https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9425

Republic v Barasa & another (Criminal Case 15 of 2020) [2026] KEHC 9425 (KLR) (29 June 2026) (Ruling) Neutral citation: [2026] KEHC 9425 (KLR) Republic of Kenya In the High Court at Kajiado Criminal Case 15 of 2020 CW Meoli, J June 29, 2026 Between Republic Prosecutor and William Juma Barasa 1st Accused Hezron Muendo Kiilu 2nd Accused Ruling 1.William Juma Barasa and Hezron Muendo Kiilu, hereafter the 1st and 2nd Accused, were jointly charged with Murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars being that on 25th August, 2020 at Amboseli Village, in Loitoktok Sub- county of Kajiado South within Kajiado County, they jointly murdered Michael Mutisya Katoto. 2.They denied the charge and the matter proceeded to full hearing with the prosecution calling eleven witnesses. At the close of the prosecution case, the court must pursuant to Section 306 of the Criminal Procedure Code determine whether a prima facie case has been established against the accused persons to justify placing them on their defence. 3.This ruling relates to the 1st Accused who absconded and failed to attend the initial ruling date, but was subsequently arrested after his co-accused (2nd Accused), had been acquitted vide the court’ s ruling delivered on 30.04.2026. 4.The prosecution case revolves around the events of the night of 24th August 2020 at Amboseli Village Bar in Loitokitok, hereafter the bar. Jackson Oseni (PW1), a security guard, testified that the 1st Accused, whom he knew prior to the incident, arrived at the bar premises at night and later led him to the area where the deceased was. He stated that he witnessed the 1st Accused assault the deceased by slapping and beating him and later forcing him onto a motorcycle. PW1 further testified that the 1st Accused assaulted him as well, using a wooden stick which later broke. He further stated that the 1st Accused also used a torch to hit him. These items were produced as P. Exh. 1, 2a and 2b. Asserting that the 1st Accused thereafter left the scene taking the deceased with him, the witness stated that when the deceased returned, he was injured and in a bad state, and later succumbed to his injuries while in hospital. 5.Agnes Kamene Masila (PW2), corroborated parts of PW1’s testimony, particularly that the 1st Accused, identified as a police officer, was involved in the events of the material night. However, she did not witness the assault herself. 6.David Kiria Wangai (PW6) testified that on the night of 24th August 2020 at about 9:00p.m., while heading home on his motorcycle, he encountered a police officer at the Loitokitok police canteen who requested to be transported to town. He later identified that officer as the 1st Accused. After dropping him and returning, the officer again took the motorcycle before returning it later, and upon checking, PW6 noticed that a chicken he had been carrying was missing, prompting them to retrace their journey. 7.They proceeded to the Amboseli area where PW6 heard commotion from the bar guarded by PW1. On approaching, he found the 1st accused assaulting some men while accusing them of embarrassing a police officer. He observed the said accused attempt to force the said persons onto the motorcycle, and one of them falling off and another fleeing. PW6 stated that although he witnessed a disturbance and assault by the 1st Accused, he could not clearly hear or fully make out all that was happening. He however did not identify the 2nd Accused at the scene of the incident. 8.According to Dr. Richard Njoroge (PW10), who performed the post mortem examination on the deceased, the deceased had sustained multiple injuries, including head trauma and internal bleeding. In his opinion, the cause of death was intracranial hemorrhage due to blunt force trauma. This evidence establishes the fact and cause of death. 9.The investigating officer was CIP Henry Mwiti (PW11) who testified that his investigations implicated the 1st Accused as the person who assaulted the deceased. And that there was no evidence to connect the 2nd Accused in the fatal assault on the deceased. 10.At the close of the prosecution case, the 2nd Accused filed written submissions dated 6th October, 2025. Counsel for the 2nd Accused submitted that the burden was on the prosecution to establish a prima facie case sufficient to warrant the 2nd accused being put on his defence, which burden, in the defence’s view, was not discharged. 