1. The accused was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal code, Cap 63 of the Laws of Kenya. The particulars of the offence are that on the 28th day of November 2023 at Kakisonga Sub-location, Kamoi location within Marakwet west Sub-county within Elgeyo Marakwet County, he unlawfully murdered Denis Kiptoo.
2. From the record, the accused took plea on 13/12/2023 before Hon. Justice Wananda JR Anuro. He denied the charge and a plea of not guilty was entered. The trial commenced on 05/02/2025 and the prosecution called six witnesses and closed its case on 03/04/2025. At the close, the Prosecution stated that it will not make any submissions but would be wholly rely on the evidence on record. The defence on its part, stated its intention to file submissions and the court gave directions on the same.
3. This Ruling therefore is on whether the accused person has a case to answer.
Prosecution Evidence
4. PW1 was Winnie Yator, a neighbour to both the deceased and accused for the last 7 years. It was her testimony that on 28/11/2023, at 9 pm, she heard people fighting at a neighbour’s house, which house belonged to ‘Kossy’, and her husband Dan Kiplagat. She stated that she moved closer to the house and pushed the door open, upon which she saw one Kimutai beating someone with a stick. The person who was being hit was on the floor and the light in the house was from a solar lamp. The door closed itself and when she was about to return to her home, she heard the door open again. She saw ‘Kossy’ coming out of the house holding Kiptoo (The deceased) by the hand, pulling him, with Kimutai, who had a ‘fimbo’, following close behind. She pointed out that Kiptoo the deceased was facing the inside of the house, speaking to both Kimutai and Koplo who were getting out of the house facing him. The deceased was walking in reverse trying to avoid them and fell on his back.
5. The witness stated that Koplo and the accused then went to where the deceased was and proceeded to beat him continuously. It was 20 metres from the house and there was moonlight outside. Further, that there were two other people, Richard Kipkorir and Willy who came to the scene, beseeching them to stop fighting. After they were separated, the accused then ran back to the house saying ‘wapi panga yangu’. As he got in the house, someone locked him in and as the deceased came towards the house, and the witness together with Kossy and Willy escorted him to the gate.
6. As they tried to persuade him to go home, she saw the accused come out through the window and she escaped to save herself. She then returned and found Kossy, Korir and Peter at the gate. They told her that the accused bit Kossy when she tried to save the deceased. Willy was also with them and they agreed that the deceased’s family should be notified of what was going on so that they could come and save him. She later heard the accused ask Kosgei, their neighbour ‘Wewe Kosgei unataka nini huku, unataka nikuue’. Then she heard the sound of fighting again.
7. They decided to leave and on the way home, she met Koplo who said he was also heading home. She stated that she later met Kiptoo, Kimutai and Kosgei standing outside the house. The deceased had been stabbed and was bleeding. The deceased asked the accused ‘utanimaliza ama utanibakisha’ and the accused replied ‘nitakubakisha’. The accused then gave the deceased the solar light, told him to shine it on himself and left. He took the light, shone it on himself then dropped his clothes. The deceased sat down then he fell and slept and the light fell of his hand. She took the light and shone it on the deceased after he fell down and then she screamed and people came, including Laban, and took the deceased to the hospital. She heard on the next day, that he had passed away.
8. During cross examination, she stated that she saw the accused when she opened the door and that there was a D Light (Solar) in the house. Further, that she saw them fighting in the house and she saw the accused beating the deceased. However, she did not see the accused cut the deceased with a knife.
9. PW2 was Hillary Kosgei who told the court that on 29/11/2023 he was sleeping when at around 9 pm he heard dogs barking. When he went outside to check, he met an elderly man called Chitigei who was making noise while he was passing by. The old man informed him that there were people fighting near his neighbours’ place. He proceeded to his neighbours’ place where he heard his father calling the deceased, telling the people there to stop fighting and asking them to leave. He then found the accused and the deceased fighting and each of them had a rungu. He then left out of fear and along the way, from a few metres away’ he heard PW1 say ‘wanadunga mtu’.
10. He then met with PW1 and they went back to the scene where they found the deceased had been stabbed in the neck. It was his testimony that he was able to see as it was not very dark outside and he was therefore able to identify everyone who was there. During cross examination, he stated that he did not see the deceased get stabbed and he did not see the weapons they used, he identified them by the sound they produced, stating that it was those of sticks and rungus. He did not know what the fight was about but even the deceased was fighting.
