A. INTRODUCTION
1. The 1st and 2nd Accused persons were jointly charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap. 63). The particulars are that on the 28th day of February 2024, at Ebwali Sub-Location within Luanda Sub-County in Vihiga County, they jointly with others not before the Court murdered Wilson Obwoche Omutakha.
2. On 2nd April 2025 the 1st Accused person, Titus Omulimi Shaban alias Kibisu, entered into a Plea Bargain Agreement dated 29th January 2025. Upon the agreement being adopted, this Court convicted him of the offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code and sentenced him. The trial thereafter proceeded against the 2nd Accused person alone.
3. The Prosecution called five witnesses and closed its case. Both parties have filed written submissions on whether the 2nd Accused has a case to answer: the Prosecution's submissions are dated and filed on 8th May 2026, and the 2nd Accused's submissions, drawn by Ms. Nereah Rabote, are dated 11th May 2026. This is the ruling on that question.
4. Two matters of form should be disposed of at the outset. The Prosecution's submissions are headed "High Court Criminal Case No. E00 of 2026"; the correct number is E006 of 2024. They also pray that the accused be put on his defence "pursuant to Section 211(1) of the Criminal Procedure Code." Section 211 governs trials before Subordinate Courts. The provision applicable to a trial before this Court is Section 306 of the Criminal Procedure Code (Cap. 75). Nothing turns on either slip and I say no more about them.
The Prosecution Case
5. PW1, Mildred Anono, was a pupil aged twelve years at the time of the incident and is the daughter of PW2. Her evidence is that on 28th February 2024 at about 1800 hours she was washing utensils outside the family house while her father was inside and her uncle, the deceased, was washing his cap in the compound. Four persons whom she knew came to the homestead: Sammy (the 2nd Accused), Okello, Kibisu (the 1st Accused) and Matonya. She knew them because Sammy and Okello are brothers and neighbours, while Kibisu and Matonya come from a neighbouring area and habitually visited Sammy.
6. According to the Prosecution, PW1 testified that Kibisu and Matonya entered the homestead while Sammy and Okello left; that shortly thereafter Kibisu removed a knife from a carrier bag he was carrying and stabbed the deceased once on the neck as Matonya tried to restrain him; that the deceased staggered and fell; and that as Kibisu and Matonya ran away, she heard Kibisu shouting to alert Sammy that he had finished the job. PW1 then ran into the house and called her father.
7. PW2, David Ondele Omutaha, came out of the house, found the deceased staggering and falling, and was told by the deceased that he had been stabbed by Kibisu. He saw four persons running from his compound and gave chase with a jembe handle but could not reach them. A carrier bag left at the scene was found to contain a pair of metal pole-climbing shoes, tomatoes, a blue and white jacket, a blue overall marked Jaisham Ltd, pliers and a black cable. He sent PW1 to call his younger brother.
8. PW3, Ernest Olang', arrived, confirmed that the deceased was not breathing, and alerted the area Chief and the Police. Both PW2 and PW3 spoke of a subsisting land dispute in the family. PW2 referred to a parcel of their grandfather Jorum Amakutwa Sirangala said to have been grabbed by Joseck Ochola Kwendo, with proceedings pending at the Vihiga law Courts, and named the deceased as one of those actively pursuing the matter. PW3 referred to threats received from Sammy and his brother Joseck concerning land parcel East Bunyore/Iboona/272 and to Succession Cause No. 158 of 2020.
9. PW4, Dr. Muchana, conducted the post-mortem on 6th March 2024 and produced the report as an exhibit. The deceased had a single deep cut wound on the neck inflicted by a sharp object and no other external injuries. The cause of death was given as internal bleeding secondary to a stab wound following assault.
10. PW5, the Investigating Officer, testified to the scene processing, the recovery of the carrier bag and its contents, the arrest of the 2nd Accused at his home and of the 1st Accused thereafter, and the compilation of the file. He confirmed that the murder weapon was never recovered. He also confirmed that he had recorded a statement from one Simon Emile Omito, a Pastor, who stated that he had been with the 2nd Accused at a fellowship at Mahanga on the material day at around 1800 hours.
The Submissions
11. For the Prosecution, Mr. Leina Davies submitted that the ingredients of murder are the death of a human being, that the death was unlawfully caused, malice aforethought, and the identification of the accused as the person who killed the deceased. She submitted that death is not in dispute and was proved by the post-mortem report; that the unlawful act was proved by PW1's account of the stabbing; and that malice is established from the weapon used, the manner of its use, the part of the body injured and the conduct of the accused, relying on Rex v Govan Pazi s/o Mukurisho (1943) 10 EACA and Hamisi s/o Tarusi (1953) 20 EACA 176. She acknowledged that the case against the 2nd Accused rests squarely on circumstantial evidence and relied on Republic v Kipkering arap Koskei & another (1949) 16 EACA 135.
