1. The accused persons herein, Kelvin Naftally Oganga alias Johnstone Kilonzo (Dogmatser) and Mercy Mwikali through an information dated 11th December 2021 were charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap. 63) Laws of Kenya that on 19th September 2021 at Kigombero area. Kikoneni location in Lunga Lunga Sub-County within Kwale County, jointly murdered Himid Said Saleh.
2. The prosecution closed its case after calling eleven (11) witnesses to support the charge.
3. PW 1, Mwidadi Omari is a government analyst. He carried out a DNA analysis of some blood stained clothes, bones and soil presented to him together with a buccal swab. He found that the bones, clothes and soil generated no DNA profile while the buccal swab generated a female DNA profile. He produced the report of the findings dated 11th March 2022 as evidence in court.
4. PW 2, Erick Oketch Ochieng on 29th September 2021 ferried the accused persons and a small child from their residence at Kikoneni/Chigombero area in Kwale County together with their household items, 3 dogs and two motor cycles, 3 beds and 3 Nigerian bags, among others, in his Toyota Hilux Pick-up registration number KCJ 799M to Matasia in Kajiado County.
5. PW 3, Celine Atieno Oganga, is the mother of the 1st accused person. She said that the 1st accused person had informed her that he was staying in Ramisi area. She later learnt that he was taking care of dogs. On 20th September 2021, he visited her at her residence with the 2nd accused person who he introduced to PW 3 as his wife and a small girl. The 1st accused person left them briefly, informing PW 3 that he was going to look for a vehicle to take some things to Mombasa. In his absence, the 2nd accused person told PW 3 that wherever they were staying Kelvin had some differences with witches who had reported him to the police. When the 1st accuse person returned, he was riding a motorbike and they left in a hurry.
6. Some Arabs later went to her looking for the 1st accused person. They told her that one of them who was staying with the 1st accused person had gone missing and they could not trace him.
7. Later PW 3 was arrested by police in their search for the 1st accused person.
8. PW 4, Maimuna Sharif Omar is a cousin sister to the Hamed Said Saleh, who was the alleged victim of the murder. PW 4 said that Hamed used to stay on the family farm in Chigombero in Kwale County. She also said that the 1st accused person was employed on the farm as a caretaker and professional dog handler. He requested to stay on the farm with his wife.
9. PW 5, Swaleh Ali Swaleh said that PW 4 is her aunt, last born sister to his mother. He said he was a driver and whenever PW 4 wanted to visit the farm where the alleged deceased person was staying he would drive her there. He had escorted PW 4 there to purchase the farm which was in two pieces, 7 and 11 acres each separated by a road. On one of the visits, he met the 1st accused person who was introduced as the caretaker of the farm. He stayed with his wife and daughter. Differences arose between the 1st accused person and PW 4 when the 1st accused person failed to account for money given to him to use on the farm. The alleged deceased person later went to stay on the farm with the 1st accused person but as the new caretaker. They later received a report from a neighbour that the farm appeared deserted with nobody in the compound. PW 4 was among the people who went to the farm and did not find the 1st accused person and his family as well as Hemed.
10. PW 5 was involved in the search for Hemed and he accompanied police to Nairobi where the 1st accused person was arrested from.
11. PW 6, Silvia Nthoki is a cousin of the 2nd accused person. She resides in Upper Matasia – Kiserian. She said that the 2nd accused person was staying with the 1st accused person as her husband. The 2nd accused person, while staying in Mombasa asked PW 6 to get for them a rental house and PW 6 got a friend who got a house for them. The two accused persons later went and occupied it. She was the one who met them when PW 2 dropped them after travelling from Kwale County.
12. PW 7, Ali Ahmed Ahmed Badawy said the deceased was a cousin to his mother and therefore his uncle. He was involved in the search of the alleged deceased person.
13. PW 8, Aiman Said Swaleh Hemid is an only brother to the alleged deceased person. He said that he was involved in the investigations of the disappearance of his brother. He was present when 3 pieces of small bones that appeared burnt and believed to be for his brother were recovered at the farm in the course of investigations. Police officers said they would take them for DNA analysis. He provided samples for DNA analysis as he was a sibling of the deceased.
14. PW 9, CIP Philip Mwilu Ngatu conducted investigations in the case. However, he was stood down before he completed his testimony and was never brought back to complete it.
15. PW 10. Joe Mkutu Omido is a Judge of the High Court. While he was a Senior Principal Magistrate serving at Kwale Magistrates Court, he recorded a confession from the 1st accused person.
16. PW 11, Allan Muthee Murithi, was formerly a police officer and was involved in the investigations of the case.
17. The prosecution’s case against the accused persons is that they were staying with the alleged deceased person on the said farm when he went missing without trace. Shortly afterwards, the two also left the farm with all their belongings without informing anybody and relocated to Matasia in Kajiado near Nairobi.
