REPUBLIC OF KENYA
IN THE HIGH COURT AT VIHIGA
CRIMINAL CASE NO E013 OF 2023
REPUBLIC……………………………………………………………….PROSECUTION
VERSUS
DICKSON MUNALA NJEKA…………………………………………..1ST ACCUSED
SYPROSE CHRISTINE OMONDI…………………………………….2ND ACCUSED
IBRA AMOS……………………………………………………………….3RD ACCUSED
ZABLON BULILO………………………………………………………..4TH ACCUSED
Coram:
Before Justice R. Nyakundi
M/s Leina for the State
Mr. Lugadiru Advocate for the 1st Accused
M/s Rabote Advocate for the 4th Accused
RULING
1. The Accused persons herein were charged with the offence of murder
contrary to section 203 as read with section 204 of the Penal Code. The
particulars of the offence were that Dickson Munala Njeka, Syprose
Christine Omondi, Ibra Amos and Zablon Bulilo alias Aguti on the 3rd day
of July 2023 at Ebuyalu Village, Embali Sub-location, Ipali location in
Emuhaya Sub-County within Vihiga County, jointly with others not before
court murdered Ibrahim Ondeko.
2. The plea of not guilty was entered against each of the Accused persons.
The lead prosecution counsel in these proceedings was Mr. Leina for the
state whereas the 1st and 4th Accused persons were under the
representation of Learned counsel Mr. Lugadiru and M/s Rabote
respectively.
3. This matter was partly heard by Kamau J. Nolle prosequi was entered
against the 2nd Accused herein Syprose Christine Omondi and the 3rd
Accused person herein Ibra Amos on 10th July 2024 according to Section
82(1) of the Criminal Procedure Code Cap 75 Laws of Kenya. The
Prosecution, thus, treated them as its witnesses. The matter herein,
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therefore, proceeded for trial as against the 1st and 4th Accused persons
only.
4. The prosecution marshalled 7 witnesses who gave evidence to establish
the ingredients of the offence of murder contrary to section 203 as read
with section 204 of the Penal code.
Prosecution Case Summary
5. PW1 - Cynthia Chepkorir Kiplagat, testified that she was a 23-year-old
student from Kitale and that the deceased, Ibrahim Ondeko, was her
friend and they had planned to live together. She testified that on 3rd July
2023 between 7.00 p.m. and 8.00 p.m., she was at the deceased’s shop at
Ebuyangu. The deceased had briefly gone to his home at Esibuye and later
returned, after which they talked and continued selling goods until about
8.00 p.m. when they closed the shop and proceeded to prepare dinner in
the house situated behind the shop. PW1 testified that while it was raining
heavily, they heard the door being pushed open and two thieves entered
the house. She stated that the electricity lights were on and the attackers
ordered them to keep quiet or they would “finish” them. PW1 testified that
one attacker cut her with a panga on her left hand while the other
assaulted her using rungus. She stated that the attackers had worn
marvins and jackets and that she did not know them. She further testified
that the deceased was on the bed as she quickly opened the shop door
and escaped towards a maize plantation while the attackers turned to the
deceased. PW1 further testified that she later proceeded to the deceased’s
brother Patrick’s shop at Ebuyangu but did not get him despite knocking.
She stated that she found a police vehicle outside the shop and informed
the driver that they had been attacked, whereupon they proceeded to the
police station before returning with police officers to the deceased’s shop.
PW1 testified that upon entering the shop, the police found the deceased
already killed and lying outside the house, with clothes scattered all over.
She stated that the attackers had stolen sugar, rice and bags containing
clothes. She further testified that the deceased’s family members,
including Patrick and his wife, later arrived at the scene together with DCI
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HCCRC NO E013 OF 2023
officers, after which the deceased’s body was taken to hospital. PW1 stated
that neighbours later informed Patrick that some clothes belonging to her,
the deceased and a child had been recovered from a shamba. She also
testified that the deceased’s Samsung phone and M-pesa phone were later
recovered from other people, although she did not know from whom they
were recovered. PW1 identified the Samsung phone shown to her in court
as the deceased’s phone marked “MFI-1” and confirmed that she later
recorded her statement with the police.
