https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9342

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAKURU** **CRIMINAL CASE NO. 37 OF 2019** REPUBLIC ........................................................... PROSECUTOR VERSUS DOUGLAS ANZWERE ............................................ 1ST ACCUSED MOSES NYABWEGA KAUNDA .............................. 2ND ACCUSED **RULING** 1. The two accused persons, **Douglas Anzwere** (1st Accused) and **Moses Nyabwega Kaunda** (2nd Accused), stand charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code, Cap 63, Laws of Kenya. 2. The particulars of the charge are that on the 31st day of July 2019 at Rhonda area in Nakuru West Sub-county within Nakuru County, jointly with others not before the court, murdered **Brian Maengwe Kirongo** (hereinafter "the deceased"). 3. This matter has a long and troubled history. The accused were first arraigned on 15th August 2019. They have been in the criminal justice system for approximately 7 years. The trial has been plagued by inordinate delays and several adjournments. 4. At the close of the prosecution's case, this court directed the parties to file and exchange written submissions on whether a prima facie case had been established. The 2nd Accused filed comprehensive submissions dated 8th June 2026. At the time of writing this ruling, the 1st Accused and the Prosecution had not filed their submissions. 5. The prosecution called only two witnesses during the entire trial. The prosecution had indicated it had approximately 8 witnesses, including the Investigating Officer, the Pathologist who conducted the post-mortem, medical officers who treated the deceased, and other eyewitnesses. Despite being granted a "final adjournment" by this court, the prosecution failed to avail the remaining six witnesses. The prosecution closed its case on 3rd December 2025. 6. **PW1, Samuel Kirango Ondieki**, the deceased's father, testified that on the night of 22nd July 2019, the deceased left their home at Rhonda to see a friend. After a half an hour, the deceased was brought back by one Rodgers, bleeding from a head injury. The deceased told PW1 that he had been assaulted by "Douglas and Moses" with a piece of timber. The deceased was taken to Mother Kevin Hospital, then to PGH Nakuru, where he was stitched and discharged. On 24th July 2019, PW1 received a call that the deceased was again at Mother Kevin Hospital with a fresh head injury. He was transferred to PGH Nakuru where he remained for 4 days before he died. PW1 attended the post-mortem but could not recall the date. 7. Under cross-examination, PW1 admitted he did not know the accused prior to the incident and only knew them after the deceased named them. 8. **PW2, Emmanuel Makori**, the deceased's brother, testified that on 24th July 2019, the deceased returned home bleeding and said he had been beaten by "Douglas and Moses." After 1-2 days the deceased left to see his friends and at about 7-7:30 pm, PW2 saw a crowd at a motorcycle stage. He approached and found the deceased lying on the ground with a head injury. He saw Moses (2nd Accused) disappearing with a rungu and he took the deceased to PGH Nakuru. PW2 stated that 2nd Accused chased him with a rungu when he attended a meeting alongside the deceased to discuss their issues with the accused persons.PW2 identified both accused in court. He stated he knew both accused prior to the incident but had never collided with them. 9. Under cross-examination, PW2 admitted that: He was not with the deceased when he sustained the first injury. He did not know where the deceased went on the night of the first injury. He saw 2nd Accused beating the deceased, but the 1st Accused did not beat the deceased. He was 17 years old at the time of recording his statement. He was not going to school at the time and was doing casual jobs. The deceased was not spending nights at home with the family. 10. PW2's evidence regarding 1st Accused is that he heard the deceased say that "Douglas and Moses" had beaten him. 11. The 2nd Accused filed written submissions challenging the existence of a prima facie case. The key arguments were; * The prosecution failed to prove the ingredients of murder under Section 203 and Section 206 of the Penal Code. * No witness saw the 2nd accused commit the act. * No murder weapon was produced. * The investigating officer was not called to explain the decision to charge the accused or the unlawful detention. * No post-mortem report was produced to prove the cause of death. * The evidence was either hearsay or circumstantial, and it did not meet the standard set in ***Ramanlal Trambaklal Bhatt v Republic [1957] EA 332*** and ***Joan Chebichii Sawe v Republic [2003] eKLR.*** * The prosecution's case was "so weak and tenuous" that no reasonable tribunal could convict on it. * The unlawful detention of the 2nd accused from 31st July 2019 to 15th August 2019 violated Article 49 of the Constitution. 12. The 2nd Accused prayed to be acquitted and discharged at this stage. 