REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
CRIMINAL CASE NO. E002 OF 2023
REPUBLIC………………………………………………………..............................PROSECUTOR
VERSUS
SAID HUSSEIN MWANARI………………………………...……..........................…ACCUSED
RULING ON CASE TO ANSWER
1. The accused person herein Said Hussein Mwanari 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. The particulars of the offence are that on the 2 nd December 2023 at Shamu Village, Diani Location within Kwale County he murdered Mwanakombo Hussein Siwa.
2. The accused person was arraigned before court on 19 th December 2023 on an information charging him with the offence of murder as above. The court inter alia directed that he be taken for psychiatric examination before plea was taken. This was done and in a report dated 27 th December 2023, Dr. Said Salim Mohamed of Portreitz Sub-County hospital filed a report that the accused person had denied any prior history of mental illness but admitted to use chang’aa. He did not have any symptom of mental illness to report and in his opinion he was fit to plead.
3. Plea was taken on 22 nd January 2024 whereat the charges were read to him and the accused person pleaded not guilty to the information.
4. Subsequently, at the request of the prosecution and learned counsel for the defence, the accused person was taken for a second psychiatric examination and in a report dated 29 th May 2024 filed by Dr. Ahlaam Mohamed, he found that the accused had a longstanding substance induced psychosis. The doctor found that the accused was fit to plead.
5. However, his family members insisted that they wished to be present during the psychiatric examination and the court ordered that the same be complied with. In a report dated 26 th June 2024, filed by Dr. Janbibi Y. Mohamed, consultant psychiatrist at Portreitz Sub-County hospital, the doctor indicated that the accused person had been started on medication for drug induced psychosis. He had a history of abusing alcohol, cannabis and muguka. The doctor found that the accused had a drug induced psychosis and was not fit to plead. He recommended that accused person to continue treatment and review in one month.
6. The court ordered and he was escorted to Mathari National Teaching and Referral hospital for medical care. In a report dated 23 rd September Dr. Olando indicated that the accused person had been under his care from 27 th June 2024 and he had now become capable of making his defence.
7. The accused person was therefore brought back to court and on 24 th June 2025, the information was put to him afresh to which he responded that it was not true and a plea of not guilty was entered.
8. The prosecution case proceeded for hearing on various dates from 24 th June 2025 to 11 th November 2025 when the case for the prosecution was closed. The prosecution called six (6) witnesses to support the charge.
9. PW 1, Hadija Hussein Mchafu is a daughter to the deceased and brother to the accused person. She testified that they were at home at the time with their mother and the accused person. She saw the accused carry a brick stone holding it with both hands. With all his might he hit the deceased on the head. The deceased was seated on a chair facing the other side when the accused hit her from behind. She tried to intervene to stop her but he overpowered her and the accused hit the deceased three times and finished her. PW 1 screamed for help and neighbors rushed in. The accused did not leave the scene but remained there throughout.
10. PW 2 Bakari Hussein a brother to the accused person testified that on the same evening he had just left home to watch football on TV at Ibiza but felt uneasy and decided to go back. Upon arrival at home he found a crowd of people gathered there surrounding a person lying on the ground. On pushing through he saw his mother covered lying dead and a broken chair by her side. PW1 informed him that the accused had hit the deceased on the head from behind using a stone.
11. PW 3 Ali Omar Masamuhi a chairman of Shamu village testified that he knew the accused who used to stay with the deceased, his brother and sister. On 2 nd December 2023 he received a call from his friend Hamisi who informed him that the accused had killed the deceased by hitting her with stones. He proceeded to the home and found a crowd of people as well as a body lying at the front of the house. Police arrived and took the body away. The accused was being beaten by members of the public. He rescued the accused from the members of the public. He saw stones on the ground.
12. PW 4, Dr. Riziki Wasi of Msambweni County Referral hospital conducted a post mortem on the body of the deceased on 3 rd December 2023. She found the cause of death to be severe traumatic brain injury secondary to blunt force trauma.
13. PW 5, IP John Daruba visited the scene on the material evening. He testified that upon arrival at Shama area he found a large crowd. He found a female body lying on the ground. The body had a visible deep wound on the head. Apart from the body there were three big stones and blood stains together with a plastic chair with blood stains. A male adult, the accused person, had both his hands and feet tied with a manilla rope. He was the prime suspect in the death of the accused.
14. PW 6 PC Wesley Omenta was the investigating officer. He visited the scene in company of PW 5 and other police officers. He testified that upon arrival at the scene he found the body of an adult female lying down covered in a pool of blood. The body had 3 wounds on the head. Beside the body were coral stones all blood stained and a broken plastic chair. There was another person, the accused person, tied with manilla rope on his hands and legs. The witness PW1 informed him that the person tied with the manilla rope was the prime suspect.
15. Learned counsel for the accused person filed submissions dated 30 th April 2026 on case to answer. He submitted that the prosecution had failed to establish a prima facie case against the accused person and he should be acquitted of the charge. Further that the accused person was not mentally fit to stand trial.
16. At this stage the question for this Court to determine is whether the prosecution has established a prima facie case against the accused person to warrant him to be placed on his Defence.