11.It was contended that no evidence was adduced to link the 2nd Accused to the offence of murder. Revisiting testimony by PW1 counsel emphasized that the said eyewitness only identified the 1st Accused as the person who assaulted the deceased, while expressly exonerating the 2nd Accused. By admitting inter alia that the 1st Accused was accompanied by another person on a motorcycle whom he did not see and that the 2nd Accused did not participate in assaulting the deceased. Additionally, PW1 attended an identification parade but did not identify the 2nd Accused. The defence argued therefore that the direct exculpatory evidence was in favour of the 2nd Accused. 12.Moreover, it was asserted, the testimonies of PW2, PW3, PW4, PW7 and PW10 who were not eye witnesses did not implicate the 2nd Accused in any way, reinforcing the position that there was no evidence placing him at the scene or linking him to the offence. As was the case with the evidence of PW5 the officer who conducted the identification parade, during which the 2nd Accused was not identified as a participant in the assault. While on his part, PW6 testified that he accompanied the 1st Accused to the bar but expressly denied that he had ever seen the 2nd Accused prior to the date of his testimony in court. 13.As concerns testimony by PW8 and PW9, the defence highlighted the fact that while the latter witness had initially suggested that both Accused persons had been reported to have jointly assaulted the deceased, he conceded under cross-examination that both PW1 and PW2 had only reported an assault by one person. Thus, the evidence of the witness was unreliable whereas documentary records such as the Occurrence Book (OB) entries also refer to reports relating to a single assailant, thereby undermining any attempt to implicate the 2nd accused. 14.Concerning the investigating officer, PW11 the defence highlighted his testimony that upon completion of investigations, he had recommended that only the 1st Accused be charged with murder. Stating that the 2nd Accused was not involved in the fatal assault and that none of the witness statements recorded in the investigation implicated him. Further explaining during cross-examination, that while the 2nd Accused may have been implicated in an earlier, unrelated assault, there was no evidence linking him to the instant murder charge. 15.In conclusion, the defence submitted that the prosecution failed to make out a prima facie case against the 2nd Accused. And citing the principles espoused in Ramanlal Trambaklal Bhatt v R (1957) EA 332 and R v Wachira (1975) EA 262 urged the court to acquit the 2nd Accused. 16.The court has reviewed the evidence on record. At this stage, all that the court ought to establish is whether a prima facie case has been made out against the Accused. In the case of Wibiro alias Musa V. Republic (1960) E.A. 184 the Court of Appeal for East Africa defined the term “prima facie case” as follows:-“By his use of the phrase “prima facie case” the learned judge has left this court in doubt as to his precise meaning. It is a phrase more commonly used at the close of the prosecution’s case than at the end of the whole case at which stage the only question is whether the prosecution has proved its case, on the whole of the evidence, beyond reasonable doubt. The question of what constitutes a prima facie case was dealt with by this court in 1957 in the case of Ramanlal Trambklal Bhatt V. R. (1957) EA 332 (E.A.) and the following passage was taken from the judgment of the court at [age 334 and p. 335:-“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.” 17.With regard to the 1st Accused, there is direct evidence by PW1 placing him at the scene and implicating him in the assault of the deceased. That evidence is further supported by circumstantial evidence through other witnesses as well as the medical findings confirming that the deceased died from injuries consistent with an assault. At this stage, the Court’s duty is to determine whether a prima facie case has been established. In my view, the evidence against the 1st accused meets this threshold. 18.Section 306(2) of the Criminal Procedure Code (CPC) provides that:“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.” 19.Accordingly, the court finds that the prosecution has established a prima facie case against the 1st Accused and that he has a case to answer. The 1st Accused is hereby placed on his defence pursuant to Section 306(2) of the CPC. DELIVERED AND SIGNED AT KAJIADO ON THIS 29TH DAY OF JUNE 2026C. MEOLIJUDGEIn the presence of:For the DPP: Ms. KihumbaFor the Accused: Mr. Kibet h/b for Mr. Ochieng1st Accused: PresentC/A: Lepatei