6. PW2 - Patrick Khamati Abnery, testified that he was a businessman
operating a shop at Esibuye and that the deceased, Ibrahim Ondeko, was
his younger brother. He testified that on 3rd July 2023 at about 8.30 p.m.,
while at his shop at Eshibinga, his wife Shamilla Lijodi called and informed
him that his brother Ibrahim had been attacked at the area known as
“Kwa Chief” where he operated his business. PW2 testified that he
immediately closed his shop, drove to the scene and upon arrival found
that the deceased had already died. He stated that the deceased was lying
outside the house near the maize plantation and had sustained cuts on
the shoulder, cheeks and forehead and was bleeding uncontrollably. He
further testified that police officers from Mbale had already arrived at the
scene and that he informed both his mother and father about the incident.
PW2 stated that after his parents arrived, the police removed the body of
the deceased and took it to Coptic Mortuary. He also testified that he found
the deceased’s wife Cynthia crying and injured, having sustained a cut on
her left hand, and that they later took her to Coptic Hospital before
proceeding to Emuhaya Police Station the following day to record
statements. PW2 further testified that police investigations later led to the
arrest of several suspects found in possession of the deceased’s phone,
which was blue in colour. He stated that he did not personally see the
suspects but confirmed that the stolen items included a suitcase
containing clothes, a woofer, money from the day’s business proceeds and
the deceased’s Mpesa phone. He testified that according to Cynthia, the
attackers had also stolen goods from the shop. PW2 identified the blue
Samsung phone shown to him in court as the deceased’s phone, which
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HCCRC NO E013 OF 2023
was marked as “MFI”. He finally testified that the severe cuts inflicted on
the deceased caused excessive bleeding which, in his view, led to the
deceased’s death.
7. PW3 - Ibrahim Amos testified that he was, a casual labourer from Dudi
in Kakamega County. He stated that he did not know the deceased,
Ibrahim Ondego, but came to know Dickson Munala Njeka and Zablon
Bulilo after being implicated in a scandal relating to a Safaricom line. PW3
testified that on 6th September 2023 at about 3.00 p.m., police officers
went to his home and asked him to surrender a Safaricom line which had
been registered in his name. He informed the police that he did not have
the line and led them to Syprose Christine at Yala, who was in possession
of it. He testified that the police arrested both him and Syprose Christine
and took them to Emuhaya Police Station where they were initially
remanded before later being released to become witnesses. PW3 confirmed
that the Safaricom line sought by the police was found with Syprose
Christine.
8. PW4 - Syprose Christine Omondi testified that she was from Yala and
that she knew Dickson Munala Njeka as her customer, Zablon Bulilo
because of the case and Ibra Amos as her boyfriend. She testified that on
6th September 2023 while selling chips and bhajia at Yala, police officers
arrived, arrested her and took her together with Ibra Amos to Dudi Police
Station. PW4 testified that the police questioned her about a phone and
she informed them that she had bought the Samsung phone at Yala from
Dickson Munala Njeka. She then led the police to Dickson Munala Njeka’s
shop where he was arrested before they were all taken to Emuhaya Police
Station. PW4 further testified that the police recovered the phone which
Dickson Munala Njeka had sold to her and identified the Samsung phone
with a blue cover marked as MFI 1 as the phone she had purchased.
9. PW5 – Dr. Dixon Mchana testified that he was the pathologist who
conducted the post mortem to the body of the deceased. PW5 testified with
the following findings on the body of the deceased: Upper airway looks
normal, there is massive haemo-pneumothorax in the right pleural space
with a compound fracture and on the head there was a deep cut wounds
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HCCRC NO E013 OF 2023
on the forehead and right cheek with compound fractures of the skull and
right zygomatic bone. PW5 formed the opinion that the cause of death was
a deep cut wound on the right shoulder with massive hemo-pneumothorax
of the right pleural space. PW4 produced the Post Mortem Report dated
13th July 2023 as PEXh 2.
