https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7507

ODPP v Ali (Criminal Case E021 of 2021) [2026] KEHC 7507 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7507 (KLR) Republic of Kenya In the High Court at Mombasa Criminal Case E021 of 2021 WM Kagendo., J May 28, 2026 Between ODPP Republic and Riziki Cherono Ali Accused Ruling 1.The three accused had been charged with murder contrary to section 203 as read with section 204 of the Penal Code. Particulars of the offence as per the information is that on 4th June 2021 at Roco Apartment in Shanzu Area within Mombasa County jointly with others not before the court murdered Rowenhorst Herman and the second count was in relation to murder of Evans Pole Bokoro. 2.The three accused denied the offence and a plea of not guilty was entered . Subsequently A2 entered into a Plea Agreement and was convicted. The state hearing proceeded and the state called twenty seven (27) witnesses and closed its case on 15th April 2026. Analysis and Determination 3.The court has considered the evidence adduced by the prosecution side, and the issue for determination is whether the evidence tabled before it suffices to warrant the accused to plead his case as required under Article 50 of the Constitution. 4.Section 306 of the Criminal Procedure Code provides as follows:“When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence shall, 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.”In Republic v Abdi Ibrahim Owl [2013] eKLR a prima facie case was defined as follows: -“Prima facie” is a Latin word defined by Black’s Law Dictionary, 8th Edition as “Sufficient to establish a fact or raise a presumption unless disproved or rebutted”. “Prima facie case” is defined by the same dictionary as “The establishment of a legally required rebuttable presumption”. To digest this further, in simple terms, it means the establishment of a rebuttal presumption that an accused person is guilty of the offence he/she is charged with.” 5.G. Dulu J. (retired) in the case of Republic vs Joseph Shitandi & Another (2014) eKLR held as follows:“A case to answer is a case where if the accused keeps quiet, the evidence of the prosecution should be such that a conviction will result.” 6.The court also relies on May vs. O’Sullivan [1955] 92 CLR 654, where it was held that:“When at the close of the case for the prosecution a submission is made that there is no case to answer, the question to be decided is not whether on the evidence, as it stands, the defendant ought to be convicted, but whether on the evidence, as it stands, he could lawfully be convicted. This is really a question of law.” Conclusion and Disposition 7.Having considered the evidence of the prosecution witnesses the court is satisfied that a prima facie case has been established against the 2 accused persons to warrant them to be placed on their defence. 8.In the foregoing, the court finds that the two accused have a case to answer and are accordingly placed on their defence. Pursuant to the above finding, their rights under Article 50 (2) (i) (k) and (l) of the Constitution as read with Section 306 (2) of the Criminal Procedure Code are guaranteed and explained to the 2 accused persons in the presence of their legal representative and in a language that the accused persons comprehend. DATED SIGNED AND DELIVERED AT MOMBASA THIS 28TH DAY OF MAY 2026.WENDY KAGENDO MICHENIJUDGEPresentThe 2 Accussed Persons and their Advocates Mr. Karani Holding Brief for Mr. Magolo for A1 and Mr. Mutwiri for A2Ms Cherop and Mr Sirima for the State Bebora Court AssistantSigned by/for:HON. LADY JUSTICE WENDY MICHENIMOMBASA HIGH COURT