11. PW3 was Laban Chesulel. He testified that on 28/11/2023 at around 9pm, while returning from his shop at Sokomero village, he received a call from his neighbour, PW2. He told him to go to the deceased fathers’ home, Johnstone Kibor alias Kaunda, and inform him that his son had been beaten and injured by the accused and Koplo, two brothers, sons of Lotasiwa. He passed the news and then went to the scene which was the house where the accused and Chepkosgei lived together. He found the deceased outside the house, lying in the veranda. His son, Titus, among other people, helped him carry the deceased to the road and they placed him on a motor bike. The deceased’s brother, Bismark, held him and they took him to Kaptelpo Health Centre where the doctor examined him and told them that he had already died. He knew the accused but did not find him at the scene. In cross examination he stated that he saw three stab wounds on the neck of the deceased.
12. PW4 was Johnstone Kibor, father to the deceased. He stated that on 28/11/2023 he was informed by PW3 that his son had been beaten and they went to the scene with PW3 ahead. He later met PW3 who was carrying his son and he could see stab wounds on his throat. He followed them to the hospital where he heard the doctor say that his son had already died.
13. PW5 was Dennis Nanyingi, a Senior Medical Officer at Kitale County Referral Hospital. He produced the post mortem report for the deceased. It was his testimony that the external appearance of the body showed 2 stab wounds where the first was located on the right supraclavicular area and was 0.8cms in length. The second one measured 0.9 cms in length and was located at the 1st right anterior intercostal space at the medial end. He also had peripheral cyanosis on the finger nails which usually indicate lack of oxygen before death. He had bruises on the knee joints.
14. That internally, the second wound had penetrated the respiratory system and the upper right lobe had a stab wound, a collapsed right lung and masore right haemothorax of more than 2 litres. The heart had shifted to the left and was contracted. He further stated that the other systems were normal. Based on his examination, he formed the opinion that the cause of death was atelechesis/ haemothorax secondary to penetrating of the chest injury by sharp weapon. He stated that he gave a death certificate No. 0158406 and confirmed that he conducted the post mortem and signed the report dated 4/12/2023. He produced the report as P-exh1.
15. In cross examination, he stated that the deceased had a stab wound on the neck and a second one in the chest. That he did not disclose any pre-medical condition and that the weapon was a sharp object which caused a penetration chest injury.
16. PW6 was Corporal Evans Kimutai Suter, attached to DCI Marakwet West, the investigating officer in the case. He testified that on 29/02/2023, at 8 am he was informed by his immediate supervisor that they would be proceeding to visit a murder scene and collect a suspect. Hey proceeded and found the accused person who had surrendered himself to Kapcherop Police Station. They proceeded to the scene and found it had been disturbed and the houses where the offence was committed had been burned down. They recorded the statements of the witnesses and were told that the deceased was fighting with 2 gentlemen, the accused and a suspect who is at large and still missing.
17. In cross examination, he stated that he did not collect any weapon at the scene or any fingerprints. That he did not produce any evidence that the scene was burnt.
Accused Submissions
18. Counsel for the accused submitted that the question before this court to answer is whether the prosecution has discharged the burden of proof to meet the threshold of a prima facie case for the accused to be placed on his defence. Additionally, that the Prima facie obligation is vested with prosecution, and, that the success or failure of it depends wholly on the evidence presented to proof existence or non-existent of a fact or facts in issue as derived in Section 107 (1), 108,109 of the Evidence Act. Counsel stated the ingredients of murder by virtue of Section 203 and 206 of the Penal Code to wit;
The fact of death; The fact that the deceased’s death caused by unlawfully act or omission, that the accused /committed the unlawfully act which caused the death of the deceased and; That the accused had malice aforethought.
19. It is the accused person’s case that the first two ingredients remain undisputed. On the third ingredient, Counsel submitted that none of the prosecution witnesses adduced evidence to the effect that the accused person indeed had an intention to kill the deceased person. That furthermore, there was no eye witness account. That in the alternative even if the Prosecution were to rely on circumstantial evidence, for it to stand, the chain of events must be corroborative and supportive of each other in order to sustain the charge of murder.