10. PW6 - No. 59986 CPL Thomas Bii testified that he was a police officer
attached to DCI Emuhaya performing general investigation duties. He
testified that on 3rd July 2023 at about 8.00 p.m., while at his residence,
he received a call from IP Kioko informing him of an incident at Duka Moja
along Ebuyangu-Luanda Road within Ebuyala village. PW6 testified that
he proceeded to the scene together with PC Cheruiyot and found police
officers from Embali Police Station and members of the public already
present. He stated that they found the deceased Ibrahim Ondeko lying
down bleeding with serious injuries on the cheek, forehead and a deep cut
on the right shoulder, while his wife Cynthia Jekorir had sustained a cut
on her left arm below the elbow. PW6 further testified that Cynthia
informed them that after closing the business and while seated in the
sitting room behind the shop, three men armed with pangas forced their
way into the room and warned them not to scream. He testified that the
attackers assaulted them using pangas, forcing Cynthia to escape through
the front door with injuries on her left hand while the deceased remained
behind and was fatally attacked as he attempted to escape through the
rear door. PW6 stated that the attackers stole rice, sugar, clothes, two
mobile phones and an unknown amount of money before fleeing. He
testified that the body was removed to Coptic Hospital Mortuary while
Cynthia was escorted for treatment. PW6 further testified that on 6th
September 2023, together with CI Jacob Mongare and other officers, they
traced Ibra Amos, who led them to Syprose Christine found in possession
of the stolen phone and later to Dickson Munala Njeka from whom the
phone had allegedly been bought. He testified that the suspects were
arrested, investigations completed and the file forwarded to the Director
of Public Prosecutions who recommended that the suspects be charged
before the court.
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HCCRC NO E013 OF 2023
11. The next witness to be summoned by the prosecution was one PW7 – No
239980 Inspector Edgah Kibet. According to his evidence, his main role
was after the fact of the crime when he was asked by the investigating
officer PW6 that there are suspects who had been arrested and been on
the investigation radar with regard to the offence of murder contrary to
section 203 of the Penal Code jointly with others not before court
murdered Ibrahim Ondeko. In the testimony of PW7, on the receipt of the
circumstances of the investigation, it was felt necessary by PW7 to conduct
an identification parade with an objective of positive identification of the
suspects so that they can be placed at the scene of the crime. It was the
testimony of PW7 that he made arrangements for availability of the
members of the parade who numbered 8 whereas the suspects were kept
in a secure private room so that the parade is temper proof in the first
instance. One Zablon Buliro, the 4th Accused was place in the parade of 8
members with basically similar physical features with the suspects.
According to PW7, the suspect was invited from his private room, duly
secured to go to the parade location so that the witness Dickson Munala
could go through and identify the suspect allegedly mentioned in his
statement as one of the persons who were involved in the commission of
the crime. The Witness who is also a police inspector detective informed
the court that the suspect was placed between No 3 and 5; no 2 and 4; 1
and 3 and 4 and 6 and the witness was able to positively identify the
suspect by touching him and gave some description of his appearance as
the characteristics which supported his identification. The identification
parade form was then prepared and formed part of the trial bundle in
support of the prosecution case and admitted so as PEXh 3.
Analysis and Determination
12. Having carefully considered the evidence tendered by the prosecution, the
witness testimonies, the exhibits produced and the submissions by the
learned prosecution counsel, the issue for determination at this stage is;
Whether the prosecution has established a prima facie case against the
accused persons
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13. The Court at this stage is not required to make a definitive finding on the
guilt or innocence of the accused persons, but only to determine whether
there is evidence which, if left uncontroverted, could lead a reasonable
tribunal properly directing itself to convict. Then, the question for this
court to answer is whether under Section 306 of the Criminal Procedure
Code, the prosecution has discharged the burden of proof to meet the
threshold of a prima facie case for the accused person to be place on his
defence. First and foremost, Article 50(2)(a) states as follows: -
“Every accused person has a right to a fair trial which includes the
right to be presumed innocent until the contrary is proved.”
14. The prima facie obligation is vested with the prosecution. The success or
failure of it depends wholly on the evidence presented to prove existence
or non-existence of a fact or facts in issue as derived in Section 107(1), 108
and 109 of the Evidence Act. The term Prima facie is note defined under
Section 306 of the Criminal Procedure Code but the concept appears both
in criminal and civil law. There is a close knitted correlation between the
term prima facie as commonly used and prima facie evidence. In so far as
the definition is concerned, as deducible in Section 306 of the CPC, the
use of prima facie case means the prosecution having presented enough
evidence to proof the elements of the offence in question.
15. The prosecution is entitled to prevail in its case against the accused
person. Speaking plainly, there are two senses in which courts use the
concept of prima facie. The first in the sense of the prosecution producing
sufficient evidence to render a reasonable conclusion in favour of the
allegation asserted in the indictment or the charge sheet. That this what
gives the trial court the power to exercise discretion to allow the criminal
case to proceed to the next stage which is the defence offering an
explanation or an answer to the charge.
