1. The accused persons are charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code, the particulars being that on 08th June 2024 at Nyakwerema Sub-Location in Nyamira North Sub-County within Nyamira County, they murdered Zachary Momanyi.
2. The prosecution called seven witnesses and thereafter closed its case. The issue for determination at this stage is whether the prosecution has established a prima facie case against the accused persons to warrant placing them on their defence under section 306(2) of the Criminal Procedure Code.
3. The applicable test at this stage was stated in Ramanlal T. Bhatt v Republic [1957] EA 332 where the court held that a prima facie case is established where the evidence tendered by the prosecution, if left uncontroverted, would be sufficient to sustain a conviction by a properly directed tribunal. The court further cautioned that a mere scintilla of evidence or evidence raising only suspicion cannot suffice to place an accused person on his defence.
4. From the record, there is medical evidence confirming both the fact and cause of death.
5. Without making definitive findings on the credibility or probative value of the evidence at this stage, I am satisfied that no prima facie case has been established against the 2nd accused person. The deceased’s widow and the investigating officer conceded during cross-examination that there was no direct evidence connecting him to the offence apart from suspicion arising from his association with the 1st accused.
6. In the circumstances, the 2nd accused, Brayan Oroding, is hereby found not guilty and acquitted under section 306(1) of the Criminal Procedure Code unless otherwise lawfully held.
7. On the other hand, I find that a prima facie case has been established against the 1st accused, Ismail Barasa.
8. The 1st accused is hereby placed on his defence under section 306(2) of the Criminal Procedure Code. He is informed of his right to give sworn evidence, make an unsworn statement, call witnesses, or to remain silent.
2. The prosecution called seven witnesses and thereafter closed its case. The issue for determination at this stage is whether the prosecution has established a prima facie case against the accused persons to warrant placing them on their defence under section 306(2) of the Criminal Procedure Code.
3. The applicable test at this stage was stated in Ramanlal T. Bhatt v Republic [1957] EA 332 where the court held that a prima facie case is established where the evidence tendered by the prosecution, if left uncontroverted, would be sufficient to sustain a conviction by a properly directed tribunal. The court further cautioned that a mere scintilla of evidence or evidence raising only suspicion cannot suffice to place an accused person on his defence.
4. From the record, there is medical evidence confirming both the fact and cause of death.
5. Without making definitive findings on the credibility or probative value of the evidence at this stage, I am satisfied that no prima facie case has been established against the 2nd accused person. The deceased’s widow and the investigating officer conceded during cross-examination that there was no direct evidence connecting him to the offence apart from suspicion arising from his association with the 1st accused.
6. In the circumstances, the 2nd accused, Brayan Oroding, is hereby found not guilty and acquitted under section 306(1) of the Criminal Procedure Code unless otherwise lawfully held.
7. On the other hand, I find that a prima facie case has been established against the 1st accused, Ismail Barasa.
8. The 1st accused is hereby placed on his defence under section 306(2) of the Criminal Procedure Code. He is informed of his right to give sworn evidence, make an unsworn statement, call witnesses, or to remain silent.