12. For the 2nd Accused, Ms. Rabote submitted that while the fact and cause of death have been established, the Prosecution has placed no evidence linking her client to the offence, whether by identification or by the doctrine of recent possession. Her central submission is that PW1, the star witness, testified that during the attack the 2nd Accused was not at the scene, and that it was only PW3 and PW5 — witnesses who came to know of events afterwards — who sought to place him there. She further submitted that PW5 confirmed having recorded the statement of Simon Emile Omito, who placed the 2nd Accused elsewhere at about 1800 hours; and that PW1 did not, in her statement to the Police, record anything about the 1st Accused having called out to the 2nd Accused, that this emerged only at the hearing as an afterthought, and that PW5 confirmed he had never been told of any such thing. She relied on Anthony Ndegwa Ngari v Republic [2014] eKLR and prayed that the 2nd Accused be found to have no case to answer.
The Law on a Case to Answer
13. Section 306(1) of the Criminal Procedure Code provides that 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 any arguments which Counsel may desire to submit, record a finding of not guilty. Section 306(2) provides that where the Court considers that there is evidence that the accused committed the offence, it shall inform him of his right to give evidence on oath or to make an unsworn statement and to call witnesses.
14. The classic statement of what constitutes a prima facie case remains that of the Court of Appeal for Eastern Africa in Ramanlal Trambaklal Bhatt v R [1957] EA 332:
"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."
15. Their Lordships went on to say that a prima facie case must at least mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence, could convict if no explanation were offered by the defence. It is equally clear from Bhatt that the Court is not required at this 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 determination can properly be made only after the defence has been heard.
16. The two situations in which a submission of no case to answer will properly succeed were identified in the Practice Note issued by Lord Parker CJ in 1962 and consistently applied in this jurisdiction: first, where there has been no evidence to prove an essential element of the offence charged; and secondly, where the evidence adduced by the Prosecution has been so discredited by cross-examination, or is so manifestly unreliable, that no reasonable tribunal could safely convict upon it. See also Republic v Abdi Ibrahim Owl [2013] eKLR and Ronald Nyaga Kiura v Republic [2018] eKLR.
17. I must therefore neither usurp the function I will discharge at the end of the trial by weighing the evidence conclusively now, nor abdicate my duty by putting the accused on his defence merely because some evidence exists. The question is a focused one: taking the Prosecution evidence at its highest, is there evidence upon which a reasonable tribunal, properly directing itself, could convict?
The Ingredients of Murder
18. For the offence of murder under Section 203 of the Penal Code, the
Prosecution must ultimately establish: (a) the death of the deceased and
its cause; (b) that the death was caused by an unlawful act or omission; (c) that the accused committed that unlawful act; and (d) that he did so with malice aforethought as defined in Section 206 of the Penal Code. See Anthony Ndegwa Ngari v Republic [2014] eKLR, relied on by both Counsels. At this stage I ask, in respect of each ingredient, whether there is evidence, not whether that evidence proves the matter beyond reasonable doubt.
(a) and (b): The fact of death and its unlawful cause
19. These are not in contest and I can deal with them shortly. PW4 produced the post-mortem report establishing that Wilson Obwoche Omutakha is dead and that the cause of death was internal bleeding secondary to a stab wound following assault. The single deep wound to the neck, with no other external injury, is wholly inconsistent with accident or natural causes. Every homicide is presumed unlawful unless it is excused or authorized by law: Gusambizi s/o Wesonga v R (1948) 15 EACA 65. Nothing on this record raises any question of accident, self-defence or lawful excuse in relation to the deceased. The first two ingredients are established.
(c) and (d): Participation and malice aforethought
20. So far as the person who wielded the knife is concerned, there is direct evidence from PW1, an eyewitness, that the 1st Accused removed a knife from a carrier bag and stabbed the deceased once on the neck, and there is a dying declaration to PW2 to the same effect, admissible under Section 33(a) of the Evidence Act. As to malice, the factors identified in Nzuki v Republic [1993] KLR 171 - the nature of the weapon, the manner of its use, the part of the body targeted and the conduct of the assailant before and after - all point one way: a knife brought to the scene concealed in a bag, driven into the neck, in the face of an attempt by a companion to restrain him, followed by immediate flight. There is ample evidence of malice aforethought in relation to the act itself.
21. But the 1st Accused is no longer on trial. The only question before me is whether there is evidence upon which a reasonable tribunal could find that
the 2nd Accused is criminally liable for that killing. That is the issue to which I now turn, and it is the only real issue in this ruling.
The Case Against the 2nd Accused
What is not evidence against him
22. I begin by clearing away three matters which cannot assist the Prosecution, because it is important that the analysis rests only on what is properly before me.
23. First, the conviction of the 1st Accused. He was convicted on his own plea under a negotiated Plea Bargain Agreement. A conviction entered against a co-accused on his own plea is not evidence against anyone else. It is not a judicial determination made after a contest, and the 1st Accused was never called as a witness in this trial, never gave evidence on oath, and was never cross-examined.