16. In the second meaning of the concept, a prima facie case denotes a
situation where the prosecution has adduced sufficient evidence capable
of persuading a properly constituted court or tribunal that the accused
person ought to be called upon to answer the case against him. Such
evidence is considered adequate that, if the accused person chooses to
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HCCRC NO E013 OF 2023
remain silent or fails to rebut it, the court may lawfully find him guilty and
enter a conviction. Nonetheless, the Constitution does not impose any
obligation upon the accused person to testify or tender evidence in
response. Under Article 50(2)(f) of the Constitution, an accused person has
the right to remain silent and not testify during the proceedings, while
Article 50(2)(i) guarantees the right against self-incrimination. However,
where the accused elects to exercise these constitutional rights, he does so
with the understanding that the unrebutted prosecution evidence may
result in an adverse finding against him.
17. It is well established in criminal law that once the prosecution establishes
a prima facie case, the evidential burden shifts to the accused person to
respond to the allegations raised. Even so, this does not in any way transfer
the legal burden of proof from the prosecution. The duty of proving the
guilt of the accused person beyond reasonable doubt remains with the
prosecution throughout the trial, consistent with Article 50(2)(a) of the
Constitution, which guarantees the presumption of innocence until proven
guilty. I presume that is what the drafters of the constitution had in mind
when the rights centered around Art 50(2)(a), (j) and (i) of the same
constitution. In Republic Vs Abdi Ibrahim Owl [2013] eKLR a prima
facie case was defined as follows: -
“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 rebuttal presumption that an accused person is guilty
of the offence he/she is charged with.
18. At the close of the prosecution case, this Court is guided by the case of
Anthony Ndegwa Ngari Vs Republic (2014) eKLR for the case of murder,
the republic is supposed to prove each of the following ingredients beyond
reasonable doubt: -
a. The fact of death
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HCCRC NO E013 OF 2023
b. The fact that the deceased’s death was caused by an unlawful act
or omission.
c. That the accused committed the unlawful act which caused the death
of the deceased; and
d. That the accused had malice aforethought.
19. At the prima facie stage, the court determines whether a reasonable
tribunal, properly directing itself on the law and evidence, could convict if
the prosecution evidence remained uncontroverted. The court is therefore
required to review the evidence and determine whether the prosecution
has established a prima facie case sufficient to warrant the accused being
placed on his defence. This is guided by the constitutional principle that
every accused person is presumed innocent until proved guilty beyond
reasonable doubt under Article 50 of the Constitution. Accordingly, the
court must make a judicial determination on the legal sufficiency of the
prosecution’s case at the close of the prosecution case before calling upon
the accused to enter his defence.
20. Having carefully considered the evidence adduced by the prosecution
witnesses, this Court is satisfied that the fact and cause of death of the
deceased Ibrahim Ondeko has been established. PW1 and PW6 testified
that the deceased was violently attacked by armed assailants at his
residence and shop at Ebuyangu on the night of 3rd July 2023, while PW2
found the deceased already dead with severe cut wounds on the shoulder,
cheeks and forehead. The medical evidence by PW5, the pathologist,
confirmed that the deceased sustained deep cut wounds and massive
haemopneumothorax leading to death. The evidence on record therefore
establishes that the deceased died as a result of unlawful acts inflicted by
other persons.
21. Further, the prosecution placed before the Court evidence linking the
accused persons to the offence through the doctrine of recent possession
and identification evidence. PW1 testified that the attackers stole, among
other items, the deceased’s Samsung phone and Mpesa phone. PW3 and
PW4 testified on how the stolen Samsung phone traced through a
Safaricom line registered in the name of PW3 was recovered from PW4,
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HCCRC NO E013 OF 2023
who stated that she had purchased it from Dickson Munala Njeka. PW6,
the investigating officer, confirmed the tracing and recovery of the stolen
phone and the subsequent arrest of the suspects. In addition, PW7
conducted an identification parade in which the witness positively
identified one of the suspects, Zablon Buliro, by touching him and
describing his physical appearance. At this stage, the Court is not required
to make definitive findings on credibility or guilt, but only to determine
whether a prima facie case has been established.
22. In the circumstances, this Court finds that the prosecution has adduced
sufficient evidence which, if left unanswered, may justify a conviction
against the accused persons for the offence of murder contrary to section
203 as read with section 204 of the Penal Code.
23. Consequently, this Court finds that the 1st and 4th accused persons have a
case to answer and they are hereby placed on their defence pursuant to
Section 306(2) of the Criminal Procedure Code. The defence hearing shall
be on 18th May 2026. It is so ordered.