17. Section 306 (1) of the Criminal Procedure Code (Cap. 75) Laws of Kenya 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 the several accused committed the offence should, after hearing, if necessary, any arguments which the advocate for the prosecution or the defense may desire to submit, record a finding of not guilty.
18. Section 306 (2) of the CPC provides that when the evidence of the witness 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 defense and thereby the accused is supposed to present evidence in defense.
19. A prima facie case is one which requires an accused person to be called upon to offer a defence as explained in the case of Ramanlal Trambaklal Bhatt V R [1957] EA 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 case the case is merely one which on full consideration might possibly be thought sufficient to sustain a conviction.”
20. From the above decision, it is imperative that for a court to find that there exists a prima facie case, there must be evidence sufficient to warrant a conviction.
21. This court is however alive to the fact that at this stage, it should not make definitive findings on the evidence tendered this far. The court is therefore not required to give a reasoned ruling at this point, as was held in the cases cited by learned counsel for the accused person of Eustace Kibera Karimi v Republic [1979] KEHC 19 (KLR) where the High Court stated thus:
“When the prosecution case was closed, the defence submitted that there was no case for the appellant to answer, which submission was rejected in a detailed ruling, a practice which should not, at all events generally, be followed as Roskill L J pointed out in R v Falconer-Atlee (1974) 58 Cr App Rep 348, 356, in relation to a jury case:
If he was going to leave the case to the jury, he should have left it saying no more than that there was evidence to go to the jury …
Roskill L J thought that in the circumstances of the case the trial judge had been unwise, as he put it, because in giving his reasons he expressed a view, albeit only a tentative view on the facts. The appeal was allowed.”
22. Similarly, in the case of Festo Wandera Mukando and another v Republic [1980] KEHC 3 (KLR) , it was held that:
“... we once more 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, in an extreme case, may require an appellate court to set aside an otherwise sound judgment. Where a submission of “no case” 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 an end to the case or the count or counts concerned.”
23. I have considered the evidence of the six (6) prosecution witnesses, and the submissions by learned counsel for the accused and I am satisfied that a prima facie case has been established against the accused person to warrant him to be called upon to offer a defence.
24. 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.
25. Orders accordingly
Ruling delivered , dated, and signed in Open Court and on the Virtual platform Microsoft Teams this 28 th day of July 2026.
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The accused person present at Shimo La Tewa prison.
Kabiaro for the accused person.
Vallerie (Ms) for the State
Ummu - Court Assistant
HON. ANDAYI W. F.
IN THE HIGH COURT OF KENYA AT KWALE
CRIMINAL CASE NO. E002 OF 2023
REPUBLIC………………………………………………………..............................PROSECUTOR
VERSUS
SAID HUSSEIN MWANARI………………………………...……..........................…ACCUSED
RULING ON CASE TO ANSWER
1. The accused person herein Said Hussein Mwanari 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. The particulars of the offence are that on the 2 nd December 2023 at Shamu Village, Diani Location within Kwale County he murdered Mwanakombo Hussein Siwa.
2. The accused person was arraigned before court on 19 th December 2023 on an information charging him with the offence of murder as above. The court inter alia directed that he be taken for psychiatric examination before plea was taken. This was done and in a report dated 27 th December 2023, Dr. Said Salim Mohamed of Portreitz Sub-County hospital filed a report that the accused person had denied any prior history of mental illness but admitted to use chang’aa. He did not have any symptom of mental illness to report and in his opinion he was fit to plead.
3. Plea was taken on 22 nd January 2024 whereat the charges were read to him and the accused person pleaded not guilty to the information.
4. Subsequently, at the request of the prosecution and learned counsel for the defence, the accused person was taken for a second psychiatric examination and in a report dated 29 th May 2024 filed by Dr. Ahlaam Mohamed, he found that the accused had a longstanding substance induced psychosis. The doctor found that the accused was fit to plead.
5. However, his family members insisted that they wished to be present during the psychiatric examination and the court ordered that the same be complied with. In a report dated 26 th June 2024, filed by Dr. Janbibi Y. Mohamed, consultant psychiatrist at Portreitz Sub-County hospital, the doctor indicated that the accused person had been started on medication for drug induced psychosis. He had a history of abusing alcohol, cannabis and muguka. The doctor found that the accused had a drug induced psychosis and was not fit to plead. He recommended that accused person to continue treatment and review in one month.
6. The court ordered and he was escorted to Mathari National Teaching and Referral hospital for medical care. In a report dated 23 rd September Dr. Olando indicated that the accused person had been under his care from 27 th June 2024 and he had now become capable of making his defence.
7. The accused person was therefore brought back to court and on 24 th June 2025, the information was put to him afresh to which he responded that it was not true and a plea of not guilty was entered.
8. The prosecution case proceeded for hearing on various dates from 24 th June 2025 to 11 th November 2025 when the case for the prosecution was closed. The prosecution called six (6) witnesses to support the charge.