13. The 1st Accused did not file any submissions. This court will therefore consider the case against the 1st Accused based solely on the evidence adduced by the prosecution and the applicable law. 14. I have taken note of the submissions by the 2nd Accused regarding the alleged unlawful detention of the accused from 31st July 2019 to 15th August 2019, a period exceeding the 24-hour limit prescribed by Article 49(1)(f) of the Constitution. However, this court is mindful of the settled position in law that a violation of pre-trial detention rules does not vitiate subsequent criminal proceedings. 15. In ***Julius Kamau Mbugua v Republic [2010] KECA 109 (KLR),*** the Court of Appeal held that the right to personal liberty under Section 72(3)(b) of the former Constitution was distinct from the right to a fair trial within a reasonable time under Section 77(1), and that "the breach of the right to personal liberty is not trial related”. The court further declared that an acquittal or discharge on the grounds of unlawful pre-trial detention would be a "disproportionate, inappropriate and draconian remedy" that would compromise public security. The proper remedy for such a violation lies in a claim for damages for violation of constitutional rights, not in the termination of criminal proceedings. 16. This court's determination on whether the accused have a case to answer is therefore based on the sufficiency of the evidence adduced by the prosecution, not on any pre-trial procedural irregularities. The accused, if they so wish, may pursue a separate remedy for the alleged violation of their rights under Article 49 of the Constitution. 17. The legal framework governing a ruling on whether an accused has a case to answer is found in Section 306(1) and (2) of the Criminal Procedure Code, which provides; *(1) 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.* *(2) When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each such accused person of his right to address the court, either personally or by his advocate (if any), to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether it is intended to call any witnesses as to fact other than the accused person himself; and upon being informed thereof, the judge shall record the fact.* 18. The locus classicus on the definition of a prima facie case is ***Ramanlal Trambaklal Bhatt v Republic [1957] EA 332***, where the Court of Appeal for Eastern Africa, held 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 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."* 19. In ***Republic v David Mwangi Githambu [2020] KEHC 9311 (KLR),*** the court emphasized that at this stage, the court is not required 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. However, the court must be satisfied that the evidence, taken at its highest, could sustain a conviction. 20. In ***Bukenya and Others v Uganda [1972] EA 549***, the court held; *"The prosecution must make available all witnesses necessary to establish the truth, even if their evidence may be inconsistent."* The court further stated; *"Where the evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution*." 21. The principles governing circumstantial evidence are well settled. In R. ***v Kipkering Arap Koske & Another (1949) 16 EACA 135***, the Court of Appeal for Eastern Africa established the test for conviction on circumstantial evidence. These principles were subsequently adopted and restated by the Court of Appeal in ***Joan Chebichii Sawe v Republic [2003] KECA 182 (KLR).*** In that case, the court held: *"In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt."* The court further stated: *"Circumstantial evidence can be a basis of a conviction only if there is no other existing circumstances weakening the chain of circumstances relied on."* And importantly: *"The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused."* Finally, the court held: *"Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt."* 22. To establish a prima facie case of murder, the prosecution must adduce evidence on the following ingredients: (a) The death of the deceased. (b) That the death was unlawfully caused by an act or omission of the accused. (c) That the accused acted with malice aforethought. (d) Identification of the accused as the perpetrator. 23. The death of the deceased was confirmed through the testimony of PW1 and PW2. However, no post-mortem report was produced to medically confirm the death or the cause of death. While the fact of death appears to be established, this ingredient is incompletely proved due to the absence of medical evidence. 24.On the cause of death, the prosecution relies on the evidence of PW2, who stated that he saw the 2nd Accused (Moses) disappearing after beating the deceased with a rungu. However; * No murder weapon was produced in court. * No medical evidence linked the injuries to the accused. * No post-mortem report was produced to confirm that the deceased died as a result of the alleged assault. 25. The evidence regarding 1st Accused (Douglas) is even weaker. PW2 stated that 1st accused did not chase him or beat the deceased. The only evidence against 1st Accused is the deceased's statement to PW1 and PW2 which is a hearsay. 