DATED, SIGNED AND DELIVERED AT VIHIGA THIS 11TH DAY OF MAY
2026
IN THE HIGH COURT AT VIHIGA
CRIMINAL CASE NO E013 OF 2023
REPUBLIC……………………………………………………………….PROSECUTION
VERSUS
DICKSON MUNALA NJEKA…………………………………………..1ST ACCUSED
SYPROSE CHRISTINE OMONDI…………………………………….2ND ACCUSED
IBRA AMOS……………………………………………………………….3RD ACCUSED
ZABLON BULILO………………………………………………………..4TH ACCUSED
Coram:
Before Justice R. Nyakundi
M/s Leina for the State
Mr. Lugadiru Advocate for the 1st Accused
M/s Rabote Advocate for the 4th Accused
RULING
1. The Accused persons herein were charged with the offence of murder
contrary to section 203 as read with section 204 of the Penal Code. The
particulars of the offence were that Dickson Munala Njeka, Syprose
Christine Omondi, Ibra Amos and Zablon Bulilo alias Aguti on the 3rd day
of July 2023 at Ebuyalu Village, Embali Sub-location, Ipali location in
Emuhaya Sub-County within Vihiga County, jointly with others not before
court murdered Ibrahim Ondeko.
2. The plea of not guilty was entered against each of the Accused persons.
The lead prosecution counsel in these proceedings was Mr. Leina for the
state whereas the 1st and 4th Accused persons were under the
representation of Learned counsel Mr. Lugadiru and M/s Rabote
respectively.
3. This matter was partly heard by Kamau J. Nolle prosequi was entered
against the 2nd Accused herein Syprose Christine Omondi and the 3rd
Accused person herein Ibra Amos on 10th July 2024 according to Section
82(1) of the Criminal Procedure Code Cap 75 Laws of Kenya. The
Prosecution, thus, treated them as its witnesses. The matter herein,
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HCCRC NO E013 OF 2023
therefore, proceeded for trial as against the 1st and 4th Accused persons
only.
4. The prosecution marshalled 7 witnesses who gave evidence to establish
the ingredients of the offence of murder contrary to section 203 as read
with section 204 of the Penal code.
Prosecution Case Summary
5. PW1 - Cynthia Chepkorir Kiplagat, testified that she was a 23-year-old
student from Kitale and that the deceased, Ibrahim Ondeko, was her
friend and they had planned to live together. She testified that on 3rd July
2023 between 7.00 p.m. and 8.00 p.m., she was at the deceased’s shop at
Ebuyangu. The deceased had briefly gone to his home at Esibuye and later
returned, after which they talked and continued selling goods until about
8.00 p.m. when they closed the shop and proceeded to prepare dinner in
the house situated behind the shop. PW1 testified that while it was raining
heavily, they heard the door being pushed open and two thieves entered
the house. She stated that the electricity lights were on and the attackers
ordered them to keep quiet or they would “finish” them. PW1 testified that
one attacker cut her with a panga on her left hand while the other
assaulted her using rungus. She stated that the attackers had worn
marvins and jackets and that she did not know them. She further testified
that the deceased was on the bed as she quickly opened the shop door
and escaped towards a maize plantation while the attackers turned to the
deceased. PW1 further testified that she later proceeded to the deceased’s
brother Patrick’s shop at Ebuyangu but did not get him despite knocking.
She stated that she found a police vehicle outside the shop and informed
the driver that they had been attacked, whereupon they proceeded to the
police station before returning with police officers to the deceased’s shop.
PW1 testified that upon entering the shop, the police found the deceased
already killed and lying outside the house, with clothes scattered all over.
She stated that the attackers had stolen sugar, rice and bags containing
clothes. She further testified that the deceased’s family members,
including Patrick and his wife, later arrived at the scene together with DCI
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HCCRC NO E013 OF 2023
officers, after which the deceased’s body was taken to hospital. PW1 stated
that neighbours later informed Patrick that some clothes belonging to her,
the deceased and a child had been recovered from a shamba. She also
testified that the deceased’s Samsung phone and M-pesa phone were later
recovered from other people, although she did not know from whom they
were recovered. PW1 identified the Samsung phone shown to her in court
as the deceased’s phone marked “MFI-1” and confirmed that she later
recorded her statement with the police.
