https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/405

Republic v Gikonyo alias Obadi (Sexual Offence E057 of 2025) [2026] KEMC 405 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KEMC 405 (KLR) Republic of Kenya In the Eldoret Law Courts Sexual Offence E057 of 2025 ME Aligula, RM July 31, 2026 Between Republic Prosecutor and Lawrence Gikonyo alias Obadi Accused Ruling 1.The accused was charged with defilement contrary to section 8(1) as read with section 8(2) of the sexual offences Act No 3 of 2006 with an alternative charge of committing an incident act with a child contrary to section 11(1) of the sexual offences act No 3 of 2006. The particulars of the charge are that on diverse date between March 2024 and April, 2025 at unknown time at [Particulars withheld] location,[Particulars withheld] Sub-county within Uasin Gishu County intentionally and unlawfully allowed his penis to penetrate the vagina of a child namely P.I aged 8th years. On the alternative charge, the particulars were that on diverse date between March 2024 and April, 2025 at unknown time at [Particulars withheld] location, [Particulars withheld] Sub- County within Uasin Gishu County intentionally and unlawfully touched the genital organs vagina of child namely P.I aged 8 years. 2.The accused pleaded not guilty and the matter set down for hearing. The Prosecution called a total of 5 witnesses in support of their case. 3.This Court is required under section 306 of the Criminal Procedure Code (cap 75) to determine whether there is evidence that the accused committed the offence and if he might be required to say anything on his defence. The test is whether, on the evidence as it stands, a reasonable tribunal could convict if the accused elected to remain silent. 4.I have considered the evidence of the prosecution on record and took into account the reasoning in the case of Ramanlal Bhatt vs. R (1957) E.A 322 that an accused person can be put on his/ her defense only when a prima facie case has been established by the prosecution. I am satisfied that the prosecution has established a prima facie case against the accused person herein, based on the evidence on record. 5.The issue for consideration is a simple one, whether the prosecution has made out a prima facie case against the accused person. A prima facie case is established where the evidence tendered by the Prosecution is sufficient on its own for a court of law to return a guilty verdict even if the accused opts to remain silent. 6.In Republic vs. Abdi Ibrahim Owi [2013] eKLR, the court defined a prima facie case as follows: “prima facie’ is a latin word defined by Black’s Law Dictionary 8th Edition as, “sufficient to establish a fact or raise presumption unless disapproved or rebutted.” “prima facie’ is defined by the same dictionary as “the establishment of a legally required rebuttable presumption.” 7.The burden of proof lies on the prosecution throughout the trial. That burden of proof does not shift to the accused person to prove his innocence. That is the only way fair trial of the accused person can be guaranteed as stipulated in Article 50 (2) of the Constitution. 8.It follows that an accused person is under no duty to give any evidence in defence to rebut the prosecution’s case. An accused person has the right to remain silent and the court would decide the case on the basis of the evidence adduced, without making any adverse inference against him. 9.The standard of proof required in criminal cases is that of beyond reasonable doubt. Nonetheless, that standard is not applicable at this stage where the prosecution is only expected to have established a prima facie case against the accused person to warrant him to be placed on his defence. 10.From the evidence in court, the accused herein was placed at the scene of the crime by the prosecution witnesses and further there was evidence that the witnesses presented before court knew the accused person at a personal level. I thus believe that the prosecution has raised a rebuttable presumption requiring a rebuttal from the accused. 11.The trial court is however cautioned that at this stage, it should not make definitive findings should it conclude that the accused has a case to answer. 12.In Festo Wandera Mukando vs. Republic [1980] KLR 103, the court as follows: “...we draw attention to the inadvisability of giving reasons for holding that an accused has a case to answer. It can prove embarrassing to the court and, and an extreme case, may require an appellate court to set aside an otherwise sound judgment. Where a submission of “no case” to answer is rejected, the court should say no more than that it is. It is otherwise where the submission is upheld when reasons should be given; for then that is the end to the case or the count or counts concerned.” 13.Having considered the material placed before court and testimonies of the prosecution witnesses, before me I am satisfied that the prosecution has established a prima facie case for the purposes of a finding that the accused has a case to answer. As to whether the said evidence on record meet the threshold for convicting the accused is a matter that will have to be considered at the end of the trial. 14.The accused herein has a case to answer, and I proceed to put him on his defense, and explain to him the options available in his defense under section 211 (1) of the Criminal Procedure Code (cap 75). RULING READ, SIGNED AND DELIVERED AT ELDORET THIS 31TH DAY OF JULY, 2026M.E ALIGULA, RMIn the Presence of:C/A Mr. Lepatoiye LosiekuMr Rop for the stateAccused present .