1. The two accused persons are charged with murder contrary to section 203 as read with section 204 of the Penal Code .
2. The Director of Public Prosecutions informs the High Court that on the 26 th June 2022 at Makina Akiba at Kibera within Kibera Sub-County, Nairobi County, jointly with others not before the court, they murdered Felix Mutuma (hereafter the deceased ).
3. The prosecution presented seven witnesses. I am now called upon to determine whether there is sufficient evidence that calls for a rebuttal from the accused.
4. The republic lodged submissions dated 12 th June 2026. Learned counsel for the accused opted not to lodge submissions at this stage.
5. According to the learned Principal Prosecution Counsel, Ms. M. M. Kigira , there is direct and strong circumstantial evidence linking the accused to the murder. She relied on John Mutuma Gatobu v Republic [2015] KECA 101 (KLR), Bhatt v Republic [1957] E.A. 332 and Nyaga Kiura v Republic [2018] eKLR.
6. The key evidence went as follows: Paul Gakau Njenga (PW2) was woken up by some noises outside his house. He found his door locked from outside but a neighbor unlocked it. When he first peeped outside, he claimed that he saw the 1 st accused and two others entering the deceased’s house. PW2 picked up a fimbo and attacked the assailants. He said that two of those were the 1 st and 2 nd accused and that he “saw them clearly”.
7. When the deceased’s wife Scholar Ngimat (PW3) and Jaman Kioko (PW4) saw the deceased at the scene, he had stab wounds or injuries on the chest, neck and the head but still had a pulse. He was taken to Mbagathi Hospital where he succumbed to his injuries.
8. PW3 identified the body for postmortem purposes. The autopsy was carried out by Dr Simon Omuok (PW1) who formed the opinion that the cause of death was “excess haemorrhage from heart injury as a result of sharp penetrating trauma”.
9. According to Police Constable Tony Gitonga (PW5), at around 01.00 hours on the material night, he got a call from a member of community policing, Ali Kassim Kibe notifying him that the public had arrested two suspects. It was about 200 metres from the scene of the attack. PW5 and his colleague re-arrested the suspects and booked them at Kibera Police Station.
10. It bears repeating that the accused are still deemed innocent at this stage. Furthermore, the inquiry at this juncture is merely to establish if a prima facie case has been made out requiring a rebuttal from them.
11. Upon appraisal of that evidence; and, well guided by Bhatt v Republic [1957] E.A. 332 and R v Kipkering arap Koske & another 16 EACA 135 (1949), I find that the prosecution has established a prima facie case.
12. Accordingly, under the provisions of section 306 (2) of the Criminal Procedure Code , I hereby place both accused persons on their defence.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI this 30 th day of June 2026.
Ruling read virtually on Microsoft Teams in the presence of-
Accused.
Ms. Kigira & Ms. Okusimba for the republic instructed by the Office of the Director of Public Prosecutions.
Mr. Ibrahim for both accused.
Mr. E. Ombuna, Court Assistant.
2. The Director of Public Prosecutions informs the High Court that on the 26 th June 2022 at Makina Akiba at Kibera within Kibera Sub-County, Nairobi County, jointly with others not before the court, they murdered Felix Mutuma (hereafter the deceased ).
3. The prosecution presented seven witnesses. I am now called upon to determine whether there is sufficient evidence that calls for a rebuttal from the accused.
4. The republic lodged submissions dated 12 th June 2026. Learned counsel for the accused opted not to lodge submissions at this stage.
5. According to the learned Principal Prosecution Counsel, Ms. M. M. Kigira , there is direct and strong circumstantial evidence linking the accused to the murder. She relied on John Mutuma Gatobu v Republic [2015] KECA 101 (KLR), Bhatt v Republic [1957] E.A. 332 and Nyaga Kiura v Republic [2018] eKLR.
6. The key evidence went as follows: Paul Gakau Njenga (PW2) was woken up by some noises outside his house. He found his door locked from outside but a neighbor unlocked it. When he first peeped outside, he claimed that he saw the 1 st accused and two others entering the deceased’s house. PW2 picked up a fimbo and attacked the assailants. He said that two of those were the 1 st and 2 nd accused and that he “saw them clearly”.
7. When the deceased’s wife Scholar Ngimat (PW3) and Jaman Kioko (PW4) saw the deceased at the scene, he had stab wounds or injuries on the chest, neck and the head but still had a pulse. He was taken to Mbagathi Hospital where he succumbed to his injuries.
8. PW3 identified the body for postmortem purposes. The autopsy was carried out by Dr Simon Omuok (PW1) who formed the opinion that the cause of death was “excess haemorrhage from heart injury as a result of sharp penetrating trauma”.
9. According to Police Constable Tony Gitonga (PW5), at around 01.00 hours on the material night, he got a call from a member of community policing, Ali Kassim Kibe notifying him that the public had arrested two suspects. It was about 200 metres from the scene of the attack. PW5 and his colleague re-arrested the suspects and booked them at Kibera Police Station.
10. It bears repeating that the accused are still deemed innocent at this stage. Furthermore, the inquiry at this juncture is merely to establish if a prima facie case has been made out requiring a rebuttal from them.
11. Upon appraisal of that evidence; and, well guided by Bhatt v Republic [1957] E.A. 332 and R v Kipkering arap Koske & another 16 EACA 135 (1949), I find that the prosecution has established a prima facie case.
12. Accordingly, under the provisions of section 306 (2) of the Criminal Procedure Code , I hereby place both accused persons on their defence.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI this 30 th day of June 2026.
Ruling read virtually on Microsoft Teams in the presence of-
Accused.
Ms. Kigira & Ms. Okusimba for the republic instructed by the Office of the Director of Public Prosecutions.
Mr. Ibrahim for both accused.
Mr. E. Ombuna, Court Assistant.