24. Secondly, and for the same reason, anything the 1st Accused said in the course of the plea bargain process, in mitigation, or to the Probation Officer is not evidence against the 2nd Accused. I have in mind in particular the passage in the pre-sentence report, recorded in this Court's sentencing ruling of 2nd April 2025, to the effect that the victim's family believed that the 2nd Accused had hired the 1st Accused to commit the crime following an ongoing land dispute. That was a record of what a family believed, placed before the Court for the purpose of sentencing a different man. It is hearsay upon opinion, it was never tested, and it forms no part of the evidence in this trial. I put it entirely out of my mind, and I record that I do so expressly.
25. Thirdly, the contents of the carrier bag. The pole-climbing shoes, overall, pliers and cable were connected, on PW3's evidence, with the 1st Accused, who was said to hold himself out as a Kenya Power employee. Nothing was recovered from the 2nd Accused. Ms. Rabote is right that the doctrine of recent possession has no application to her client, and I did not understand the Prosecution to contend otherwise.
The evidence that does bear on the 2nd Accused
i. Stripped to its essentials, the Prosecution case against the 2nd Accused rests on four strands.
i. PW1's recognition of him as one of four persons who came to the homestead moments before the stabbing; ii. PW1's evidence that, immediately after the stabbing, the 1st Accused shouted to alert him that he had finished the job; iii. The evidence of PW2 and PW3 of a subsisting land dispute between the deceased's branch of the family and that of the 2nd Accused, in which the deceased was among those actively pursuing the claim; and iv. The undisputed association between the 2nd Accused and the 1st Accused, who was his former schoolmate and a habitual visitor to his home.
26. As to (i), this is a case of recognition rather than identification of a stranger. PW1 knew all four men by name; Sammy and Okello were her neighbours, and Kibisu and Matonya were regular visitors to Sammy's home. Recognition of persons well known to a witness is generally more reliable than the identification of strangers: Anjononi & others v Republic [1976–80] 1 KLR 1566. The incident occurred at about 1800 hours in an open compound at a distance from which PW1 was able to observe a knife being drawn from a bag and an attempt by one man to restrain another. Whether visibility was in truth adequate, and whether a child of that age standing where she stood could see and hear all that she describes, are questions I will have to examine with care at the conclusion of the trial. They are not questions I can resolve now.
27. Strand (ii) is, in my judgment, the pivot of the Prosecution case. If PW1 is believed on this point, the shout is not merely evidence that the 2nd Accused was nearby. It is evidence of a report of completion made by the killer to a person who was expecting it. That is capable, if accepted, of founding an inference that the two were acting to a common design. I should add that this piece of evidence is not hearsay. It is not tendered to prove the truth of anything asserted by the 1st Accused; it is tendered as an act - the fact that the utterance was made, at that moment, to that person - from which an inference may be drawn. It is original evidence, and it is admissible.
28. Strand (iii) supplies a possible motive. Motive is not an ingredient of murder and its absence is immaterial where participation is proved, but its presence is a relevant circumstance where the case depends on inference: Section 9 of the Evidence Act. There is evidence from two witnesses of a land dispute in which the deceased was an active protagonist against the 2nd Accused's brother, and of threats emanating from that quarter.
The contradiction relied upon by the defence
29. Ms. Rabote's strongest point is that PW1 placed the 2nd Accused away from the scene at the moment of the attack. She submits that this destroys the Prosecution case. The Prosecution's own summary of PW1's evidence is to the same effect: that Kibisu and Matonya entered the homestead while Sammy and Okello left.
30. I do not accept that this is fatal, and it is important to explain why. Liability under Section 21 of the Penal Code does not depend upon presence at the moment the fatal blow is struck. That Section provides that where two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the Prosecution of that purpose an offence is committed of such a nature that its commission was a probable consequence of the Prosecution of that purpose, each of them is deemed to have committed the offence. The elements were summarized in Dickson Mwangi Munene & Another v Republic [2014] eKLR, and it is settled that a common intention need not rest on a pre-arranged plan but may be inferred from the conduct of the parties: Dracaku s/o Afia & Another v R [1963] EA 363. What must be shown is that the accused shared with the other perpetrators a common intention to pursue a specific unlawful purpose which led to the commission of the offence charged: Solomon Mungai v Republic [1965] EA 363.
31. On the Prosecution's version, the two accounts are not in conflict at all; they cohere. A man who arrives with the assailant, withdraws a few paces before the blow is struck, and is then called to and told that the job is finished, is not thereby exculpated. On one reading of that evidence his withdrawal is itself a circumstance from which a tribunal might infer design rather than innocence. I express no view on whether that is the correct reading. I say only that it is a reading reasonably open on the evidence, and that is enough at this stage.