6. PW2 - Patrick Khamati Abnery, testified that he was a businessman
operating a shop at Esibuye and that the deceased, Ibrahim Ondeko, was
his younger brother. He testified that on 3rd July 2023 at about 8.30 p.m.,
while at his shop at Eshibinga, his wife Shamilla Lijodi called and informed
him that his brother Ibrahim had been attacked at the area known as
“Kwa Chief” where he operated his business. PW2 testified that he
immediately closed his shop, drove to the scene and upon arrival found
that the deceased had already died. He stated that the deceased was lying
outside the house near the maize plantation and had sustained cuts on
the shoulder, cheeks and forehead and was bleeding uncontrollably. He
further testified that police officers from Mbale had already arrived at the
scene and that he informed both his mother and father about the incident.
PW2 stated that after his parents arrived, the police removed the body of
the deceased and took it to Coptic Mortuary. He also testified that he found
the deceased’s wife Cynthia crying and injured, having sustained a cut on
her left hand, and that they later took her to Coptic Hospital before
proceeding to Emuhaya Police Station the following day to record
statements. PW2 further testified that police investigations later led to the
arrest of several suspects found in possession of the deceased’s phone,
which was blue in colour. He stated that he did not personally see the
suspects but confirmed that the stolen items included a suitcase
containing clothes, a woofer, money from the day’s business proceeds and
the deceased’s Mpesa phone. He testified that according to Cynthia, the
attackers had also stolen goods from the shop. PW2 identified the blue
Samsung phone shown to him in court as the deceased’s phone, which
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HCCRC NO E013 OF 2023
was marked as “MFI”. He finally testified that the severe cuts inflicted on
the deceased caused excessive bleeding which, in his view, led to the
deceased’s death.
7. PW3 - Ibrahim Amos testified that he was, a casual labourer from Dudi
in Kakamega County. He stated that he did not know the deceased,
Ibrahim Ondego, but came to know Dickson Munala Njeka and Zablon
Bulilo after being implicated in a scandal relating to a Safaricom line. PW3
testified that on 6th September 2023 at about 3.00 p.m., police officers
went to his home and asked him to surrender a Safaricom line which had
been registered in his name. He informed the police that he did not have
the line and led them to Syprose Christine at Yala, who was in possession
of it. He testified that the police arrested both him and Syprose Christine
and took them to Emuhaya Police Station where they were initially
remanded before later being released to become witnesses. PW3 confirmed
that the Safaricom line sought by the police was found with Syprose
Christine.
8. PW4 - Syprose Christine Omondi testified that she was from Yala and
that she knew Dickson Munala Njeka as her customer, Zablon Bulilo
because of the case and Ibra Amos as her boyfriend. She testified that on
6th September 2023 while selling chips and bhajia at Yala, police officers
arrived, arrested her and took her together with Ibra Amos to Dudi Police
Station. PW4 testified that the police questioned her about a phone and
she informed them that she had bought the Samsung phone at Yala from
Dickson Munala Njeka. She then led the police to Dickson Munala Njeka’s
shop where he was arrested before they were all taken to Emuhaya Police
Station. PW4 further testified that the police recovered the phone which
Dickson Munala Njeka had sold to her and identified the Samsung phone
with a blue cover marked as MFI 1 as the phone she had purchased.
9. PW5 – Dr. Dixon Mchana testified that he was the pathologist who
conducted the post mortem to the body of the deceased. PW5 testified with
the following findings on the body of the deceased: Upper airway looks
normal, there is massive haemo-pneumothorax in the right pleural space
with a compound fracture and on the head there was a deep cut wounds
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HCCRC NO E013 OF 2023
on the forehead and right cheek with compound fractures of the skull and
right zygomatic bone. PW5 formed the opinion that the cause of death was
a deep cut wound on the right shoulder with massive hemo-pneumothorax
of the right pleural space. PW4 produced the Post Mortem Report dated
13th July 2023 as PEXh 2.
