1. Before this court, the Accused is facing a charge of murder contrary to section 203 as read with section 204 of the Penal Code . The particulars of the offence are that on 28 th December 2022 at Kivelini shopping center at Mua Hills Location in Machakos Sub-County within Machakos County, the Accused murdered Phillip Kilonzo Mutavi. He denied the charge and the Prosecution presented seven witnesses to prove its case against the Accused. After the closure of its case, the court is now being called upon to determine a motion of a case to answer or in the alternative to rule on a motion of no case to answer. The Accused has relied on written submissions whereas the Prosecution has relied on the evidence on record.
2. Section 306 of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya) ( CPC ) provides for what follows after the close of the Prosecution’s case as follows:
306. Close of case for prosecution
(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, 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.
3. By virtue of this section, and the rules made thereinunder, the contention is whether any of the elements of the offence as framed by the Prosecution implicating the Accused have been established to warrant an answer. Since the totality of the evidence adduced is based on the impression by the Prosecution alone, it is incumbent for the court not to arrive at findings on the merits of fact or issue in determining this half time submissions of a motion of no case to answer or a prima facie case needless to say that the principle in Miller v Minister of Pension (1942) AC 1 sums it as follows:“ It need not reach certainty, but it must carry a high degree of portability .” Similarly, in Bakare v State (1985) 2 NWLR 465 Oputa JSC held inter alia that “ Absolute certainly is impossible in any human adventure including the administration of criminal justice” ( see Republic v Otieno [2025] KEHC 17835 (KLR)]
4. I am also in agreement with the Accused’s submission that the predecessor of the Court of Appeal in the case of Ramanlal Trambaklal Bhatt v. R [1957] E.A 332 held that a prima facie case is not established by “a mere scintilla of evidence” or "worthless discredited evidence” but “… 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”. Thus, the court's role at this stage is not to determine the credibility of the evidence or whether the Accused is guilty, but simply to assess if there is sufficient, credible evidence to put him on his defence. The threshold for the Prosecution to meet is not beyond reasonable doubt at this stage, but rather whether there is evidence upon which a conviction could be based if unrebutted.
5. Having gone through the evidence, I find that on a prima facie basis, the Prosecution has presented direct and circumstantial evidence that connects the Accused to the death of the victim. Josephine Koki Ochidi (PW 1), the deceased’s wife testified that she saw the Accused on top of her husband and hit him on the head with a spade. Samuel Masila (PW 2) and Gabriel Mwanzia Muwiwa (PW 5) also testified that they saw the Accused hit the deceased on the head with a spade which they all identified in court. This direct evidence of an assault by the Accused on the victim is the strongest piece of evidence establishing a link between the Accused and the cause of injury.
6. Dr. Michieka Okioga (PW 6), a Pathologist, testified that the cause of death was severe abdominal and head trauma due to blunt force trauma. The injuries were described as severe head trauma, rib fractures, intestinal perforations which are entirely consistent with the type of assault described by the eyewitnesses of being hit with a spade. While the doctor could not state the exact age of the injuries, he confirmed they were fresh and consistent with the assault timeline. 92531 CPL Albert Wekesa (PW 7) testified that he was the Investigating Officer in this matter and that his investigation, guided by witness statements, led him to the Accused and the weapon and I find that this testimony supports the narrative that the assault occurred and was the cause of the deceased's death.
7. The Accused’s submissions attempt to create doubt, but I find that they do not succeed in destroying the Prosecution's case to the point where no case to answer exists. While there are minor contradictions like the exact time the victim was taken to hospital, the precise location of the head injury, these are not necessarily fatal. The narrative of the assault, the weapon used and the identity of the Accused are corroborated by multiple witnesses. As stated, such contradictions go to the weight and credibility of evidence, which is a matter for the full trial after the defence is heard, not a "no case to answer" ruling. Further, murder does not require a witness to see the final blow. The Prosecution's case is that the Accused caused the fatal injuries and the victim died later as a direct result. Witnesses saw the Accused inflict the exact injuries that PW 6 stated caused the death and I find that the chain of causation is a matter for the trial court to determine.
8. In conclusion, I find that the Prosecution has adduced direct, corroborated eyewitness evidence of an assault by the Accused on the victim with a spade acting as the weapon. This assault caused severe head and abdominal injuries, which, according to the medical evidence, led to the victim's death. Therefore, the evidence is not a "mere scintilla" nor is it "worthless or discredited” and a reasonable tribunal, if it believed this evidence, could convict the Accused. I find that the Accused has a case to answer, as the Prosecution has established a prima facie case and he is now called upon to state his defence as per section 306 of the CPC .
