1. The accused persons herein Raul Abdul Noor (1st accused person) and Fikirini Juma Hassan (2nd accused person) are jointly 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 that on the 28th July 2019 at Denyenye village, Ngombeni location in Matuga Sub-County within Kwale County, jointly murdered Ali Noor Ali.
2. The 1st accused person who was reported to have been a minor at the time of the alleged offence was remanded at Likoni Children’s Home from which he was subsequently reported to have escaped. The 2nd accused person initially took plea alone. The 1st accused person was apprehended and on 20/6/2022, the two accused persons took plea on the joint charge. Each pleaded not guilty and the case was set down for hearing.
3. The prosecution case was heard and concluded by my sister Hon. Lady Justice Anne Ong’ijo. I took over when parties had been directed to file submissions on case to answer. The accused persons opted to have the case to proceed from where Hon. Lady Justice Ong’ijo had left it.
4. The prosecution called eleven (11) witnesses to support the charge. At this stage the question for this court to determine is whether the prosecution has established a prima facie case against the accused persons to warrant them to be placed on their defence.
5. 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.
6. 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.
7. 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.”
8. From the above decision, it is imperative that for the court to find at this case that a prima facie case has been made out and that the accused persons have 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 was to find that the accused persons or either of them 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.”
9. I have considered the evidence of the eleven (11) prosecution witnesses, and the submissions by learned counsel for the accused persons and I am satisfied that a prima facie case has been established against each of the accused persons to warrant him to be placed on his defence.
10. 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 them.
11. Orders accordingly.
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 24th day of September 2024
In the presence of: -
The 1st accused in person from Shimo La Tewa prison.
The 2nd accused in person from Shimo La Tewa prison.
Waziri for the 1st accused person.
Waziri for the 2nd accused person.
Mr. Ngiri for the Respondent
Etropia - Court Assistant
2. The 1st accused person who was reported to have been a minor at the time of the alleged offence was remanded at Likoni Children’s Home from which he was subsequently reported to have escaped. The 2nd accused person initially took plea alone. The 1st accused person was apprehended and on 20/6/2022, the two accused persons took plea on the joint charge. Each pleaded not guilty and the case was set down for hearing.
3. The prosecution case was heard and concluded by my sister Hon. Lady Justice Anne Ong’ijo. I took over when parties had been directed to file submissions on case to answer. The accused persons opted to have the case to proceed from where Hon. Lady Justice Ong’ijo had left it.
4. The prosecution called eleven (11) witnesses to support the charge. At this stage the question for this court to determine is whether the prosecution has established a prima facie case against the accused persons to warrant them to be placed on their defence.
5. 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.
6. 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.
7. 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.”
8. From the above decision, it is imperative that for the court to find at this case that a prima facie case has been made out and that the accused persons have 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 was to find that the accused persons or either of them 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.”
9. I have considered the evidence of the eleven (11) prosecution witnesses, and the submissions by learned counsel for the accused persons and I am satisfied that a prima facie case has been established against each of the accused persons to warrant him to be placed on his defence.
10. 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 them.
11. Orders accordingly.
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 24th day of September 2024
In the presence of: -
The 1st accused in person from Shimo La Tewa prison.
The 2nd accused in person from Shimo La Tewa prison.
Waziri for the 1st accused person.
Waziri for the 2nd accused person.
Mr. Ngiri for the Respondent
Etropia - Court Assistant