10. PW6 - No. 59986 CPL Thomas Bii testified that he was a police officer
attached to DCI Emuhaya performing general investigation duties. He
testified that on 3rd July 2023 at about 8.00 p.m., while at his residence,
he received a call from IP Kioko informing him of an incident at Duka Moja
along Ebuyangu-Luanda Road within Ebuyala village. PW6 testified that
he proceeded to the scene together with PC Cheruiyot and found police
officers from Embali Police Station and members of the public already
present. He stated that they found the deceased Ibrahim Ondeko lying
down bleeding with serious injuries on the cheek, forehead and a deep cut
on the right shoulder, while his wife Cynthia Jekorir had sustained a cut
on her left arm below the elbow. PW6 further testified that Cynthia
informed them that after closing the business and while seated in the
sitting room behind the shop, three men armed with pangas forced their
way into the room and warned them not to scream. He testified that the
attackers assaulted them using pangas, forcing Cynthia to escape through
the front door with injuries on her left hand while the deceased remained
behind and was fatally attacked as he attempted to escape through the
rear door. PW6 stated that the attackers stole rice, sugar, clothes, two
mobile phones and an unknown amount of money before fleeing. He
testified that the body was removed to Coptic Hospital Mortuary while
Cynthia was escorted for treatment. PW6 further testified that on 6th
September 2023, together with CI Jacob Mongare and other officers, they
traced Ibra Amos, who led them to Syprose Christine found in possession
of the stolen phone and later to Dickson Munala Njeka from whom the
phone had allegedly been bought. He testified that the suspects were
arrested, investigations completed and the file forwarded to the Director
of Public Prosecutions who recommended that the suspects be charged
before the court.
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11. The next witness to be summoned by the prosecution was one PW7 – No
239980 Inspector Edgah Kibet. According to his evidence, his main role
was after the fact of the crime when he was asked by the investigating
officer PW6 that there are suspects who had been arrested and been on
the investigation radar with regard to the offence of murder contrary to
section 203 of the Penal Code jointly with others not before court
murdered Ibrahim Ondeko. In the testimony of PW7, on the receipt of the
circumstances of the investigation, it was felt necessary by PW7 to conduct
an identification parade with an objective of positive identification of the
suspects so that they can be placed at the scene of the crime. It was the
testimony of PW7 that he made arrangements for availability of the
members of the parade who numbered 8 whereas the suspects were kept
in a secure private room so that the parade is temper proof in the first
instance. One Zablon Buliro, the 4th Accused was place in the parade of 8
members with basically similar physical features with the suspects.
According to PW7, the suspect was invited from his private room, duly
secured to go to the parade location so that the witness Dickson Munala
could go through and identify the suspect allegedly mentioned in his
statement as one of the persons who were involved in the commission of
the crime. The Witness who is also a police inspector detective informed
the court that the suspect was placed between No 3 and 5; no 2 and 4; 1
and 3 and 4 and 6 and the witness was able to positively identify the
suspect by touching him and gave some description of his appearance as
the characteristics which supported his identification. The identification
parade form was then prepared and formed part of the trial bundle in
support of the prosecution case and admitted so as PEXh 3.
Analysis and Determination
12. Having carefully considered the evidence tendered by the prosecution, the
witness testimonies, the exhibits produced and the submissions by the
learned prosecution counsel, the issue for determination at this stage is;
Whether the prosecution has established a prima facie case against the
accused persons
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13. The Court at this stage is not required to make a definitive finding on the
guilt or innocence of the accused persons, but only to determine whether
there is evidence which, if left uncontroverted, could lead a reasonable
tribunal properly directing itself to convict. Then, the question for this
court to answer is whether under Section 306 of the Criminal Procedure
Code, the prosecution has discharged the burden of proof to meet the
threshold of a prima facie case for the accused person to be place on his
defence. First and foremost, Article 50(2)(a) states as follows: -
“Every accused person has a right to a fair trial which includes the
right to be presumed innocent until the contrary is proved.”
14. The prima facie obligation is vested with the prosecution. The success or
failure of it depends wholly on the evidence presented to prove existence
or non-existence of a fact or facts in issue as derived in Section 107(1), 108
and 109 of the Evidence Act. The term Prima facie is note defined under
Section 306 of the Criminal Procedure Code but the concept appears both
in criminal and civil law. There is a close knitted correlation between the
term prima facie as commonly used and prima facie evidence. In so far as
the definition is concerned, as deducible in Section 306 of the CPC, the
use of prima facie case means the prosecution having presented enough
evidence to proof the elements of the offence in question.
15. The prosecution is entitled to prevail in its case against the accused
person. Speaking plainly, there are two senses in which courts use the
concept of prima facie. The first in the sense of the prosecution producing
sufficient evidence to render a reasonable conclusion in favour of the
allegation asserted in the indictment or the charge sheet. That this what
gives the trial court the power to exercise discretion to allow the criminal
case to proceed to the next stage which is the defence offering an
explanation or an answer to the charge.