20. Counsel urged that PW1, PW2, PW3, PW4 and PW5 all testified that none saw the accused person stab the deceased person and neither of the witnesses testified as to having seen the accused with any sharp object. Further, that the weapon of murder having not been found or produced leaves the evidence of motive completely unestablished. Relying on the evidence by the prosecution, counsel urged this court to find that the case against the accused person falls short of the threshold of a prima facie case for the following reasons;
a) The prosecution has failed to demonstrate malice aforethought by the accused person to commit the offence.
b) The prosecution has totally failed to demonstrate that the accused caused the death of the deceased.
c) That the testimony of PW2 PW3 PW4, PW5 and PW6 on what transpired on the material day of 28th day of November, 2023 demonstrates inconsistencies and contradictions that fails to establish a prima facie case against the accused
d) That the investigations conducted by PW5 left gaps by not interrogating other key witnesses present at the scene of the crime during and after the incident.
21. Counsel urged the court to make a finding of no case to answer and order for an acquittal. He maintained that the chain of evidence grossly fails to corroborate. That the sharp object described by the PW6 was never produced as an exhibit and that there was no forensic report to link the murder weapon to the accused person. Further, that the evidence of the PW5 succinctly justifies the element of suspicion, uncertainty and doubt as to who caused the murder of the deceased. He cited the observations of the Court of Appeal in P.O.N vs. Republic (2019) eKLR and submitted that it would be an act in futility and an academic exercise to consider the presence of malice, or otherwise malice aforethought, and put the accused on defence. More so when the witnesses and more especially PW5 who had no cogent testimony to convict the accused or to put him to defence.
22. He cited the decision of Justice R. Nyakundi in Republic vs. Keino (criminal case E008 OF 2016) (2024) KEHC 7164 (KLR) (19 June 2024 (Ruling) where the accused was acquitted on account of having no case to answer and prayed the court be guided by the same.
Determination
23. The issue for determination is whether the Accused person has a case to answer
24. Section 306(1) and (2) provide as follows;
(1) 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 recording 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 on his own behalf or make unsworn statement and to call witnesses in his defence ….”
25. “A case to answer”, was aptly described by G. Dulu J in the case of Republic vs Joseph Shitandi & Another (2014) eKLR as follows:
“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.”
26. The procedure in determining whether an accused has a case to answer was discussed in the case of Republic vs Samuel Karanja Kiria (2009) eKLR where J.B Ojwang J (as he then was) stated the following:
‘The question at this stage is not whether or not the accused is guilty as charged but whether there is cogent evidence of his connection with the circumstances in which killing of deceased occurred. That the concept of prima facie case dictates as a matter of law that an opportunity created by this court for the accused to state his own case regarding the killing. The governing law on this point is well settled ... The Court of Appeal is Criminal Appeal No. 77/2006 expressed that too detailed analysis of evidence stage at no case to answer stage is undesirable it the court is going to put accused on his defence as too much details in the trial court’s ruling could then compromise the evidentiary quality of the defence to be mounted.’
27. The trial Court is however cautioned that, at this stage, it should not make definitive findings should it conclude that the accused has a case to answer. In this regard, in Festo Wandera Mukando vs Republic [1980] KLR 103, E. Trevelyan J stated as follows:
“...... 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, and 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.”
28. Section 210 of the Criminal Procedure Code, it provides as follows:
“If at the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as the prosecutor and the accused person or his advocate may wish to put forward, it appears to the Court that a case is not made out against the accused person sufficiently to require him to make a defence, the Court shall dismiss the case and shall forthwith acquit him.”
29. What amounts to a “prima facie” case under the equivalent of the provisions of Section 210 were considered by the Court of Appeal in Ramanlal Bhatt Vs. R (1957) EA 332 thus:
“It is true that the Court is not required at this stage to decide finally whether the evidence is worthy of credit, or whether if believed is weighty enough to prove conclusively, that final determination can only be properly made when the case for defence has been heard. It may not be easy to define what is meant by prima-facie case but it must mean one which a reasonable tribunal properly directing its mind to the law and the evidence could convict if no explanation was offered by the defence.”
30. Section 203 of the Penal Code provides as follows on the ingredients of the offence
“Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.”
31. Having considered the prosecution case as herein above summarised, the submissions by Counsel and the authorities therein cited, the relevant Statutory provisions and case Law as herein set, out, I am satisfied that the prosecution case has established a prima facie case sufficient to warrant the accused being put on his defence. I therefore find that the accused has a case to answer and he is now hereby put on his defence.