32. Ms. Rabote's second point that the shout appears nowhere in PW1's statement to the Police, and that PW5 was never told of it is a substantial one and I do not underestimate it. Evidence which surfaces for the first time from the witness box, on the very issue on which the case turns, invites the closest scrutiny, and the Prosecution should be under no illusion that it will escape that scrutiny at the end of this trial. But an omission from a witness statement goes to the credit and weight of the evidence, not to its admissibility. Under Bhatt the Court does not finally determine credit at half-time. This is not a case of evidence so discredited in cross-examination, or so manifestly unreliable on its face, that no reasonable tribunal could act on it within the second limb of the Practice Note.
The alibi
33. The 2nd Accused's answer, foreshadowed in his cautionary statement and in the evidence of PW5, is an alibi: that he spent the afternoon at a fellowship at Mahanga presided over by Pastor Simon Emile Omito, left at about 1830 hours and reached home at about 1900 hours, learning of the incident only on arrival.
34. An accused who raises an alibi assumes no burden of proving it; the burden remains throughout on the Prosecution to displace it and to place the accused at the scene: Karanja v Republic [1983] KLR 501; Wang'ombe v Republic [1976] KLR 173. If the alibi is made good it will be a complete answer, and the fact that it draws support from material gathered by the
Prosecution itself gives it a strength which the Court will have to confront directly. But an alibi is by its nature a matter to be raised and considered at the defence stage, and it falls to be weighed against the whole of the evidence once that evidence is complete. It cannot be determined on submissions at half-time.
Circumstantial evidence
35. The Prosecution rightly accepts that its case against the 2nd Accused is circumstantial. Where a conviction is to rest on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt: Republic v Kipkering arap Koskei & Another (1949) 16 EACA 135; Abanga alias Onyango v Republic, Criminal Appeal No. 32 of 1990; Sawe v Republic [2003] KLR 364.
36. That, however, is the standard by which the evidence will be judged at the conclusion of the trial, when all of it is in. It is not the test at this stage. To apply it now would be to decide the case before hearing the defence, which is precisely what Section 306 does not contemplate.
Determination
37. Taking the Prosecution evidence at its highest, as I am bound to do, there is evidence that the 2nd Accused came to the deceased's homestead in the company of the man who killed him; that he had a possible motive arising from a family land dispute in which the deceased was an active protagonist; that the killer was his friend and habitual visitor; and that immediately after the fatal blow the killer called out to him to report that the job was done. Whether that evidence will withstand scrutiny is another matter altogether. But it is not a mere scintilla, and it is not worthless or discredited evidence. It is evidence upon which a reasonable tribunal, properly directing its mind to the law and the evidence, could convict if no explanation were offered.
38. I therefore find that a prima facie case has been made out against the 2nd Accused person and that he has a case to answer.
39. Two observations should be recorded for the assistance of the parties as the trial proceeds, neither of which forms part of my finding.
40. The first concerns the offence of which the 2nd Accused may ultimately be convicted. The State accepted a plea of manslaughter from the man who actually wielded the knife. Where liability is derivative and rests on a common intention under Section 21, questions may arise at the conclusion of the trial as to the offence for which this accused can properly be held liable. I note that the alternative verdict of manslaughter remains available under Section179 of the Criminal Procedure Code. I say no more, save that Counsel should be prepared to address the point in their closing submissions.
41. The second concerns PW1. She was twelve years of age at the date of the incident. If she was a child of tender years when she testified, the procedural safeguards attending the reception of such evidence, including a voire dire where required, had to be observed: Kibageny arap Kolil v R [1959] EA 92; Johnson Muiruri v Republic [1983] KLR 445. I shall satisfy myself from the record on this point before judgment, and Counsel may address me on it if either wishes to do so.
42. Finally, I remind myself and the parties that this finding decides nothing about guilt. The legal burden of proving every element of the charge beyond reasonable doubt remains, from first to last, on the Prosecution. It never shifts. The 2nd Accused is presumed innocent under Article 50(2)(a) of the Constitution, he is entitled under Article 50(2)(i) to remain silent, and no adverse inference may be drawn against him if he elects to do so.
Orders
43. Accordingly, I make the following orders:
a. The 2nd Accused person, Samuel Kwendo, is found to have a case to answer on the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code.
b. He is hereby placed on his defence pursuant to Section 306(2) of the
Criminal Procedure Code, and is informed of his right to give evidence on
oath and be cross-examined, or to make an unsworn statement from the dock, and in either case to call witnesses; and of his right to remain silent, in which event no adverse inference shall be drawn against him.
c. The 2nd Accused shall, through Counsel, elect the manner in which he will present his defence, and shall supply the Court and the Prosecution with the names of any witnesses he intends to call.
It is so ordered.
DATED, SIGNED AND DELIVERED AT VIHIGA THIS 11TH DAY OF SEPTEMBER 2026.
