https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8877

Republic v Arusei (Criminal Case E066 of 2021) [2026] KEHC 8877 (KLR) (27 May 2026) (Ruling) Neutral citation: [2026] KEHC 8877 (KLR) Republic of Kenya In the High Court at Kapsabet Criminal Case E066 of 2021 OA Sewe, J May 27, 2026 Between Republic Prosecutor and Nelson Kirwa Arusei Accused Ruling 1.The accused person, Nelson Kirwa Arusei, was arraigned before the Court on 2nd January 2020 on the Information by the Director of Public Prosecutions that he had committed the offence of murder, thereby contravening the provisions of Section 203 as read with Section 204 of the Penal Code, Chapter 63 of the Laws of Kenya. It was alleged that on the 21st day of December 2019 at Kabiemit Sub-location within Nandi County, he murdered Isaac Kipkemboi Terer. 2.The accused denied the charge and was released on bond pending the hearing and determination of his case. His prosecution is yet to take off in earnest. Numerous adjournments have been granted to the Prosecution to enable them avail their witnesses. At some point a Nolle Prosequi was filed pursuant to Article 157(6)(c) of the Constitution, but the same was rejected by the Court on 10th February 2026. Attempts at plea bargaining also fell through because the witnesses could not be traced. It was in the foregoing circumstances that the Prosecuting Counsel opted to close their case without tendering any evidence. 3.Ordinarily, upon closure of the prosecution case, the Court is required to make a determination, pursuant to Section 306(1) of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya, as to whether a prima facie case has been made out against the accused person to require him to answer. The rationale for this was aptly expressed in Ramanlal Trambaklal Bhatt v Republic [1957] EA 332 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.” 4.There being no evidence tendered herein, it follows that the accused person has no case to answer. Accordingly, a finding of not guilty is hereby entered, and the accused acquitted of the charge of murder pursuant to Section 306(1) of the Criminal Procedure Code. He is hereby set at liberty forthwith unless otherwise lawfully held.It is so ordered. DATED, SIGNED AND DELIVERED AT KAPSABET THIS 27TH DAY OF MAY, 2026…………………….…………………….HON. OLGA SEWEJUDGE