Read Dated and Signed at ELDORET on 9th JULY 2025
2. From the record, the accused took plea on 13/12/2023 before Hon. Justice Wananda JR Anuro. He denied the charge and a plea of not guilty was entered. The trial commenced on 05/02/2025 and the prosecution called six witnesses and closed its case on 03/04/2025. At the close, the Prosecution stated that it will not make any submissions but would be wholly rely on the evidence on record. The defence on its part, stated its intention to file submissions and the court gave directions on the same.
3. This Ruling therefore is on whether the accused person has a case to answer.
Prosecution Evidence
4. PW1 was Winnie Yator, a neighbour to both the deceased and accused for the last 7 years. It was her testimony that on 28/11/2023, at 9 pm, she heard people fighting at a neighbour’s house, which house belonged to ‘Kossy’, and her husband Dan Kiplagat. She stated that she moved closer to the house and pushed the door open, upon which she saw one Kimutai beating someone with a stick. The person who was being hit was on the floor and the light in the house was from a solar lamp. The door closed itself and when she was about to return to her home, she heard the door open again. She saw ‘Kossy’ coming out of the house holding Kiptoo (The deceased) by the hand, pulling him, with Kimutai, who had a ‘fimbo’, following close behind. She pointed out that Kiptoo the deceased was facing the inside of the house, speaking to both Kimutai and Koplo who were getting out of the house facing him. The deceased was walking in reverse trying to avoid them and fell on his back.
5. The witness stated that Koplo and the accused then went to where the deceased was and proceeded to beat him continuously. It was 20 metres from the house and there was moonlight outside. Further, that there were two other people, Richard Kipkorir and Willy who came to the scene, beseeching them to stop fighting. After they were separated, the accused then ran back to the house saying ‘wapi panga yangu’. As he got in the house, someone locked him in and as the deceased came towards the house, and the witness together with Kossy and Willy escorted him to the gate.
6. As they tried to persuade him to go home, she saw the accused come out through the window and she escaped to save herself. She then returned and found Kossy, Korir and Peter at the gate. They told her that the accused bit Kossy when she tried to save the deceased. Willy was also with them and they agreed that the deceased’s family should be notified of what was going on so that they could come and save him. She later heard the accused ask Kosgei, their neighbour ‘Wewe Kosgei unataka nini huku, unataka nikuue’. Then she heard the sound of fighting again.
7. They decided to leave and on the way home, she met Koplo who said he was also heading home. She stated that she later met Kiptoo, Kimutai and Kosgei standing outside the house. The deceased had been stabbed and was bleeding. The deceased asked the accused ‘utanimaliza ama utanibakisha’ and the accused replied ‘nitakubakisha’. The accused then gave the deceased the solar light, told him to shine it on himself and left. He took the light, shone it on himself then dropped his clothes. The deceased sat down then he fell and slept and the light fell of his hand. She took the light and shone it on the deceased after he fell down and then she screamed and people came, including Laban, and took the deceased to the hospital. She heard on the next day, that he had passed away.
8. During cross examination, she stated that she saw the accused when she opened the door and that there was a D Light (Solar) in the house. Further, that she saw them fighting in the house and she saw the accused beating the deceased. However, she did not see the accused cut the deceased with a knife.
9. PW2 was Hillary Kosgei who told the court that on 29/11/2023 he was sleeping when at around 9 pm he heard dogs barking. When he went outside to check, he met an elderly man called Chitigei who was making noise while he was passing by. The old man informed him that there were people fighting near his neighbours’ place. He proceeded to his neighbours’ place where he heard his father calling the deceased, telling the people there to stop fighting and asking them to leave. He then found the accused and the deceased fighting and each of them had a rungu. He then left out of fear and along the way, from a few metres away’ he heard PW1 say ‘wanadunga mtu’.
10. He then met with PW1 and they went back to the scene where they found the deceased had been stabbed in the neck. It was his testimony that he was able to see as it was not very dark outside and he was therefore able to identify everyone who was there. During cross examination, he stated that he did not see the deceased get stabbed and he did not see the weapons they used, he identified them by the sound they produced, stating that it was those of sticks and rungus. He did not know what the fight was about but even the deceased was fighting.