1. The 1st and 2nd Accused persons were jointly charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap. 63). The particulars are that on the 28th day of February 2024, at Ebwali Sub-Location within Luanda Sub-County in Vihiga County, they jointly with others not before the Court murdered Wilson Obwoche Omutakha.
2. On 2nd April 2025 the 1st Accused person, Titus Omulimi Shaban alias Kibisu, entered into a Plea Bargain Agreement dated 29th January 2025. Upon the agreement being adopted, this Court convicted him of the offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code and sentenced him. The trial thereafter proceeded against the 2nd Accused person alone.
3. The Prosecution called five witnesses and closed its case. Both parties have filed written submissions on whether the 2nd Accused has a case to answer: the Prosecution's submissions are dated and filed on 8th May 2026, and the 2nd Accused's submissions, drawn by Ms. Nereah Rabote, are dated 11th May 2026. This is the ruling on that question.
4. Two matters of form should be disposed of at the outset. The Prosecution's submissions are headed "High Court Criminal Case No. E00 of 2026"; the correct number is E006 of 2024. They also pray that the accused be put on his defence "pursuant to Section 211(1) of the Criminal Procedure Code." Section 211 governs trials before Subordinate Courts. The provision applicable to a trial before this Court is Section 306 of the Criminal Procedure Code (Cap. 75). Nothing turns on either slip and I say no more about them.
The Prosecution Case
5. PW1, Mildred Anono, was a pupil aged twelve years at the time of the incident and is the daughter of PW2. Her evidence is that on 28th February 2024 at about 1800 hours she was washing utensils outside the family house while her father was inside and her uncle, the deceased, was washing his cap in the compound. Four persons whom she knew came to the homestead: Sammy (the 2nd Accused), Okello, Kibisu (the 1st Accused) and Matonya. She knew them because Sammy and Okello are brothers and neighbours, while Kibisu and Matonya come from a neighbouring area and habitually visited Sammy.
6. According to the Prosecution, PW1 testified that Kibisu and Matonya entered the homestead while Sammy and Okello left; that shortly thereafter Kibisu removed a knife from a carrier bag he was carrying and stabbed the deceased once on the neck as Matonya tried to restrain him; that the deceased staggered and fell; and that as Kibisu and Matonya ran away, she heard Kibisu shouting to alert Sammy that he had finished the job. PW1 then ran into the house and called her father.
7. PW2, David Ondele Omutaha, came out of the house, found the deceased staggering and falling, and was told by the deceased that he had been stabbed by Kibisu. He saw four persons running from his compound and gave chase with a jembe handle but could not reach them. A carrier bag left at the scene was found to contain a pair of metal pole-climbing shoes, tomatoes, a blue and white jacket, a blue overall marked Jaisham Ltd, pliers and a black cable. He sent PW1 to call his younger brother.
8. PW3, Ernest Olang', arrived, confirmed that the deceased was not breathing, and alerted the area Chief and the Police. Both PW2 and PW3 spoke of a subsisting land dispute in the family. PW2 referred to a parcel of their grandfather Jorum Amakutwa Sirangala said to have been grabbed by Joseck Ochola Kwendo, with proceedings pending at the Vihiga law Courts, and named the deceased as one of those actively pursuing the matter. PW3 referred to threats received from Sammy and his brother Joseck concerning land parcel East Bunyore/Iboona/272 and to Succession Cause No. 158 of 2020.
9. PW4, Dr. Muchana, conducted the post-mortem on 6th March 2024 and produced the report as an exhibit. The deceased had a single deep cut wound on the neck inflicted by a sharp object and no other external injuries. The cause of death was given as internal bleeding secondary to a stab wound following assault.
10. PW5, the Investigating Officer, testified to the scene processing, the recovery of the carrier bag and its contents, the arrest of the 2nd Accused at his home and of the 1st Accused thereafter, and the compilation of the file. He confirmed that the murder weapon was never recovered. He also confirmed that he had recorded a statement from one Simon Emile Omito, a Pastor, who stated that he had been with the 2nd Accused at a fellowship at Mahanga on the material day at around 1800 hours.
The Submissions
11. For the Prosecution, Mr. Leina Davies submitted that the ingredients of murder are the death of a human being, that the death was unlawfully caused, malice aforethought, and the identification of the accused as the person who killed the deceased. She submitted that death is not in dispute and was proved by the post-mortem report; that the unlawful act was proved by PW1's account of the stabbing; and that malice is established from the weapon used, the manner of its use, the part of the body injured and the conduct of the accused, relying on Rex v Govan Pazi s/o Mukurisho (1943) 10 EACA and Hamisi s/o Tarusi (1953) 20 EACA 176. She acknowledged that the case against the 2nd Accused rests squarely on circumstantial evidence and relied on Republic v Kipkering arap Koskei & another (1949) 16 EACA 135.
