'1. The accused person herein, Omar Hamisi Mwakabwana through an information dated 13th July 2022, is 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 21st June 2022 at Ukunda township, in Msambweni Sub-County within Kwale County, he murdered Amina Hamadi Mwagude.
2. The prosecution called seven (7) witnesses to support the charge.
3. PW 1, Joyce Mkandoi Mwakanju is a daughter of the deceased. She testified that the accused person, who was staying with her mother, called her on 27th May 2022 at 9.00 p.m. and informed her that there was a fire where they lived. She went there and found her mother burnt all over the body except the face. There was smell of kerosene. They took her to Bakari hospital and later to Msambweni hospital. She passed on later on 21st June 2022 under treatment.
4. PW 2, Jacinta Nduta Mwangi is a clinical officer working at Bakari Medical and Nursing Home. She attended to the deceased at their clinic on 27th May 2022 from around 10.30 p.m. The deceased had burns estimated at 48% which she thought was caused by acid and not paraffin. After the patient was stabilized they referred her to Msambweni County Referral hospital.
5. PW 3, Dr. Harrison Gunya is a medical doctor working at Msambweni hospital. He attended to the deceased at the hospital where he assessed her degree of burns at 85% and completed her P3 form. He said the deceased reported that her boyfriend had poured paraffin on her and set her on fire.
6. PW 4, Cpl Joseph Kibet Rono received the report of the incident involving the deceased at Diani police station and visited the scene. He also visited the deceased at the hospital. PW 1 was at the hospital and she identified the accused person to him when he went to visit the deceased and PW 4 arrested him. The accused took him to a house in Diani where PW 4 recovered a five litre jerrican with kerosene and assorted pieces of burnt clothes.
7. PW 5, Maxwell Lewa works with the government chemist. He analysed various exhibits sent to him by the investigating officer. There was the 5 litre jerrican which on analysis of the liquid inside he found had paraffin.
8. PW 6, Cpl Murimi Musavi of Crime Scene Investigations Unit processed photographs presented to her by the scenes of crime officer.
9. PW 7, Cpl Mohammed Hamisi was the investigating officer.
10. The prosecution’s case against the accused person is that he poured paraffin on the deceased and set her on fire on 27th May 2022 whereupon she sustained severe burns that led to her death after about three weeks on 21st June 2022.
11. Learned counsels for the prosecution and the defence opted not to make any submissions at this stage.
12. At this stage, the issue for this court to determine is whether the prosecution has established a prima facie case against the accused person to warrant him to be called upon to offer a defence.
13. 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.
14. 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.
15. 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.”
16. 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, if no explanation is offered in defence.
17. 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, 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.”
18. I have considered the evidence of the even (7) prosecution witnesses. I am satisfied that a prima facie case has been established against the accused person to warrant him to be placed on his defence.
19. Accordingly, the accused person is hereby placed on his defence under section 306(2) of the CPC. His 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.
20. Orders accordingly.
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 21st day of October 2025.
HON. ANDAYI W. F.
JUDGE
In the presence of: -
Accused person in Shimo La Tewa prison appearing virtually.
Mbwiza Rashid for the accused person.
Vallerie (Ms) for the State
Ummu - Court Assistant
'
2. The prosecution called seven (7) witnesses to support the charge.
3. PW 1, Joyce Mkandoi Mwakanju is a daughter of the deceased. She testified that the accused person, who was staying with her mother, called her on 27th May 2022 at 9.00 p.m. and informed her that there was a fire where they lived. She went there and found her mother burnt all over the body except the face. There was smell of kerosene. They took her to Bakari hospital and later to Msambweni hospital. She passed on later on 21st June 2022 under treatment.
4. PW 2, Jacinta Nduta Mwangi is a clinical officer working at Bakari Medical and Nursing Home. She attended to the deceased at their clinic on 27th May 2022 from around 10.30 p.m. The deceased had burns estimated at 48% which she thought was caused by acid and not paraffin. After the patient was stabilized they referred her to Msambweni County Referral hospital.
5. PW 3, Dr. Harrison Gunya is a medical doctor working at Msambweni hospital. He attended to the deceased at the hospital where he assessed her degree of burns at 85% and completed her P3 form. He said the deceased reported that her boyfriend had poured paraffin on her and set her on fire.
6. PW 4, Cpl Joseph Kibet Rono received the report of the incident involving the deceased at Diani police station and visited the scene. He also visited the deceased at the hospital. PW 1 was at the hospital and she identified the accused person to him when he went to visit the deceased and PW 4 arrested him. The accused took him to a house in Diani where PW 4 recovered a five litre jerrican with kerosene and assorted pieces of burnt clothes.
7. PW 5, Maxwell Lewa works with the government chemist. He analysed various exhibits sent to him by the investigating officer. There was the 5 litre jerrican which on analysis of the liquid inside he found had paraffin.
8. PW 6, Cpl Murimi Musavi of Crime Scene Investigations Unit processed photographs presented to her by the scenes of crime officer.
9. PW 7, Cpl Mohammed Hamisi was the investigating officer.
10. The prosecution’s case against the accused person is that he poured paraffin on the deceased and set her on fire on 27th May 2022 whereupon she sustained severe burns that led to her death after about three weeks on 21st June 2022.
11. Learned counsels for the prosecution and the defence opted not to make any submissions at this stage.
12. At this stage, the issue for this court to determine is whether the prosecution has established a prima facie case against the accused person to warrant him to be called upon to offer a defence.
13. 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.
14. 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.
15. 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.”
16. 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, if no explanation is offered in defence.
17. 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, 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.”
18. I have considered the evidence of the even (7) prosecution witnesses. I am satisfied that a prima facie case has been established against the accused person to warrant him to be placed on his defence.
19. Accordingly, the accused person is hereby placed on his defence under section 306(2) of the CPC. His 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.
20. Orders accordingly.
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 21st day of October 2025.
HON. ANDAYI W. F.
JUDGE
In the presence of: -
Accused person in Shimo La Tewa prison appearing virtually.
Mbwiza Rashid for the accused person.
Vallerie (Ms) for the State
Ummu - Court Assistant
'