11. PW3 was Laban Chesulel. He testified that on 28/11/2023 at around 9pm, while returning from his shop at Sokomero village, he received a call from his neighbour, PW2. He told him to go to the deceased fathers’ home, Johnstone Kibor alias Kaunda, and inform him that his son had been beaten and injured by the accused and Koplo, two brothers, sons of Lotasiwa. He passed the news and then went to the scene which was the house where the accused and Chepkosgei lived together. He found the deceased outside the house, lying in the veranda. His son, Titus, among other people, helped him carry the deceased to the road and they placed him on a motor bike. The deceased’s brother, Bismark, held him and they took him to Kaptelpo Health Centre where the doctor examined him and told them that he had already died. He knew the accused but did not find him at the scene. In cross examination he stated that he saw three stab wounds on the neck of the deceased.
12. PW4 was Johnstone Kibor, father to the deceased. He stated that on 28/11/2023 he was informed by PW3 that his son had been beaten and they went to the scene with PW3 ahead. He later met PW3 who was carrying his son and he could see stab wounds on his throat. He followed them to the hospital where he heard the doctor say that his son had already died.
13. PW5 was Dennis Nanyingi, a Senior Medical Officer at Kitale County Referral Hospital. He produced the post mortem report for the deceased. It was his testimony that the external appearance of the body showed 2 stab wounds where the first was located on the right supraclavicular area and was 0.8cms in length. The second one measured 0.9 cms in length and was located at the 1st right anterior intercostal space at the medial end. He also had peripheral cyanosis on the finger nails which usually indicate lack of oxygen before death. He had bruises on the knee joints.
14. That internally, the second wound had penetrated the respiratory system and the upper right lobe had a stab wound, a collapsed right lung and masore right haemothorax of more than 2 litres. The heart had shifted to the left and was contracted. He further stated that the other systems were normal. Based on his examination, he formed the opinion that the cause of death was atelechesis/ haemothorax secondary to penetrating of the chest injury by sharp weapon. He stated that he gave a death certificate No. 0158406 and confirmed that he conducted the post mortem and signed the report dated 4/12/2023. He produced the report as P-exh1.
15. In cross examination, he stated that the deceased had a stab wound on the neck and a second one in the chest. That he did not disclose any pre-medical condition and that the weapon was a sharp object which caused a penetration chest injury.
16. PW6 was Corporal Evans Kimutai Suter, attached to DCI Marakwet West, the investigating officer in the case. He testified that on 29/02/2023, at 8 am he was informed by his immediate supervisor that they would be proceeding to visit a murder scene and collect a suspect. Hey proceeded and found the accused person who had surrendered himself to Kapcherop Police Station. They proceeded to the scene and found it had been disturbed and the houses where the offence was committed had been burned down. They recorded the statements of the witnesses and were told that the deceased was fighting with 2 gentlemen, the accused and a suspect who is at large and still missing.
17. In cross examination, he stated that he did not collect any weapon at the scene or any fingerprints. That he did not produce any evidence that the scene was burnt.
Accused Submissions
18. Counsel for the accused submitted that the question before this court to answer is whether the prosecution has discharged the burden of proof to meet the threshold of a prima facie case for the accused to be placed on his defence. Additionally, that the Prima facie obligation is vested with prosecution, and, that the success or failure of it depends wholly on the evidence presented to proof existence or non-existent of a fact or facts in issue as derived in Section 107 (1), 108,109 of the Evidence Act. Counsel stated the ingredients of murder by virtue of Section 203 and 206 of the Penal Code to wit;
The fact of death; The fact that the deceased’s death caused by unlawfully act or omission, that the accused /committed the unlawfully act which caused the death of the deceased and; That the accused had malice aforethought.
19. It is the accused person’s case that the first two ingredients remain undisputed. On the third ingredient, Counsel submitted that none of the prosecution witnesses adduced evidence to the effect that the accused person indeed had an intention to kill the deceased person. That furthermore, there was no eye witness account. That in the alternative even if the Prosecution were to rely on circumstantial evidence, for it to stand, the chain of events must be corroborative and supportive of each other in order to sustain the charge of murder.