18. Learned counsels for the prosecution and the defence opted not to make any submissions at this stage.
19. At this stage, the issue for this court to determine is whether the prosecution has established a prima facie case against the accused persons to warrant him to be called upon to offer a defence.
20. Section 306(1) of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC), provides that when the evidence of the witnesses for the prosecution has been concluded and the court is of the opinion that there is no evidence that the accused or any one of several accused committed the offence should, 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.
21. Section 306(2) of the CPC provides that when the evidence of the witnesses for the prosecution has been concluded and the court is of the opinion that there is evidence that the accused person or any one or more of several accused persons committed the offence, the court should proceed to put the accused on their defence and thereby the accused is supposed to present evidence in defense.
22. What constitutes a prima facie case to require an accused person to be called upon to offer a defence has been explained in the case of Ramanlal Trambaklal Bhatt v R [1957] E.A 332 at 335, as follows:
“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution the case is merely one “which on full consideration might possibly be thought sufficient to sustain a conviction.”
This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather, hopes the defence will fill the gaps in the prosecution case.
Nor can we agree that the question whether there is a case to answer depends only on whether there is
“some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence.”
A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence. It is true, as Wilson, J., said that the court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively; that final determination can only properly be made when the case for the defence has been heard. It may not be easy to define what is meant by a “prima facie case”, but at least it must mean 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.”
23. From the above exposition, it is imperative that for the court to find at this stage that a prima facie case has been made out and that the accused person has a case to answer, there must be evidence sufficient to warrant a conviction. This court is, however alive to the fact that at this stage, it should not make definitive findings on the evidence tendered thus far, even if it were to find that the accused person has a case to answer. The court is therefore not required to give a reasoned ruling at this point, as was held in the case of Festo Wandera Mukando v Republic [1980] KLR 103, that:
“...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.”
24. I have considered the evidence of the ten (10) prosecution witnesses, since one of them did not complete his testimony. I am satisfied that a prima facie case has been established against each of the accused persons to warrant them to be placed on their defence.
25. Accordingly, the accused persons are hereby placed on their defence under section 306(2) of the CPC. Their rights under Article 50 (2) (i) (k) and (l) of the Constitution as read with Section 306 (2) of the Criminal Procedure Code (Cap. 75) Laws of Kenya shall be explained to him.
26. Orders accordingly.
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 15th day of December 2025.
HON. ANDAYI W. F.
JUDGE
In the presence of: -
1st Accused person in Shimo La Tewa prison appearing virtually.
2nd accused person out on bond, appearing virtually.
Elizabeth Munyari for the 2nd accused person and holding brief for Kuria for the 1st accused person.
Vallerie (Ms) for the State
Ummu - Court Assistant
2. The prosecution closed its case after calling eleven (11) witnesses to support the charge.
3. PW 1, Mwidadi Omari is a government analyst. He carried out a DNA analysis of some blood stained clothes, bones and soil presented to him together with a buccal swab. He found that the bones, clothes and soil generated no DNA profile while the buccal swab generated a female DNA profile. He produced the report of the findings dated 11th March 2022 as evidence in court.
4. PW 2, Erick Oketch Ochieng on 29th September 2021 ferried the accused persons and a small child from their residence at Kikoneni/Chigombero area in Kwale County together with their household items, 3 dogs and two motor cycles, 3 beds and 3 Nigerian bags, among others, in his Toyota Hilux Pick-up registration number KCJ 799M to Matasia in Kajiado County.
5. PW 3, Celine Atieno Oganga, is the mother of the 1st accused person. She said that the 1st accused person had informed her that he was staying in Ramisi area. She later learnt that he was taking care of dogs. On 20th September 2021, he visited her at her residence with the 2nd accused person who he introduced to PW 3 as his wife and a small girl. The 1st accused person left them briefly, informing PW 3 that he was going to look for a vehicle to take some things to Mombasa. In his absence, the 2nd accused person told PW 3 that wherever they were staying Kelvin had some differences with witches who had reported him to the police. When the 1st accuse person returned, he was riding a motorbike and they left in a hurry.
6. Some Arabs later went to her looking for the 1st accused person. They told her that one of them who was staying with the 1st accused person had gone missing and they could not trace him.
7. Later PW 3 was arrested by police in their search for the 1st accused person.
8. PW 4, Maimuna Sharif Omar is a cousin sister to the Hamed Said Saleh, who was the alleged victim of the murder. PW 4 said that Hamed used to stay on the family farm in Chigombero in Kwale County. She also said that the 1st accused person was employed on the farm as a caretaker and professional dog handler. He requested to stay on the farm with his wife.