16. In the second meaning of the concept, a prima facie case denotes a
situation where the prosecution has adduced sufficient evidence capable
of persuading a properly constituted court or tribunal that the accused
person ought to be called upon to answer the case against him. Such
evidence is considered adequate that, if the accused person chooses to
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remain silent or fails to rebut it, the court may lawfully find him guilty and
enter a conviction. Nonetheless, the Constitution does not impose any
obligation upon the accused person to testify or tender evidence in
response. Under Article 50(2)(f) of the Constitution, an accused person has
the right to remain silent and not testify during the proceedings, while
Article 50(2)(i) guarantees the right against self-incrimination. However,
where the accused elects to exercise these constitutional rights, he does so
with the understanding that the unrebutted prosecution evidence may
result in an adverse finding against him.
17. It is well established in criminal law that once the prosecution establishes
a prima facie case, the evidential burden shifts to the accused person to
respond to the allegations raised. Even so, this does not in any way transfer
the legal burden of proof from the prosecution. The duty of proving the
guilt of the accused person beyond reasonable doubt remains with the
prosecution throughout the trial, consistent with Article 50(2)(a) of the
Constitution, which guarantees the presumption of innocence until proven
guilty. I presume that is what the drafters of the constitution had in mind
when the rights centered around Art 50(2)(a), (j) and (i) of the same
constitution. In Republic Vs Abdi Ibrahim Owl [2013] eKLR a prima
facie case was defined as follows: -
“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 rebuttal presumption that an accused person is guilty
of the offence he/she is charged with.
18. At the close of the prosecution case, this Court is guided by the case of
Anthony Ndegwa Ngari Vs Republic (2014) eKLR for the case of murder,
the republic is supposed to prove each of the following ingredients beyond
reasonable doubt: -
a. The fact of death
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b. The fact that the deceased’s death was caused by an unlawful act
or omission.
c. That the accused committed the unlawful act which caused the death
of the deceased; and
d. That the accused had malice aforethought.
19. At the prima facie stage, the court determines whether a reasonable
tribunal, properly directing itself on the law and evidence, could convict if
the prosecution evidence remained uncontroverted. The court is therefore
required to review the evidence and determine whether the prosecution
has established a prima facie case sufficient to warrant the accused being
placed on his defence. This is guided by the constitutional principle that
every accused person is presumed innocent until proved guilty beyond
reasonable doubt under Article 50 of the Constitution. Accordingly, the
court must make a judicial determination on the legal sufficiency of the
prosecution’s case at the close of the prosecution case before calling upon
the accused to enter his defence.
20. Having carefully considered the evidence adduced by the prosecution
witnesses, this Court is satisfied that the fact and cause of death of the
deceased Ibrahim Ondeko has been established. PW1 and PW6 testified
that the deceased was violently attacked by armed assailants at his
residence and shop at Ebuyangu on the night of 3rd July 2023, while PW2
found the deceased already dead with severe cut wounds on the shoulder,
cheeks and forehead. The medical evidence by PW5, the pathologist,
confirmed that the deceased sustained deep cut wounds and massive
haemopneumothorax leading to death. The evidence on record therefore
establishes that the deceased died as a result of unlawful acts inflicted by
other persons.
21. Further, the prosecution placed before the Court evidence linking the
accused persons to the offence through the doctrine of recent possession
and identification evidence. PW1 testified that the attackers stole, among
other items, the deceased’s Samsung phone and Mpesa phone. PW3 and
PW4 testified on how the stolen Samsung phone traced through a
Safaricom line registered in the name of PW3 was recovered from PW4,
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who stated that she had purchased it from Dickson Munala Njeka. PW6,
the investigating officer, confirmed the tracing and recovery of the stolen
phone and the subsequent arrest of the suspects. In addition, PW7
conducted an identification parade in which the witness positively
identified one of the suspects, Zablon Buliro, by touching him and
describing his physical appearance. At this stage, the Court is not required
to make definitive findings on credibility or guilt, but only to determine
whether a prima facie case has been established.
22. In the circumstances, this Court finds that the prosecution has adduced
sufficient evidence which, if left unanswered, may justify a conviction
against the accused persons for the offence of murder contrary to section
203 as read with section 204 of the Penal Code.
23. Consequently, this Court finds that the 1st and 4th accused persons have a
case to answer and they are hereby placed on their defence pursuant to
Section 306(2) of the Criminal Procedure Code. The defence hearing shall
be on 18th May 2026. It is so ordered.
DATED, SIGNED AND DELIVERED AT VIHIGA THIS 11TH DAY OF MAY
2026