REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
CRIMINAL CASE NO. E033 OF 2020
REPUBLIC………………………………………. RESPONDENT/ODPP
VERSUS
ALEXANDER MASILA KASEE…………….APPLICANT/ACCUSED
RULING
1. The accused is charged with murder contrary to Section 203 as read with Section 204 of the Penal Code vide information dated 30/11/2020. The particulars are that on the night of 16 and morning of 17th day of November 2020 at unknown time at Mazeras Trading Center at Ngakunu Village Unyaa Sub-Location Kitui Central Sub-County within Kitui County, murdered one Corozon Atieno Obonyo. The accused person denied the charge.
2. A plea of not guilty was entered and the prosecution called witnesses in their case. The brief facts of the case are that the accused was working for the deceased as a bar waiter at her bar at Mazeras Centre. On the material day, the accused informed his father that Carol was dead. The matter was reported to the Chief but he did not go to the scene. Police were also informed. The body was taken to the mortuary at Kitui Hospital. The accused informed the landlord of deceased (PW2) that the deceased had said she was not feeling well. After the body was taken to the mortuary, a police officer went to the mortuary to view the body and the appearance of the body raised eyebrows. The neck was loose and there was a cut on one of the eyes.
3. A postmortem was performed on the body of the deceased. The Doctor Calvin Mandela Achieng formed the opinion that the cause of death was Asphyxia due to dislocation of cervical vertebra column (Axis/Atlas) with right frontal head deep cut hemorrhage.
4. The police made inquiries and found that the accused and deceased were living in the same room as lovers. The deceased had closed the club on the material night and went to her room. Later the accused called neighbors and told them that Carlo was dead. The accused insisted that she was okay until she said she felt unwell and he realized she was dead.
5. Police conducted investigations and found that the accused was responsible for her death as he had insisted that she had died of natural causes but the postmortem revealed that she was strangled and had a fresh injury on the face. The accused was then charged. I have considered all the evidence adduced. 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.
(2)When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each such accused person of his right to address the court, either personally or by his advocate (if any), to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether it is intended to call any witnesses as to fact other than the accused person himself; and upon being informed thereof, the judge shall record the fact.
(3)If the accused person says that he does not intend to give evidence or make an unsworn statement, or to adduce evidence, then the advocate for the prosecution may sum up the case against the accused person; but if the accused person says that he intends to give evidence or make an unsworn statement, or to adduce evidence, the court shall call upon him to enter upon his defence.”
6. The court is supposed to determine whether a prima facie case has been established by the prosecution to warrant the accused to be put on his defense. A prima facie case is 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 defense. This was so stated in the case of Ramanlal Trambakhal Bhatt -vs- Republic (1957) EA 332.
7. Where the court is of the view that a prima facie case has been established, it is advisable that the court should not give reasons for its finding as that would prejudice the defense and be tantamount to reaching a finding without giving the accused an opportunity to be heard.
8. In determining whether the accused has a case to answer the court should not give reasons which tend to show that the court has made up its’ mind before hearing the defense of the accused. The accused, it should be remembered, has a right to be heard before the final determination of the case see Article 50 (2)(k)of the Constitution of Kenya 2010 which gives an accused person the right to adduce and challenge evidence. That is why the court should desist from giving reasons as the accused is likely to be prejudiced.
9. I have considered the prosecution case as adduced by the five witnesses. I come to the conclusion that based on the evidence, the prosecution has made out a prima facie case to warrant the accused to be placed on his defense as charged.
Dated, signed and delivered at Kitui this 31st day of March 2026
HON. LADY JUSTICE L. GITARI
JUDGE
IN THE HIGH COURT OF KENYA AT KITUI
CRIMINAL CASE NO. E033 OF 2020
REPUBLIC………………………………………. RESPONDENT/ODPP
VERSUS
ALEXANDER MASILA KASEE…………….APPLICANT/ACCUSED
RULING
1. The accused is charged with murder contrary to Section 203 as read with Section 204 of the Penal Code vide information dated 30/11/2020. The particulars are that on the night of 16 and morning of 17th day of November 2020 at unknown time at Mazeras Trading Center at Ngakunu Village Unyaa Sub-Location Kitui Central Sub-County within Kitui County, murdered one Corozon Atieno Obonyo. The accused person denied the charge.
2. A plea of not guilty was entered and the prosecution called witnesses in their case. The brief facts of the case are that the accused was working for the deceased as a bar waiter at her bar at Mazeras Centre. On the material day, the accused informed his father that Carol was dead. The matter was reported to the Chief but he did not go to the scene. Police were also informed. The body was taken to the mortuary at Kitui Hospital. The accused informed the landlord of deceased (PW2) that the deceased had said she was not feeling well. After the body was taken to the mortuary, a police officer went to the mortuary to view the body and the appearance of the body raised eyebrows. The neck was loose and there was a cut on one of the eyes.
3. A postmortem was performed on the body of the deceased. The Doctor Calvin Mandela Achieng formed the opinion that the cause of death was Asphyxia due to dislocation of cervical vertebra column (Axis/Atlas) with right frontal head deep cut hemorrhage.
4. The police made inquiries and found that the accused and deceased were living in the same room as lovers. The deceased had closed the club on the material night and went to her room. Later the accused called neighbors and told them that Carlo was dead. The accused insisted that she was okay until she said she felt unwell and he realized she was dead.
5. Police conducted investigations and found that the accused was responsible for her death as he had insisted that she had died of natural causes but the postmortem revealed that she was strangled and had a fresh injury on the face. The accused was then charged. I have considered all the evidence adduced. 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.
(2)When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each such accused person of his right to address the court, either personally or by his advocate (if any), to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether it is intended to call any witnesses as to fact other than the accused person himself; and upon being informed thereof, the judge shall record the fact.
(3)If the accused person says that he does not intend to give evidence or make an unsworn statement, or to adduce evidence, then the advocate for the prosecution may sum up the case against the accused person; but if the accused person says that he intends to give evidence or make an unsworn statement, or to adduce evidence, the court shall call upon him to enter upon his defence.”
6. The court is supposed to determine whether a prima facie case has been established by the prosecution to warrant the accused to be put on his defense. A prima facie case is 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 defense. This was so stated in the case of Ramanlal Trambakhal Bhatt -vs- Republic (1957) EA 332.
7. Where the court is of the view that a prima facie case has been established, it is advisable that the court should not give reasons for its finding as that would prejudice the defense and be tantamount to reaching a finding without giving the accused an opportunity to be heard.
8. In determining whether the accused has a case to answer the court should not give reasons which tend to show that the court has made up its’ mind before hearing the defense of the accused. The accused, it should be remembered, has a right to be heard before the final determination of the case see Article 50 (2)(k)of the Constitution of Kenya 2010 which gives an accused person the right to adduce and challenge evidence. That is why the court should desist from giving reasons as the accused is likely to be prejudiced.
9. I have considered the prosecution case as adduced by the five witnesses. I come to the conclusion that based on the evidence, the prosecution has made out a prima facie case to warrant the accused to be placed on his defense as charged.
Dated, signed and delivered at Kitui this 31st day of March 2026
HON. LADY JUSTICE L. GITARI
JUDGE