecution has established a prima facie case against
the Accused so as to warrant him to be placed on his defence.
The court reminds itself that the burden of proof rests at all times with the prosecution. At
this stage the court does not make a definitive finding of guilt, nor does it weigh or resolve
competing evidence or credibility — those are matters for final determination. The sole
question before the court is whether the prosecution evidence, taken at its highest, is
sufficient to call upon the Accused to answer the charge.
Analysis and Determination
Section 306 of the Criminal Procedure Code provides as follows:
"When the evidence of the witnesses for the prosecution has been
concluded, the court, if it considers that there is no evidence that the
accused or any one of several accused committed the offence shall, 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."
The court has considered the evidence adduced by the prosecution and the issue for
determination is whether that evidence suffices to warrant the Accused to be placed on his
defence as required under Article 50 of the Constitution of Kenya, 2010. The applicable
threshold is that of a prima facie case.
In Republic v Abdi Ibrahim Owl [2013] eKLR, a prima facie case was defined in the
following terms:
"'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'. In simple terms, it means the establishment of a rebuttable
presumption that an accused person is guilty of the offence with which
he/she is charged."
The foundational authority on the standard applicable at this stage remains Ramanlal
Trambaklal Bhatt v Republic [1957] EA 332 at pages 334–335, where the court held:
"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.' ... 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 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."
The Court of Appeal affirmed and applied the Bhatt standard in Anthony Njue Njeru v
Republic, Criminal Appeal No. 77 of 2006 [2006] KECA 339 (KLR), and further expressed
that it is undesirable to deliver a detailed reasoned ruling at the close of the prosecution's case
where the court intends to place the accused on his defence, as excessive detail may
compromise the evidentiary quality of the defence to be mounted.
The court is also guided by Festo Wandera Mukando v Republic [1980] KLR 103, where the
court cautioned:
"...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, in 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."
In Republic v Joseph Shitandi & Another [2014] eKLR, the test was stated with practical
clarity:
"A case to answer is a case where if the accused keeps quiet, the evidence
of the prosecution should be such that a conviction will result."
As the High Court of Australia framed the inquiry in May v O'Sullivan [1955] 92 CLR 654 at
page 658: the question is not whether on the evidence as it stands the Accused ought to be
convicted, but whether on the evidence as it stands he could lawfully be convicted.
Application to the Facts
The court has carefully considered the totality of the evidence adduced by the prosecution
witnesses. Without going into the merits of that testimony — which the court must carefully
avoid at this stage so as not to prejudice the conduct of the defence — the court is satisfied
that the prosecution has placed before it sufficient evidence which, taken at its highest, is
capable of establishing a prima facie case against the Accused on all three elements of the
offence of murder.
On the fact of death of David Wanyonyo Gari, evidence going to the deceased's death and
its cause has been placed before the court. On the unlawful act, there is evidence connecting
the Accused to the events at Magogoni Area at around 0640 hours on 24th November 2025.
On malice aforethought, as defined under Section 206 of the Penal Code, the circumstances
disclosed by the prosecution evidence are, taken at their highest, capable of supporting an
inference of the requisite intention.
The court says no more than this at this stage, consistent with the guidance in Festo Wandera
Mukando v Republic and Anthony Njue Njeru v Republic cited above.
Conclusion and Disposition
Having considered the evidence of the prosecution witnesses and without going into the
merits of their testimony, the court is satisfied that a prima facie case has been established
against Philip Gikunda alias Yusuf, warranting him to be placed on his defence.
Accordingly, the court finds that the Accused has a case to answer and is placed on his
defence. His rights under Article 50(2)(i), (k) and (l) of the Constitution of Kenya, 2010 as
read with Section 306(2) of the Criminal Procedure Code are hereby guaranteed and shall be
explained to the Accused in the presence of his legal representative and in a language that he
understands.
It is so ordered.
Dated, signed and delivered in Open Court this 11th day of June 2026.
HON. LADY JUSTICE W. K. MICHENI