12. For the 2nd Accused, Ms. Rabote submitted that while the fact and cause of death have been established, the Prosecution has placed no evidence linking her client to the offence, whether by identification or by the doctrine of recent possession. Her central submission is that PW1, the star witness, testified that during the attack the 2nd Accused was not at the scene, and that it was only PW3 and PW5 — witnesses who came to know of events afterwards — who sought to place him there. She further submitted that PW5 confirmed having recorded the statement of Simon Emile Omito, who placed the 2nd Accused elsewhere at about 1800 hours; and that PW1 did not, in her statement to the Police, record anything about the 1st Accused having called out to the 2nd Accused, that this emerged only at the hearing as an afterthought, and that PW5 confirmed he had never been told of any such thing. She relied on Anthony Ndegwa Ngari v Republic [2014] eKLR and prayed that the 2nd Accused be found to have no case to answer.
The Law on a Case to Answer
13. Section 306(1) of the Criminal Procedure Code provides that 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 any arguments which Counsel may desire to submit, record a finding of not guilty. Section 306(2) provides that where the Court considers that there is evidence that the accused committed the offence, it shall inform him of his right to give evidence on oath or to make an unsworn statement and to call witnesses.
14. The classic statement of what constitutes a prima facie case remains that of the Court of Appeal for Eastern Africa in Ramanlal Trambaklal Bhatt v R [1957] EA 332:
"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."
15. Their Lordships went on to say that a prima facie case must at least mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence, could convict if no explanation were offered by the defence. It is equally clear from Bhatt that the Court is not required at this 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 determination can properly be made only after the defence has been heard.
16. The two situations in which a submission of no case to answer will properly succeed were identified in the Practice Note issued by Lord Parker CJ in 1962 and consistently applied in this jurisdiction: first, where there has been no evidence to prove an essential element of the offence charged; and secondly, where the evidence adduced by the Prosecution has been so discredited by cross-examination, or is so manifestly unreliable, that no reasonable tribunal could safely convict upon it. See also Republic v Abdi Ibrahim Owl [2013] eKLR and Ronald Nyaga Kiura v Republic [2018] eKLR.
17. I must therefore neither usurp the function I will discharge at the end of the trial by weighing the evidence conclusively now, nor abdicate my duty by putting the accused on his defence merely because some evidence exists. The question is a focused one: taking the Prosecution evidence at its highest, is there evidence upon which a reasonable tribunal, properly directing itself, could convict?
The Ingredients of Murder
18. For the offence of murder under Section 203 of the Penal Code, the
Prosecution must ultimately establish: (a) the death of the deceased and
its cause; (b) that the death was caused by an unlawful act or omission; (c) that the accused committed that unlawful act; and (d) that he did so with malice aforethought as defined in Section 206 of the Penal Code. See Anthony Ndegwa Ngari v Republic [2014] eKLR, relied on by both Counsels. At this stage I ask, in respect of each ingredient, whether there is evidence, not whether that evidence proves the matter beyond reasonable doubt.
(a) and (b): The fact of death and its unlawful cause
19. These are not in contest and I can deal with them shortly. PW4 produced the post-mortem report establishing that Wilson Obwoche Omutakha is dead and that the cause of death was internal bleeding secondary to a stab wound following assault. The single deep wound to the neck, with no other external injury, is wholly inconsistent with accident or natural causes. Every homicide is presumed unlawful unless it is excused or authorized by law: Gusambizi s/o Wesonga v R (1948) 15 EACA 65. Nothing on this record raises any question of accident, self-defence or lawful excuse in relation to the deceased. The first two ingredients are established.
(c) and (d): Participation and malice aforethought
20. So far as the person who wielded the knife is concerned, there is direct evidence from PW1, an eyewitness, that the 1st Accused removed a knife from a carrier bag and stabbed the deceased once on the neck, and there is a dying declaration to PW2 to the same effect, admissible under Section 33(a) of the Evidence Act. As to malice, the factors identified in Nzuki v Republic [1993] KLR 171 - the nature of the weapon, the manner of its use, the part of the body targeted and the conduct of the assailant before and after - all point one way: a knife brought to the scene concealed in a bag, driven into the neck, in the face of an attempt by a companion to restrain him, followed by immediate flight. There is ample evidence of malice aforethought in relation to the act itself.
21. But the 1st Accused is no longer on trial. The only question before me is whether there is evidence upon which a reasonable tribunal could find that
the 2nd Accused is criminally liable for that killing. That is the issue to which I now turn, and it is the only real issue in this ruling.
The Case Against the 2nd Accused
What is not evidence against him
22. I begin by clearing away three matters which cannot assist the Prosecution, because it is important that the analysis rests only on what is properly before me.
23. First, the conviction of the 1st Accused. He was convicted on his own plea under a negotiated Plea Bargain Agreement. A conviction entered against a co-accused on his own plea is not evidence against anyone else. It is not a judicial determination made after a contest, and the 1st Accused was never called as a witness in this trial, never gave evidence on oath, and was never cross-examined.
