'1. The accused person herein, Rashid Salim Guya, 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 21st February 2024 at Kombani in Matuga Sub-County within Kwale County, killed Binti Hasani Nyuni.
2. The prosecution called seven (7) witnesses to support the charge.
3. PW 1, Janet Kemunto Abuga, is the proprietor of Paradise Bar at Kombeni where the incident happened.
4. PW 2, Ali Sadi Jumbe was a security guard at the bar and was on duty the night the incident happened. He ushered the accused person and the deceased into the bar. Afterwards, the accused person summoned him where he was seated with the deceased to inform him that the deceased had collapsed.
5. PW 3, Kassim Mohammed Nyuni, is an uncle of the deceased. He identified the body for post-mortem examination
6. PW 4, Virginia Muthoni Mugo, was an attendant at the bar and on duty on the material night. He served the accused person and the deceased with drinks.
7. PW 5, IP Elijah Mwadori, of Kombani police patrol base received the report of the death at the station from the accused person. He went to the hospital where the body was and also to the bar where the incident had taken place. He handed over investigations to the DCI officers from Kwale police station.
8. PW 6, Dr. Aisha Ali, of Coast General Teaching and Referral Hospital, produced the post-mortem form on behalf of her colleague Dr. Fatuma Gorab who conducted the post-mortem.
9. PW 7. PC Bethwel Chebogi Chemutai of DCI Kwale at the time was the investigating officer.
10. The prosecution’s case against the accused person is that on the material night at about 11.00 p.m., the accused person, in the company of the deceased, went to Paradise bar at Kombani shopping centre. They sat at a garden at the rear of the premises. Other patrons were in the front space of the bar. After a short while, the accused person called out for assistance. Apparently, the deceased had passed out and was lying on the ground. The accused person was assisted in ferrying the deceased to a nearby clinic but she was pronounced dead on arrival. A post-mortem was conducted upon the body of the deceased with the findings that the cause of death was severe traumatic head injury plus massive subdural haematoma secondary to the high force blunt object trauma to the head. The accused person was then suspected to have caused the death of the deceased.
11. 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.
12. 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.
13. 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.
14. 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.”
15. 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.”
16. I have considered the evidence of the seven (7) prosecution witnesses. Learned counsels for the prosecution and the defence opted not to make any submissions. I am satisfied that a prima facie case has been established against the accused person to warrant him to be placed on his defence.
17. 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.
18. Orders accordingly.
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 23rd day of September 2025
HON. ANDAYI W. F.
JUDGE
In the presence of: -
Accused person in court.
Mbwiza Rashid for the accused person.
Vallerie (Ms) for the State
Ummu - Court Assistant
'
2. The prosecution called seven (7) witnesses to support the charge.
3. PW 1, Janet Kemunto Abuga, is the proprietor of Paradise Bar at Kombeni where the incident happened.
4. PW 2, Ali Sadi Jumbe was a security guard at the bar and was on duty the night the incident happened. He ushered the accused person and the deceased into the bar. Afterwards, the accused person summoned him where he was seated with the deceased to inform him that the deceased had collapsed.
5. PW 3, Kassim Mohammed Nyuni, is an uncle of the deceased. He identified the body for post-mortem examination
6. PW 4, Virginia Muthoni Mugo, was an attendant at the bar and on duty on the material night. He served the accused person and the deceased with drinks.
7. PW 5, IP Elijah Mwadori, of Kombani police patrol base received the report of the death at the station from the accused person. He went to the hospital where the body was and also to the bar where the incident had taken place. He handed over investigations to the DCI officers from Kwale police station.
8. PW 6, Dr. Aisha Ali, of Coast General Teaching and Referral Hospital, produced the post-mortem form on behalf of her colleague Dr. Fatuma Gorab who conducted the post-mortem.
9. PW 7. PC Bethwel Chebogi Chemutai of DCI Kwale at the time was the investigating officer.
10. The prosecution’s case against the accused person is that on the material night at about 11.00 p.m., the accused person, in the company of the deceased, went to Paradise bar at Kombani shopping centre. They sat at a garden at the rear of the premises. Other patrons were in the front space of the bar. After a short while, the accused person called out for assistance. Apparently, the deceased had passed out and was lying on the ground. The accused person was assisted in ferrying the deceased to a nearby clinic but she was pronounced dead on arrival. A post-mortem was conducted upon the body of the deceased with the findings that the cause of death was severe traumatic head injury plus massive subdural haematoma secondary to the high force blunt object trauma to the head. The accused person was then suspected to have caused the death of the deceased.
11. 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.
12. 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.
13. 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.
14. 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.”
15. 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.”
16. I have considered the evidence of the seven (7) prosecution witnesses. Learned counsels for the prosecution and the defence opted not to make any submissions. I am satisfied that a prima facie case has been established against the accused person to warrant him to be placed on his defence.
17. 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.
18. Orders accordingly.
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 23rd day of September 2025
HON. ANDAYI W. F.
JUDGE
In the presence of: -
Accused person in court.
Mbwiza Rashid for the accused person.
Vallerie (Ms) for the State
Ummu - Court Assistant
'