1. Paul Maina Keumbe is charged with an offence of murder contrary to section 203 as read with section 204 of the Penal Code.
2. The particulars of the offence are that on the 8th day of May 2022, at Bombure village in Nyamware sublocation of Kisii Sub County within Kisii County, jointly with another not before the court, murdered Joseph Ogwaro Onkeo.
3. On the 9th day of May 2022, at about 7.30 a.m., George Kemunche Ochola (PW1) found the body of the deceased inside his kiosk. The kiosk is next to the road, and it does not have any doors. He did not know how the body found itself there.
4. The medical evidence adduced by Dr. Naomi Ariaga (PW2) was that the cause of the death was due to an abdominal injury caused by force trauma.
5. None of the witnesses who testified implicated the accused in any way. Joseph Kiragori Ongori (PW4) said he arrested the accused as a suspect. The Court of Appeal in the case of Sawe vs Republic [2003] KLR 354 held as follows:
Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.
In the instant case, no evidence was adduced in court explaining why the accused was suspected.
6. In the Black’s Law Dictionary, 10th Edition, prima facie case is defined as follows:
Prima facie case. (1805) I. The establishment of a legally required rebuttable presumption. 2. A party\'s production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party\'s favor.
7. The Court of Appeal in the case of Ramanlal Trambaklal Bhatt vs R [1957] E. A 332 at 334 and 335 defined prima facie case as follows:
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.
8. In the case of Ronald Nyaga Kiura vs Republic [2018] eKLR, it was held:
It is important to note that at the close of prosecution, what is required in law at this stage is for the trial court to satisfy itself that prima facie has been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of Section 211 of the Criminal Procedure Code. A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person. This is well illustrated in the cited Court of Appeal case of RAMANLAL BHAT -VS- REPUBLIC [1957] EA 332. At that stage of the proceedings, the trial court does not concern itself with the standard of proof required to convict, which is normally beyond reasonable doubt. The weight of the evidence, however, must be such that it is sufficient for the trial court to place the accused to his defence. [Emphasis added]
9. Article 50 (2) (i) of the Constitution of Kenya provides:
(2) Every accused person has the right to a fair trial, which includes the right—
(i) to remain silent, and not to testify during the proceedings;
If the accused person chooses to exercise his constitutional right, I cannot convict him based on the evidence on record. This means the prosecution has not established a prima facie case against him. Therefore, I acquit him of the offence of murder under section 306(1) of the Criminal Procedure Code. He is set at liberty unless lawfully held otherwise.
Delivered and signed at Kisii on this 16th day of October 2024
2. The particulars of the offence are that on the 8th day of May 2022, at Bombure village in Nyamware sublocation of Kisii Sub County within Kisii County, jointly with another not before the court, murdered Joseph Ogwaro Onkeo.
3. On the 9th day of May 2022, at about 7.30 a.m., George Kemunche Ochola (PW1) found the body of the deceased inside his kiosk. The kiosk is next to the road, and it does not have any doors. He did not know how the body found itself there.
4. The medical evidence adduced by Dr. Naomi Ariaga (PW2) was that the cause of the death was due to an abdominal injury caused by force trauma.
5. None of the witnesses who testified implicated the accused in any way. Joseph Kiragori Ongori (PW4) said he arrested the accused as a suspect. The Court of Appeal in the case of Sawe vs Republic [2003] KLR 354 held as follows:
Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.
In the instant case, no evidence was adduced in court explaining why the accused was suspected.
6. In the Black’s Law Dictionary, 10th Edition, prima facie case is defined as follows:
Prima facie case. (1805) I. The establishment of a legally required rebuttable presumption. 2. A party\'s production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party\'s favor.
7. The Court of Appeal in the case of Ramanlal Trambaklal Bhatt vs R [1957] E. A 332 at 334 and 335 defined prima facie case as follows:
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.
8. In the case of Ronald Nyaga Kiura vs Republic [2018] eKLR, it was held:
It is important to note that at the close of prosecution, what is required in law at this stage is for the trial court to satisfy itself that prima facie has been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of Section 211 of the Criminal Procedure Code. A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person. This is well illustrated in the cited Court of Appeal case of RAMANLAL BHAT -VS- REPUBLIC [1957] EA 332. At that stage of the proceedings, the trial court does not concern itself with the standard of proof required to convict, which is normally beyond reasonable doubt. The weight of the evidence, however, must be such that it is sufficient for the trial court to place the accused to his defence. [Emphasis added]
9. Article 50 (2) (i) of the Constitution of Kenya provides:
(2) Every accused person has the right to a fair trial, which includes the right—
(i) to remain silent, and not to testify during the proceedings;
If the accused person chooses to exercise his constitutional right, I cannot convict him based on the evidence on record. This means the prosecution has not established a prima facie case against him. Therefore, I acquit him of the offence of murder under section 306(1) of the Criminal Procedure Code. He is set at liberty unless lawfully held otherwise.
Delivered and signed at Kisii on this 16th day of October 2024