24. Secondly, and for the same reason, anything the 1st Accused said in the course of the plea bargain process, in mitigation, or to the Probation Officer is not evidence against the 2nd Accused. I have in mind in particular the passage in the pre-sentence report, recorded in this Court's sentencing ruling of 2nd April 2025, to the effect that the victim's family believed that the 2nd Accused had hired the 1st Accused to commit the crime following an ongoing land dispute. That was a record of what a family believed, placed before the Court for the purpose of sentencing a different man. It is hearsay upon opinion, it was never tested, and it forms no part of the evidence in this trial. I put it entirely out of my mind, and I record that I do so expressly.
25. Thirdly, the contents of the carrier bag. The pole-climbing shoes, overall, pliers and cable were connected, on PW3's evidence, with the 1st Accused, who was said to hold himself out as a Kenya Power employee. Nothing was recovered from the 2nd Accused. Ms. Rabote is right that the doctrine of recent possession has no application to her client, and I did not understand the Prosecution to contend otherwise.
The evidence that does bear on the 2nd Accused
i. Stripped to its essentials, the Prosecution case against the 2nd Accused rests on four strands.
i. PW1's recognition of him as one of four persons who came to the homestead moments before the stabbing; ii. PW1's evidence that, immediately after the stabbing, the 1st Accused shouted to alert him that he had finished the job; iii. The evidence of PW2 and PW3 of a subsisting land dispute between the deceased's branch of the family and that of the 2nd Accused, in which the deceased was among those actively pursuing the claim; and iv. The undisputed association between the 2nd Accused and the 1st Accused, who was his former schoolmate and a habitual visitor to his home.
26. As to (i), this is a case of recognition rather than identification of a stranger. PW1 knew all four men by name; Sammy and Okello were her neighbours, and Kibisu and Matonya were regular visitors to Sammy's home. Recognition of persons well known to a witness is generally more reliable than the identification of strangers: Anjononi & others v Republic [1976–80] 1 KLR 1566. The incident occurred at about 1800 hours in an open compound at a distance from which PW1 was able to observe a knife being drawn from a bag and an attempt by one man to restrain another. Whether visibility was in truth adequate, and whether a child of that age standing where she stood could see and hear all that she describes, are questions I will have to examine with care at the conclusion of the trial. They are not questions I can resolve now.
27. Strand (ii) is, in my judgment, the pivot of the Prosecution case. If PW1 is believed on this point, the shout is not merely evidence that the 2nd Accused was nearby. It is evidence of a report of completion made by the killer to a person who was expecting it. That is capable, if accepted, of founding an inference that the two were acting to a common design. I should add that this piece of evidence is not hearsay. It is not tendered to prove the truth of anything asserted by the 1st Accused; it is tendered as an act - the fact that the utterance was made, at that moment, to that person - from which an inference may be drawn. It is original evidence, and it is admissible.
28. Strand (iii) supplies a possible motive. Motive is not an ingredient of murder and its absence is immaterial where participation is proved, but its presence is a relevant circumstance where the case depends on inference: Section 9 of the Evidence Act. There is evidence from two witnesses of a land dispute in which the deceased was an active protagonist against the 2nd Accused's brother, and of threats emanating from that quarter.
The contradiction relied upon by the defence
29. Ms. Rabote's strongest point is that PW1 placed the 2nd Accused away from the scene at the moment of the attack. She submits that this destroys the Prosecution case. The Prosecution's own summary of PW1's evidence is to the same effect: that Kibisu and Matonya entered the homestead while Sammy and Okello left.
30. I do not accept that this is fatal, and it is important to explain why. Liability under Section 21 of the Penal Code does not depend upon presence at the moment the fatal blow is struck. That Section provides that where two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the Prosecution of that purpose an offence is committed of such a nature that its commission was a probable consequence of the Prosecution of that purpose, each of them is deemed to have committed the offence. The elements were summarized in Dickson Mwangi Munene & Another v Republic [2014] eKLR, and it is settled that a common intention need not rest on a pre-arranged plan but may be inferred from the conduct of the parties: Dracaku s/o Afia & Another v R [1963] EA 363. What must be shown is that the accused shared with the other perpetrators a common intention to pursue a specific unlawful purpose which led to the commission of the offence charged: Solomon Mungai v Republic [1965] EA 363.
31. On the Prosecution's version, the two accounts are not in conflict at all; they cohere. A man who arrives with the assailant, withdraws a few paces before the blow is struck, and is then called to and told that the job is finished, is not thereby exculpated. On one reading of that evidence his withdrawal is itself a circumstance from which a tribunal might infer design rather than innocence. I express no view on whether that is the correct reading. I say only that it is a reading reasonably open on the evidence, and that is enough at this stage.