DATED SIGNED AND DELIVERED virtually this 10 TH DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Ms. Machuma for the Prosecution/ODPP
2. Mr. Mungatta holding brief for Mr. Mutava for the Accused
3. Abdisalan- Court Assistant
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2. Section 306 of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya) ( CPC ) provides for what follows after the close of the Prosecution’s case as follows:
306. Close of case for prosecution
(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, 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.
3. By virtue of this section, and the rules made thereinunder, the contention is whether any of the elements of the offence as framed by the Prosecution implicating the Accused have been established to warrant an answer. Since the totality of the evidence adduced is based on the impression by the Prosecution alone, it is incumbent for the court not to arrive at findings on the merits of fact or issue in determining this half time submissions of a motion of no case to answer or a prima facie case needless to say that the principle in Miller v Minister of Pension (1942) AC 1 sums it as follows:“ It need not reach certainty, but it must carry a high degree of portability .” Similarly, in Bakare v State (1985) 2 NWLR 465 Oputa JSC held inter alia that “ Absolute certainly is impossible in any human adventure including the administration of criminal justice” ( see Republic v Otieno [2025] KEHC 17835 (KLR)]
4. I am also in agreement with the Accused’s submission that the predecessor of the Court of Appeal in the case of Ramanlal Trambaklal Bhatt v. R [1957] E.A 332 held that a prima facie case is not established by “a mere scintilla of evidence” or "worthless discredited evidence” but “… 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”. Thus, the court's role at this stage is not to determine the credibility of the evidence or whether the Accused is guilty, but simply to assess if there is sufficient, credible evidence to put him on his defence. The threshold for the Prosecution to meet is not beyond reasonable doubt at this stage, but rather whether there is evidence upon which a conviction could be based if unrebutted.
5. Having gone through the evidence, I find that on a prima facie basis, the Prosecution has presented direct and circumstantial evidence that connects the Accused to the death of the victim. Josephine Koki Ochidi (PW 1), the deceased’s wife testified that she saw the Accused on top of her husband and hit him on the head with a spade. Samuel Masila (PW 2) and Gabriel Mwanzia Muwiwa (PW 5) also testified that they saw the Accused hit the deceased on the head with a spade which they all identified in court. This direct evidence of an assault by the Accused on the victim is the strongest piece of evidence establishing a link between the Accused and the cause of injury.
6. Dr. Michieka Okioga (PW 6), a Pathologist, testified that the cause of death was severe abdominal and head trauma due to blunt force trauma. The injuries were described as severe head trauma, rib fractures, intestinal perforations which are entirely consistent with the type of assault described by the eyewitnesses of being hit with a spade. While the doctor could not state the exact age of the injuries, he confirmed they were fresh and consistent with the assault timeline. 92531 CPL Albert Wekesa (PW 7) testified that he was the Investigating Officer in this matter and that his investigation, guided by witness statements, led him to the Accused and the weapon and I find that this testimony supports the narrative that the assault occurred and was the cause of the deceased's death.
7. The Accused’s submissions attempt to create doubt, but I find that they do not succeed in destroying the Prosecution's case to the point where no case to answer exists. While there are minor contradictions like the exact time the victim was taken to hospital, the precise location of the head injury, these are not necessarily fatal. The narrative of the assault, the weapon used and the identity of the Accused are corroborated by multiple witnesses. As stated, such contradictions go to the weight and credibility of evidence, which is a matter for the full trial after the defence is heard, not a "no case to answer" ruling. Further, murder does not require a witness to see the final blow. The Prosecution's case is that the Accused caused the fatal injuries and the victim died later as a direct result. Witnesses saw the Accused inflict the exact injuries that PW 6 stated caused the death and I find that the chain of causation is a matter for the trial court to determine.
8. In conclusion, I find that the Prosecution has adduced direct, corroborated eyewitness evidence of an assault by the Accused on the victim with a spade acting as the weapon. This assault caused severe head and abdominal injuries, which, according to the medical evidence, led to the victim's death. Therefore, the evidence is not a "mere scintilla" nor is it "worthless or discredited” and a reasonable tribunal, if it believed this evidence, could convict the Accused. I find that the Accused has a case to answer, as the Prosecution has established a prima facie case and he is now called upon to state his defence as per section 306 of the CPC .
DATED SIGNED AND DELIVERED virtually this 10 TH DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Ms. Machuma for the Prosecution/ODPP
2. Mr. Mungatta holding brief for Mr. Mutava for the Accused
3. Abdisalan- Court Assistant
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