9. PW 1, Hadija Hussein Mchafu is a daughter to the deceased and brother to the accused person. She testified that they were at home at the time with their mother and the accused person. She saw the accused carry a brick stone holding it with both hands. With all his might he hit the deceased on the head. The deceased was seated on a chair facing the other side when the accused hit her from behind. She tried to intervene to stop her but he overpowered her and the accused hit the deceased three times and finished her. PW 1 screamed for help and neighbors rushed in. The accused did not leave the scene but remained there throughout.
10. PW 2 Bakari Hussein a brother to the accused person testified that on the same evening he had just left home to watch football on TV at Ibiza but felt uneasy and decided to go back. Upon arrival at home he found a crowd of people gathered there surrounding a person lying on the ground. On pushing through he saw his mother covered lying dead and a broken chair by her side. PW1 informed him that the accused had hit the deceased on the head from behind using a stone.
11. PW 3 Ali Omar Masamuhi a chairman of Shamu village testified that he knew the accused who used to stay with the deceased, his brother and sister. On 2 nd December 2023 he received a call from his friend Hamisi who informed him that the accused had killed the deceased by hitting her with stones. He proceeded to the home and found a crowd of people as well as a body lying at the front of the house. Police arrived and took the body away. The accused was being beaten by members of the public. He rescued the accused from the members of the public. He saw stones on the ground.
12. PW 4, Dr. Riziki Wasi of Msambweni County Referral hospital conducted a post mortem on the body of the deceased on 3 rd December 2023. She found the cause of death to be severe traumatic brain injury secondary to blunt force trauma.
13. PW 5, IP John Daruba visited the scene on the material evening. He testified that upon arrival at Shama area he found a large crowd. He found a female body lying on the ground. The body had a visible deep wound on the head. Apart from the body there were three big stones and blood stains together with a plastic chair with blood stains. A male adult, the accused person, had both his hands and feet tied with a manilla rope. He was the prime suspect in the death of the accused.
14. PW 6 PC Wesley Omenta was the investigating officer. He visited the scene in company of PW 5 and other police officers. He testified that upon arrival at the scene he found the body of an adult female lying down covered in a pool of blood. The body had 3 wounds on the head. Beside the body were coral stones all blood stained and a broken plastic chair. There was another person, the accused person, tied with manilla rope on his hands and legs. The witness PW1 informed him that the person tied with the manilla rope was the prime suspect.
15. Learned counsel for the accused person filed submissions dated 30 th April 2026 on case to answer. He submitted that the prosecution had failed to establish a prima facie case against the accused person and he should be acquitted of the charge. Further that the accused person was not mentally fit to stand trial.
16. At this stage the question for this Court to determine is whether the prosecution has established a prima facie case against the accused person to warrant him to be placed on his Defence.
17. Section 306 (1) of the Criminal Procedure Code (Cap. 75) Laws of Kenya 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 the several accused committed the offence should, after hearing, if necessary, any arguments which the advocate for the prosecution or the defense may desire to submit, record a finding of not guilty.
18. Section 306 (2) of the CPC provides that when the evidence of the witness 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 defense and thereby the accused is supposed to present evidence in defense.
19. A prima facie case is one which requires an accused person to be called upon to offer a defence as explained in the case of Ramanlal Trambaklal Bhatt V R [1957] EA 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 case the case is merely one which on full consideration might possibly be thought sufficient to sustain a conviction.”
20. From the above decision, it is imperative that for a court to find that there exists a prima facie case, there must be evidence sufficient to warrant a conviction.
21. This court is however alive to the fact that at this stage, it should not make definitive findings on the evidence tendered this far. The court is therefore not required to give a reasoned ruling at this point, as was held in the cases cited by learned counsel for the accused person of Eustace Kibera Karimi v Republic [1979] KEHC 19 (KLR) where the High Court stated thus:
“When the prosecution case was closed, the defence submitted that there was no case for the appellant to answer, which submission was rejected in a detailed ruling, a practice which should not, at all events generally, be followed as Roskill L J pointed out in R v Falconer-Atlee (1974) 58 Cr App Rep 348, 356, in relation to a jury case:
If he was going to leave the case to the jury, he should have left it saying no more than that there was evidence to go to the jury …
Roskill L J thought that in the circumstances of the case the trial judge had been unwise, as he put it, because in giving his reasons he expressed a view, albeit only a tentative view on the facts. The appeal was allowed.”
22. Similarly, in the case of Festo Wandera Mukando and another v Republic [1980] KEHC 3 (KLR) , it was held that:
“... we once more 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, in an extreme case, may require an appellate court to set aside an otherwise sound judgment. Where a submission of “no case” 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 an end to the case or the count or counts concerned.”
23. I have considered the evidence of the six (6) prosecution witnesses, and the submissions by learned counsel for the accused and I am satisfied that a prima facie case has been established against the accused person to warrant him to be called upon to offer a defence.
24. 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.
25. Orders accordingly
Ruling delivered , dated, and signed in Open Court and on the Virtual platform Microsoft Teams this 28 th day of July 2026.
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The accused person present at Shimo La Tewa prison.
Kabiaro for the accused person.
Vallerie (Ms) for the State
Ummu - Court Assistant
HON. ANDAYI W. F.