Preliminaries
1. The accused was charged with the offence of murder contrary to section 203 read with section 204 of the Penal Code.
2. The particulars of the offence, as per the information, are that on 16 December 2024 at Swalihina Area, Nyali SubLocation within Mombasa County, jointly with others not before the Court, he murdered Salim Said Saidi alias “ZOLA”.
3. The accused pleaded not guilty. The State called six (6) witnesses and closed its case on 18 February 2026. A ruling on a submission of a case to answer is pending. The Court reiterates that the burden of proof rests with the prosecution and that, at this stage, it must determine whether the prosecution has established a prima facie case to require the accused to enter his defence.
Analysis and Determination
1. The Court has considered the evidence adduced by the prosecution. The issue for determination is whether that evidence is sufficient to warrant the accused being called upon to plead his defence as required under Article 50 of the Constitution and section 306 of the Criminal Procedure code. The applicable threshold is that of a prima facie case, as consistently recognised in judicial decisions.
2. Section 306 of the Criminal Procedure Code provides: “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.”
In Republic v Abdi Ibrahim Owl [2013] eKLR, a prima facie case was defined thus: “‘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’. To digest this further, in simple terms, it means the establishment of a rebuttable presumption that an accused person is guilty of the offence he/she is charged with.”
1. G. Dulu J. (retired), in Republic v Joseph Shitandi & Another (2014) eKLR, stated: “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.”
2. The Court also relies on May v O’Sullivan [1955] 92 CLR 654, where it was held: “When at the close of the case for the prosecution a submission is made that there is no case to answer, the question to be decided is not whether on the evidence, as it stands, the defendant ought to be convicted, but whether on the evidence, as it stands, he could lawfully be convicted. This is really a question of law.”
3. Further, in Festo Wandera Mukando v Republic [1980] KLR 103, the Court observed: “…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.”
Conclusion and Disposition
1. Having considered the evidence of the six (6) witnesses, and without pronouncing on the merits of their testimony, the Court is satisfied that a prima facie case has been established against the accused to warrant him being called upon to answer.
2. Accordingly, the Court finds that Swalleh Ali Hassan Murunga has a case to answer and is placed on his defence. Pursuant to this finding, his rights under Article 50(2)(i), (k) and (l) of the Constitution, as read with section 306(2) of the Criminal Procedure Code, are guaranteed and explained to the accused in the presence of his legal representative and in a language the accused understands.
3. It is so ordered.
Dated, signed and delivered in Open Court/online through MS TEAMS, this …5th …… day of ……March… 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of:
The accused person and his advocate Mr Mwawasi
Mr. Sirima For the State
Bebora : Court Assistant
Defence hearing on 16/04/ 2026
1. The accused was charged with the offence of murder contrary to section 203 read with section 204 of the Penal Code.
2. The particulars of the offence, as per the information, are that on 16 December 2024 at Swalihina Area, Nyali SubLocation within Mombasa County, jointly with others not before the Court, he murdered Salim Said Saidi alias “ZOLA”.
3. The accused pleaded not guilty. The State called six (6) witnesses and closed its case on 18 February 2026. A ruling on a submission of a case to answer is pending. The Court reiterates that the burden of proof rests with the prosecution and that, at this stage, it must determine whether the prosecution has established a prima facie case to require the accused to enter his defence.
Analysis and Determination
1. The Court has considered the evidence adduced by the prosecution. The issue for determination is whether that evidence is sufficient to warrant the accused being called upon to plead his defence as required under Article 50 of the Constitution and section 306 of the Criminal Procedure code. The applicable threshold is that of a prima facie case, as consistently recognised in judicial decisions.
2. Section 306 of the Criminal Procedure Code provides: “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.”
In Republic v Abdi Ibrahim Owl [2013] eKLR, a prima facie case was defined thus: “‘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’. To digest this further, in simple terms, it means the establishment of a rebuttable presumption that an accused person is guilty of the offence he/she is charged with.”
1. G. Dulu J. (retired), in Republic v Joseph Shitandi & Another (2014) eKLR, stated: “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.”
2. The Court also relies on May v O’Sullivan [1955] 92 CLR 654, where it was held: “When at the close of the case for the prosecution a submission is made that there is no case to answer, the question to be decided is not whether on the evidence, as it stands, the defendant ought to be convicted, but whether on the evidence, as it stands, he could lawfully be convicted. This is really a question of law.”
3. Further, in Festo Wandera Mukando v Republic [1980] KLR 103, the Court observed: “…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.”
Conclusion and Disposition
1. Having considered the evidence of the six (6) witnesses, and without pronouncing on the merits of their testimony, the Court is satisfied that a prima facie case has been established against the accused to warrant him being called upon to answer.
2. Accordingly, the Court finds that Swalleh Ali Hassan Murunga has a case to answer and is placed on his defence. Pursuant to this finding, his rights under Article 50(2)(i), (k) and (l) of the Constitution, as read with section 306(2) of the Criminal Procedure Code, are guaranteed and explained to the accused in the presence of his legal representative and in a language the accused understands.
3. It is so ordered.
Dated, signed and delivered in Open Court/online through MS TEAMS, this …5th …… day of ……March… 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of:
The accused person and his advocate Mr Mwawasi
Mr. Sirima For the State
Bebora : Court Assistant
Defence hearing on 16/04/ 2026