32. Ms. Rabote's second point that the shout appears nowhere in PW1's statement to the Police, and that PW5 was never told of it is a substantial one and I do not underestimate it. Evidence which surfaces for the first time from the witness box, on the very issue on which the case turns, invites the closest scrutiny, and the Prosecution should be under no illusion that it will escape that scrutiny at the end of this trial. But an omission from a witness statement goes to the credit and weight of the evidence, not to its admissibility. Under Bhatt the Court does not finally determine credit at half-time. This is not a case of evidence so discredited in cross-examination, or so manifestly unreliable on its face, that no reasonable tribunal could act on it within the second limb of the Practice Note.
The alibi
33. The 2nd Accused's answer, foreshadowed in his cautionary statement and in the evidence of PW5, is an alibi: that he spent the afternoon at a fellowship at Mahanga presided over by Pastor Simon Emile Omito, left at about 1830 hours and reached home at about 1900 hours, learning of the incident only on arrival.
34. An accused who raises an alibi assumes no burden of proving it; the burden remains throughout on the Prosecution to displace it and to place the accused at the scene: Karanja v Republic [1983] KLR 501; Wang'ombe v Republic [1976] KLR 173. If the alibi is made good it will be a complete answer, and the fact that it draws support from material gathered by the
Prosecution itself gives it a strength which the Court will have to confront directly. But an alibi is by its nature a matter to be raised and considered at the defence stage, and it falls to be weighed against the whole of the evidence once that evidence is complete. It cannot be determined on submissions at half-time.
Circumstantial evidence
35. The Prosecution rightly accepts that its case against the 2nd Accused is circumstantial. Where a conviction is to rest on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt: Republic v Kipkering arap Koskei & Another (1949) 16 EACA 135; Abanga alias Onyango v Republic, Criminal Appeal No. 32 of 1990; Sawe v Republic [2003] KLR 364.
36. That, however, is the standard by which the evidence will be judged at the conclusion of the trial, when all of it is in. It is not the test at this stage. To apply it now would be to decide the case before hearing the defence, which is precisely what Section 306 does not contemplate.
Determination
37. Taking the Prosecution evidence at its highest, as I am bound to do, there is evidence that the 2nd Accused came to the deceased's homestead in the company of the man who killed him; that he had a possible motive arising from a family land dispute in which the deceased was an active protagonist; that the killer was his friend and habitual visitor; and that immediately after the fatal blow the killer called out to him to report that the job was done. Whether that evidence will withstand scrutiny is another matter altogether. But it is not a mere scintilla, and it is not worthless or discredited evidence. It is evidence upon which a reasonable tribunal, properly directing its mind to the law and the evidence, could convict if no explanation were offered.
38. I therefore find that a prima facie case has been made out against the 2nd Accused person and that he has a case to answer.
39. Two observations should be recorded for the assistance of the parties as the trial proceeds, neither of which forms part of my finding.
40. The first concerns the offence of which the 2nd Accused may ultimately be convicted. The State accepted a plea of manslaughter from the man who actually wielded the knife. Where liability is derivative and rests on a common intention under Section 21, questions may arise at the conclusion of the trial as to the offence for which this accused can properly be held liable. I note that the alternative verdict of manslaughter remains available under Section179 of the Criminal Procedure Code. I say no more, save that Counsel should be prepared to address the point in their closing submissions.
41. The second concerns PW1. She was twelve years of age at the date of the incident. If she was a child of tender years when she testified, the procedural safeguards attending the reception of such evidence, including a voire dire where required, had to be observed: Kibageny arap Kolil v R [1959] EA 92; Johnson Muiruri v Republic [1983] KLR 445. I shall satisfy myself from the record on this point before judgment, and Counsel may address me on it if either wishes to do so.
42. Finally, I remind myself and the parties that this finding decides nothing about guilt. The legal burden of proving every element of the charge beyond reasonable doubt remains, from first to last, on the Prosecution. It never shifts. The 2nd Accused is presumed innocent under Article 50(2)(a) of the Constitution, he is entitled under Article 50(2)(i) to remain silent, and no adverse inference may be drawn against him if he elects to do so.
Orders
43. Accordingly, I make the following orders:
a. The 2nd Accused person, Samuel Kwendo, is found to have a case to answer on the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code.
b. He is hereby placed on his defence pursuant to Section 306(2) of the
Criminal Procedure Code, and is informed of his right to give evidence on
oath and be cross-examined, or to make an unsworn statement from the dock, and in either case to call witnesses; and of his right to remain silent, in which event no adverse inference shall be drawn against him.
c. The 2nd Accused shall, through Counsel, elect the manner in which he will present his defence, and shall supply the Court and the Prosecution with the names of any witnesses he intends to call.
It is so ordered.
DATED, SIGNED AND DELIVERED AT VIHIGA THIS 11TH DAY OF SEPTEMBER 2026.