https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10015

Republic v Bashir (Criminal Case E011 of 2024) [2026] KEHC 10015 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KEHC 10015 (KLR) Republic of Kenya In the High Court at Kabarnet Criminal Case E011 of 2024 TM Matheka, J July 3, 2026 Between Republic Prosecution and Ayub Bashir Accused Ruling 1.The accused Ayub Bashiris charged with Murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that on the 1st day of November, 2024 at Kampi Samaki village Akorian Sub-Location in Baringo North Sub-County within Baringo County murdered Magdaline Chesang. 2.The case for the prosecution is that the deceased was found lying dead on the Roadside while bleeding profusely on her left side of the head suspected to have been hit by a sharp object. 3.The postmortem was conducted on 7/11/2024 and the pathologist found cause of death to be Acute Head Injury due to the blunt force trauma following assault. 4.The prosecution called 6 witnesses to prove their case and closed their case. 5.At the close of the case – the court is to determine which option under section 306 of the Criminal Procedure Code states:(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. 6.Pw1, Cousin to deceased, PW2 cousin to accused and Pw3 neighbour to accused – all testified how they found the deceased dead by the Roadside near where she lived, after members of the public first saw the body. None of them saw who assaulted the deceased – There was a story about the accused person having threatened the accused for causing the death of this wife. 7.Pw5, the Investigating Officer No. 239267 CIP Rioba Kimenge told the court that he believed the story about the threat, put together the file by recording statement of Pw1, Pw2 and Pw3 – then recommended that the accused be charged. 8.Pw4 conducted the postmortem, Pw6 arrested the accused person. Asked why he recommended the charge against the accused person; the Investigating Officer told the court;“No murder weapon was recovered. No one saw the accused leaving the scene. There was no eye witness. No exhibit was recovered from house of accused. He would not confirm that the injuries were inflicted by the accused, he relied on witness accounts to charge the accused; that Accused had issued threats to deceased because she was the cause of the death of accused’s wife; that the deceased had not reported the threats.” 9.The Investigating Officer did not investigate anything – he did not investigate the alleged threats to the life of deceased by accused, he had no idea how the wife of the accused died and how the deceased could have been suspected of causing her death to warrant the alleged threats from the accused. 10.Pw6 who arrested the accused said he knew the accused, said accused had a wife who died following an illness. 11.The prosecution had an obligation to establish the ingredients of the offence as per section 203 and 206 of the Penal Code – There is evidence of death, and cause of death – of the deceased. It is not in doubt that deceased died from an unlawful cause – the pathologist said it was blunt force trauma. However, other than the alleged testimony of witnesses that accused threatened the deceased. That the death was caused by the unlawful acts/ omission of the accused person There is nothing to connect accused with the death. 12.Mere suspicious however great cannot found a conviction. An accused person is presumed innocent until proven guilty and that is onus is upon the prosecution. 13.In Ramanlal Trambaklal Bhatt v. R [1957] E.A 332 at 334 and 335, the court, on the issue of prima facie case 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 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.” 14.I consider myself a reasonable court. I have properly directed my mind to the law and the evidence . The law here is s. 203 and s. 206 of the Penal code that set out the ingredient of the offence of murder. The evidence is as I have set out herein above. And even if the accused was to offer no explanation this evidence would not sustain a conviction. Suspicion however strong cannot found a conviction. See Sawe v Republic (Criminal Appeal 2 of 2002) [2003] KECA 182 (KLR) (6 June 2003) (Judgment) the CoA in allowing the appeal against conviction stated;“In our judgment, the evidence does not satisfy the legal requirements of circumstantial evidence to warrant or justify the conviction of the appellant on the basis of the evidence on the record. We are, therefore, unable to uphold the conviction entered by the learned trial judge. We have evaluated the evidence as we are entitled to at great length and there is really nothing left to connect the appellant with the death of the deceased except mere suspicion. The suspicion may be strong but this is a game with clear and settled rules of engagement. The prosecution must prove the case against the accused beyond any reasonable doubt. As this Court made clear in the case of Mary Wanjiku Gichira v Republic (Criminal Appeal No 17 of 1998) (unreported), suspicion however strong, cannot provide a basis for inferring guilt which must be proved by evidence. We disagree with the learned judge’s view that the prosecution had proved its case against the appellant beyond any reasonable doubt" 15.This is the same for this case, though a person was killed the evidence before me does not inculpate the accused. 16.At the close of the case for the prosecution s. 306(1) states;"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." 17.I record a finding of not guilty, dismiss the charge and acquit the accused accordingly. RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT KABARNET HIGH COURT THIS 3RD JULY 2026.MUMBUA T MATHEKAJUDGEIn the presence of:-CA GladysAccusedMs. Mokoit for accusedMs. Kosgei for state