20. Counsel urged that PW1, PW2, PW3, PW4 and PW5 all testified that none saw the accused person stab the deceased person and neither of the witnesses testified as to having seen the accused with any sharp object. Further, that the weapon of murder having not been found or produced leaves the evidence of motive completely unestablished. Relying on the evidence by the prosecution, counsel urged this court to find that the case against the accused person falls short of the threshold of a prima facie case for the following reasons;
a) The prosecution has failed to demonstrate malice aforethought by the accused person to commit the offence.
b) The prosecution has totally failed to demonstrate that the accused caused the death of the deceased.
c) That the testimony of PW2 PW3 PW4, PW5 and PW6 on what transpired on the material day of 28th day of November, 2023 demonstrates inconsistencies and contradictions that fails to establish a prima facie case against the accused
d) That the investigations conducted by PW5 left gaps by not interrogating other key witnesses present at the scene of the crime during and after the incident.
21. Counsel urged the court to make a finding of no case to answer and order for an acquittal. He maintained that the chain of evidence grossly fails to corroborate. That the sharp object described by the PW6 was never produced as an exhibit and that there was no forensic report to link the murder weapon to the accused person. Further, that the evidence of the PW5 succinctly justifies the element of suspicion, uncertainty and doubt as to who caused the murder of the deceased. He cited the observations of the Court of Appeal in P.O.N vs. Republic (2019) eKLR and submitted that it would be an act in futility and an academic exercise to consider the presence of malice, or otherwise malice aforethought, and put the accused on defence. More so when the witnesses and more especially PW5 who had no cogent testimony to convict the accused or to put him to defence.
22. He cited the decision of Justice R. Nyakundi in Republic vs. Keino (criminal case E008 OF 2016) (2024) KEHC 7164 (KLR) (19 June 2024 (Ruling) where the accused was acquitted on account of having no case to answer and prayed the court be guided by the same.
Determination
23. The issue for determination is whether the Accused person has a case to answer
24. Section 306(1) and (2) provide as follows;
(1) 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 recording 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 on his own behalf or make unsworn statement and to call witnesses in his defence ….”
25. “A case to answer”, was aptly described by G. Dulu J in the case of Republic vs Joseph Shitandi & Another (2014) eKLR as follows:
“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.”
26. The procedure in determining whether an accused has a case to answer was discussed in the case of Republic vs Samuel Karanja Kiria (2009) eKLR where J.B Ojwang J (as he then was) stated the following:
‘The question at this stage is not whether or not the accused is guilty as charged but whether there is cogent evidence of his connection with the circumstances in which killing of deceased occurred. That the concept of prima facie case dictates as a matter of law that an opportunity created by this court for the accused to state his own case regarding the killing. The governing law on this point is well settled ... The Court of Appeal is Criminal Appeal No. 77/2006 expressed that too detailed analysis of evidence stage at no case to answer stage is undesirable it the court is going to put accused on his defence as too much details in the trial court’s ruling could then compromise the evidentiary quality of the defence to be mounted.’
27. The trial Court is however cautioned that, at this stage, it should not make definitive findings should it conclude that the accused has a case to answer. In this regard, in Festo Wandera Mukando vs Republic [1980] KLR 103, E. Trevelyan J stated as follows:
“...... 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, and 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.”
28. Section 210 of the Criminal Procedure Code, it provides as follows:
“If at the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as the prosecutor and the accused person or his advocate may wish to put forward, it appears to the Court that a case is not made out against the accused person sufficiently to require him to make a defence, the Court shall dismiss the case and shall forthwith acquit him.”
29. What amounts to a “prima facie” case under the equivalent of the provisions of Section 210 were considered by the Court of Appeal in Ramanlal Bhatt Vs. R (1957) EA 332 thus:
“It is true that the Court is not required at this stage to decide finally whether the evidence is worthy of credit, or whether if believed is weighty enough to prove conclusively, that final determination can only be properly made when the case for defence has been heard. It may not be easy to define what is meant by prima-facie case but it must mean one which a reasonable tribunal properly directing its mind to the law and the evidence could convict if no explanation was offered by the defence.”
30. Section 203 of the Penal Code provides as follows on the ingredients of the offence
“Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.”
31. Having considered the prosecution case as herein above summarised, the submissions by Counsel and the authorities therein cited, the relevant Statutory provisions and case Law as herein set, out, I am satisfied that the prosecution case has established a prima facie case sufficient to warrant the accused being put on his defence. I therefore find that the accused has a case to answer and he is now hereby put on his defence.
Read Dated and Signed at ELDORET on 9th JULY 2025