9. PW 5, Swaleh Ali Swaleh said that PW 4 is her aunt, last born sister to his mother. He said he was a driver and whenever PW 4 wanted to visit the farm where the alleged deceased person was staying he would drive her there. He had escorted PW 4 there to purchase the farm which was in two pieces, 7 and 11 acres each separated by a road. On one of the visits, he met the 1st accused person who was introduced as the caretaker of the farm. He stayed with his wife and daughter. Differences arose between the 1st accused person and PW 4 when the 1st accused person failed to account for money given to him to use on the farm. The alleged deceased person later went to stay on the farm with the 1st accused person but as the new caretaker. They later received a report from a neighbour that the farm appeared deserted with nobody in the compound. PW 4 was among the people who went to the farm and did not find the 1st accused person and his family as well as Hemed.
10. PW 5 was involved in the search for Hemed and he accompanied police to Nairobi where the 1st accused person was arrested from.
11. PW 6, Silvia Nthoki is a cousin of the 2nd accused person. She resides in Upper Matasia – Kiserian. She said that the 2nd accused person was staying with the 1st accused person as her husband. The 2nd accused person, while staying in Mombasa asked PW 6 to get for them a rental house and PW 6 got a friend who got a house for them. The two accused persons later went and occupied it. She was the one who met them when PW 2 dropped them after travelling from Kwale County.
12. PW 7, Ali Ahmed Ahmed Badawy said the deceased was a cousin to his mother and therefore his uncle. He was involved in the search of the alleged deceased person.
13. PW 8, Aiman Said Swaleh Hemid is an only brother to the alleged deceased person. He said that he was involved in the investigations of the disappearance of his brother. He was present when 3 pieces of small bones that appeared burnt and believed to be for his brother were recovered at the farm in the course of investigations. Police officers said they would take them for DNA analysis. He provided samples for DNA analysis as he was a sibling of the deceased.
14. PW 9, CIP Philip Mwilu Ngatu conducted investigations in the case. However, he was stood down before he completed his testimony and was never brought back to complete it.
15. PW 10. Joe Mkutu Omido is a Judge of the High Court. While he was a Senior Principal Magistrate serving at Kwale Magistrates Court, he recorded a confession from the 1st accused person.
16. PW 11, Allan Muthee Murithi, was formerly a police officer and was involved in the investigations of the case.
17. The prosecution’s case against the accused persons is that they were staying with the alleged deceased person on the said farm when he went missing without trace. Shortly afterwards, the two also left the farm with all their belongings without informing anybody and relocated to Matasia in Kajiado near Nairobi.
18. Learned counsels for the prosecution and the defence opted not to make any submissions at this stage.
19. At this stage, the issue for this court to determine is whether the prosecution has established a prima facie case against the accused persons to warrant him to be called upon to offer a defence.
20. Section 306(1) of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC), provides that when the evidence of the witnesses for the prosecution has been concluded and the court is of the opinion that there is no evidence that the accused or any one of several accused committed the offence should, 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.
21. Section 306(2) of the CPC provides that when the evidence of the witnesses for the prosecution has been concluded and the court is of the opinion that there is evidence that the accused person or any one or more of several accused persons committed the offence, the court should proceed to put the accused on their defence and thereby the accused is supposed to present evidence in defense.
22. What constitutes a prima facie case to require an accused person to be called upon to offer a defence has been explained in the case of Ramanlal Trambaklal Bhatt v R [1957] E.A 332 at 335, as follows:
“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution the case is merely one “which on full consideration might possibly be thought sufficient to sustain a conviction.”
This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather, hopes the defence will fill the gaps in the prosecution case.
Nor can we agree that the question whether there is a case to answer depends only on whether there is
“some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence.”
A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence. It is true, as Wilson, J., said that the court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively; that final determination can only properly be made when the case for the defence has been heard. It may not be easy to define what is meant by a “prima facie case”, but at least it must mean 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.”
23. From the above exposition, it is imperative that for the court to find at this stage that a prima facie case has been made out and that the accused person has a case to answer, there must be evidence sufficient to warrant a conviction. This court is, however alive to the fact that at this stage, it should not make definitive findings on the evidence tendered thus far, even if it were to find that the accused person has a case to answer. The court is therefore not required to give a reasoned ruling at this point, as was held in the case of Festo Wandera Mukando v Republic [1980] KLR 103, that:
“...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.”
24. I have considered the evidence of the ten (10) prosecution witnesses, since one of them did not complete his testimony. I am satisfied that a prima facie case has been established against each of the accused persons to warrant them to be placed on their defence.
25. Accordingly, the accused persons are hereby placed on their defence under section 306(2) of the CPC. Their rights under Article 50 (2) (i) (k) and (l) of the Constitution as read with Section 306 (2) of the Criminal Procedure Code (Cap. 75) Laws of Kenya shall be explained to him.
26. Orders accordingly.
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 15th day of December 2025.
HON. ANDAYI W. F.
JUDGE
In the presence of: -
1st Accused person in Shimo La Tewa prison appearing virtually.
2nd accused person out on bond, appearing virtually.
Elizabeth Munyari for the 2nd accused person and holding brief for Kuria for the 1st accused person.
Vallerie (Ms) for the State
Ummu - Court Assistant