1. Amos Nyakundi Ondieki alias Sonko, Makworo Ogeto, Peter Angwenyi Gwanga, Brian Mecha Nyakundi, Ronald Ombati Onyonka, Justine Morara, Hesbon Ong’ondi Gichana, Nelson Chogoro Tumbo, Justine Akiya Tumbo, Henry Amwoma Matoke, Evans Ogeto Okari, Josphine Moraa Nyankienya, Roselyne Nyancham Omweri alias Mellen, Joseph Abuga Mironga, Vincent George Maseme and Henry Mbambane Angwenyi alias Ototo are charged with four counts of murder contrary to section 203, as read with section 204 of the Penal Code.
2. In count one, the particulars of the offence are that on the 17th day of October 2021, at Mbanda sublocation, in Marani Sub County within Kisii County, jointly with others not before the court, murdered Sindege Mayaka.
3. In count two, the particulars of the offence are that on the 17th day of October 2021, at Mbanda sublocation, in Marani Sub County within Kisii County, jointly with others not before the court, murdered Rael Sigara Onkware.
4. In count three, the particulars of the offence are that on the 17th day of October 2021, at Mbanda sublocation, in Marani Sub County within Kisii County, jointly with others not before the court, murdered Agnes Moraa.
5. In count four, the particulars of the offence are that on the 17th day of October 2021, at Mbanda sublocation, in Marani Sub County within Kisii County, jointly with others not before the court, murdered Jemimah Nyangate Minga.
6. When the prosecution closed its case, I was urged to find that no prima facie case was established in respect of some accused persons. The trial and counsel watching the brief for the victim’s family contended that they had made a case warranting the accused\'s placement on their defence.
7. In the Black’s Law Dictionary, 10th Edition, prima facie case is defined as follows:
Prima facie case. (1805) I. The establishment of a legally required rebuttable presumption. 2. A party\'s production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party\'s favor.
8. The Court of Appeal in the case of Ramanlal Trambaklal Bhatt vs R [1957] E.A 332 at 334 and 335 defined prima facie case as follows:
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.
9. In the case of Ronald Nyaga Kiura vs Republic [2018] eKLR, it was held:
It is important to note that at the close of prosecution, what is required in law at this stage is for the trial court to satisfy itself that a prima facie has been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of Section 211 of the Criminal Procedure Code. A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person. This is well illustrated in the cited Court of Appeal case of RAMANLAL BHAT -VS- REPUBLIC [1957] EA 332. At that stage of the proceedings, the trial court does not concern itself with the standard of proof required to convict, which is normally beyond reasonable doubt. The weight of the evidence, however, must be such that it is sufficient for the trial court to place the accused to his defence. [Emphasis added]
10. The Constitution of Kenya provides in Article 50 (2) (i) as follows:
(2) Every accused person has the right to a fair trial, which includes the right—
(i) to remain silent and not to testify during the proceedings;
In the instant case, I find that the prosecution has established a prima facie case against each accused. I accordingly place each on defence under section 306 (2) of the Criminal Procedure Code.
Delivered and signed at Kisii on this 11th day of October 2024
2. In count one, the particulars of the offence are that on the 17th day of October 2021, at Mbanda sublocation, in Marani Sub County within Kisii County, jointly with others not before the court, murdered Sindege Mayaka.
3. In count two, the particulars of the offence are that on the 17th day of October 2021, at Mbanda sublocation, in Marani Sub County within Kisii County, jointly with others not before the court, murdered Rael Sigara Onkware.
4. In count three, the particulars of the offence are that on the 17th day of October 2021, at Mbanda sublocation, in Marani Sub County within Kisii County, jointly with others not before the court, murdered Agnes Moraa.
5. In count four, the particulars of the offence are that on the 17th day of October 2021, at Mbanda sublocation, in Marani Sub County within Kisii County, jointly with others not before the court, murdered Jemimah Nyangate Minga.
6. When the prosecution closed its case, I was urged to find that no prima facie case was established in respect of some accused persons. The trial and counsel watching the brief for the victim’s family contended that they had made a case warranting the accused\'s placement on their defence.
7. In the Black’s Law Dictionary, 10th Edition, prima facie case is defined as follows:
Prima facie case. (1805) I. The establishment of a legally required rebuttable presumption. 2. A party\'s production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party\'s favor.
8. The Court of Appeal in the case of Ramanlal Trambaklal Bhatt vs R [1957] E.A 332 at 334 and 335 defined prima facie case as follows:
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.
9. In the case of Ronald Nyaga Kiura vs Republic [2018] eKLR, it was held:
It is important to note that at the close of prosecution, what is required in law at this stage is for the trial court to satisfy itself that a prima facie has been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of Section 211 of the Criminal Procedure Code. A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person. This is well illustrated in the cited Court of Appeal case of RAMANLAL BHAT -VS- REPUBLIC [1957] EA 332. At that stage of the proceedings, the trial court does not concern itself with the standard of proof required to convict, which is normally beyond reasonable doubt. The weight of the evidence, however, must be such that it is sufficient for the trial court to place the accused to his defence. [Emphasis added]
10. The Constitution of Kenya provides in Article 50 (2) (i) as follows:
(2) Every accused person has the right to a fair trial, which includes the right—
(i) to remain silent and not to testify during the proceedings;
In the instant case, I find that the prosecution has established a prima facie case against each accused. I accordingly place each on defence under section 306 (2) of the Criminal Procedure Code.
Delivered and signed at Kisii on this 11th day of October 2024