26. The deceased's statement to PW1 ("it was Douglas and Moses") is hearsay and cannot be relied upon as direct evidence of the accused's involvement, as the deceased did not testify in court. 27. The Court of Appeal in ***Juma v Republic [2002] 1 EA 445*** held that where the cause of death is not established by medical evidence, the prosecution's case is fatally defective. I find that the prosecution has not established a prima facie case on this ingredient. 28.The ingredient of malice aforethought is defined under Section 206 of the Penal Code. The prosecution must prove an intention to cause death or grievous harm, or knowledge that the act would probably cause death. The prosecution presented no evidence of; * A pre-existing motive or grudge. * The accused's state of mind at the time of the alleged assault. * Medical evidence demonstrating the nature and severity of the injuries or whether they were inflicted with intent to cause death. * The post-mortem report, which could have indicated the severity of the injuries. 29. The evidence falls far short of establishing malice aforethought. I find that the prosecution has not established a prima facie case also on this ingredient. 30. Identification of the accused is crucial in this case. The law on identification is well settled. In ***Wanjohi v Republic [2015] eKLR***, the Court of Appeal held that identification evidence must be watertight to sustain a conviction. In ***Njuguna v Republic [2015] eKLR***, the court emphasized that where identification is based on a single witness, the court must scrutinize the evidence with great care. 31. PW1 did not know the accused prior to the incident. His evidence is based solely on the deceased's hearsay statement. PW2 knew the 1st Accused prior to the incident but stated that 1st Accused did not chase him or beat the deceased. 32. PW2's identification of 2nd Accused is on the basis that he claims to have seen 2nd accused disappearing with a rungu. However, this evidence is uncorroborated. No weapon was produced.PW2 was 17 years old at the time and admitted he was not with the deceased when the first injury occurred. 33. I find that the prosecution's evidence on identification is tenuous and unreliable. A conviction based on this evidence would be unsafe. 34. The prosecution failed to produce the post-mortem report or call the pathologist who conducted it. This is a fatal omission in a murder trial. Where the cause of death is not established by medical evidence, the prosecution's case is fatally defective. The absence of a post-mortem report means the court cannot determine the exact cause of death, whether the deceased died from the alleged assault or from other causes. The court cannot assess the nature and severity of the injuries. The court cannot link the injuries to the accused. It is a fatal gap in the prosecution's case. 35. The Investigating Officer did not testify. This is a crucial omission because the Investigation Officer would have explained why the accused were charged and what evidence linked them to the crime. 36. Applying the principle in ***Bukenya and Others v Uganda [1972] EA 549,*** I infer that the evidence of the uncalled witnesses would have been adverse to the prosecution. As the court stated in that case, where the evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution. This inference is particularly apt in this case because the prosecution's evidence was barely adequate, consisting of only two witnesses out of approximately eight identified witnesses. 37. The prosecution's failure to file submissions is a serious matter. It indicates a lack of diligence and a failure to take these proceedings seriously. 38. I find that the prosecution's case, taken at its highest, the evidence is so tenuous, inherently weak, and riddled with gaps that no reasonable tribunal could properly convict on it. The prosecution's case is not a borderline case where the strength or weakness depends on the view to be taken of a witness's reliability; rather, the evidence is fundamentally deficient as a matter of law. To place the accused persons on their defence at this stage would be to ask them to fill gaps that the prosecution itself has failed to fill. 39. This is not a case where the court can say that a reasonable tribunal, properly directing its mind to the law and the evidence, could convict if no explanation is offered by the defence. 40. Pursuant to Section 306(1) of the Criminal Procedure Code, I hereby make the following orders: 1. ***The 1st Accused, DOUGLAS ANZWERE, is found to have no case to answer and is hereby acquitted and discharged.*** 2. ***The 2nd Accused, MOSES NYABWEGA KAUNDA, is found to have no case to answer and he is hereby acquitted and discharged.*** 3. ***Both accused are hereby set at liberty forthwith unless otherwise lawfully held.*** 41. It is so ordered. **Dated, delivered and signed at Nakuru this 29th day of June 2026.** **....................................** **J. K. SERGON** **JUDGE** **In the presence of:** Jamleck/Rutoh – C/A N/A Ooga for 2nd accused N/A Cheruto for 1st Accused Miss Anyumba for the ODPP