https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11197

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MARSABIT** **CRIMINAL CASE NO. E004 OF 2025** **REPUBLIC ……………………………………………….…..PROSECUTION** **=VERSUS=** **MOHAZI ABAJOBIR…………..………….…………………… ACCUSED** # RULING 1. The accused person, ***MOHAZI ABAJOBIR*** was charged with the offence of murder contrary to ***section 203 as read section 204 of the Penal Code.*** The particulars were that on the 11th day of July 2025, at Urban Towers Hotel in Moyale town, within Marsabit county, he murdered one **ABITI YOHANES**. 2. The prosecution called Six (6) witnesses in support of their case and issue before me at this stage is to determine whether the evidence so far adduced warrants calling upon the accused to defend himself. In other words, does the accused have a case to answer? In **Republic vs. 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.*** **4.** In **Ramanlal Trambaklal Bhatt v. R [1957] E.A 332 at 334 and 335,** the court stated 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 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.”*** 4. The question that this court has to deal with and answer at this stage is therefore, is whether based on the evidence before this Court, the Court after properly directing its mind to the law and the evidence may, as opposed to will, convict if the accused chose to give no evidence. It was therefore held in **Ronald Nyaga Kiura vs. Republic [2018] eKLR** wherein paragraph 22 it is stated as follows: ***“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.*** 1. I have considered the evidence so far adduced by the prosecution. PW1, the manager at Al Yusra hotel, confirmed that on the material night, the accused and the deceased were working together at the hotel bakery and were the only ones on duty, which fact had earlier established, when he passed by and found the two working therein. After about 30 minutes they had commotion coming from the said bakery and dashed to go check on what the issue was. He found the deceased sprawling on the ground and had been stabbed on his stomach, while the accused person, was nowhere to be seen. They carried the deceased to the hospital which was situated within the said building, where he unfortunately passed on while being attended too. 2. PW2, the nurse who attended to the deceased confirmed that he had suffered a fresh deep stab wound injury, which fact was corroborated by PW5 Dr Adan Hassan Ali, who performed the post mortem examination on the deceased body. He confirmed that the stab wound had penetrated about (6cm by 3cm) deep into the deceased intestines and spleen. He established that cause of death was internal bleeding, secondary to Spleen injury caused by penetrating sharp object 3. PW3, PW4 and PW6 were all police officers, who visited the scene and documented the same. They established contacts with the Ethiopian police, who looked for and arrested the accused person and handed him back to Kenyan authorities. After completion of their investigation, the charged the accused person with the offence before court. 4. Upon review of the above evidence am satisfied that the prosecution has established a *prima facie* case that the accused has a case to answer, especially since he was the last person seen with the deceased. This does not imply that the said evidence on record meets the threshold for convicting the said accused, but it is sufficient to call him to give his side of the story before the court can consider all the evidence in totality at the end of the trial. 5. I accordingly place the accused person on his defence. 6. It is so ordered. **DATED, DELIVERED AND SIGNED AT MARSABIT THIS 23rd DAY OF JULY, 2026.** **FRANCIS RAYOLA OLEL** **JUDGE** Delivered in open court this **23rd** day of **JULY, 2026.** In the presence of: - …………………………. Accused Person ……………………………. For ODPP ……………………………..Court Assistant