https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10945

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **CRIMINAL CASE NO. E001 OF 2026** **REPUBLIC …………………………………………….……………………………… DPP** **=VERSUS=** **JOHN OMULELE HEZEKIAH …………………..………………………….ACCUSED** **Coram: Before Justice R. Nyakundi** **M/S Wekesa Advocate for the Accused** **Mr. Leina for the State** **RULING** 1. The Accused is charged with the offence of Murder contrary to Section 204 of the Penal Code Cap 63 Laws of Kenya. The particulars are that on the night of 30th and 31st December 2025 at unknown time at Musirili village, Itumbu Sub-Location, Ipali Location in Emuhaya Sub-County within Vihiga County murdered on Amos Otemba. 2. The accused pleaded guilty to the offence and as such the State was put on notice to prove the elements of the offence beyond reasonable doubt. He was represented at the trial by Learned Counsel Mr. Wekesa pursuant to Art 50(2)(g) of the constitution while the State case was being conducted by Mr. Leina the Prosecution Counsel. 3. In terms of the combined standard and burden of proof, in cases of this nature under Section 203 of the Penal Code the following elements form the substratum of the case to be proven by the State: 4. That the deceased is dead, 5. That his death was unlawfully caused, 6. That in causing death the perpetrator(s) executed it with malice aforethought. 7. That the perpetrator before Court as a suspect of murder was positively identified as the one who committed the homicide against the deceased. 8. The Prosecution in discharging their duty discharged the burden of proof of beyond reasonable doubt based on the following witnesses: 9. **PW1 Tabulen Ochola** on oath told this Court that he would recall very well on 31st December 2025 he was at his dwelling house when he received a telephone call from the village elder by the name Rebecca informing to proceed to Omulele’s home in which information had come through that a crime had been committed involving the deceased. It was the evidence of PW1 that on arrival at the home of Omulele it was discovered that one Amos Otemba was sitting down leaning on the wall lifelessly and some water was being poured upon his body which had evidence of multiple injuries with blood oozing out of his neck and chest. In making observation at the scene and what had transpired he telephoned the area Chief and the local Police station at Emuhaya who visited the scene and subsequently preserving it for purposes of further investigations. 10. The next witness who testified on behalf of the Prosecution **John Joel Nanjelo** who on oath also told the court that on 31st December 2025 he also received a telephone call from the village elder with regard to the incident in which one Amos Otemba had been found dead by his brother John Omulele. The witness who also serves as an Assistant Chief of the sub-location in which the incident occurred boarded a motor bike to the scene and on arrival found that the Police Officers from DCI Emihaya were already processing and documenting the scene. The witness further told this court that he indeed saw the body of the deceased lying in one of the rooms in the house with multiple injuries. It so happened according to the witness that his co-occupant and a brother to the deceased was immediately apprehended as a suspect as the body was removed to Coptic hospital for preservation pending post mortem. The post mortem was finally conducted by **Dr. Dixon Muchana** who testified as PW3 and his post mortem report dated 7th January 2026 was admitted in evidence with the following positive findings documented as follows: **General Observations on Body** * Clothing: Draped in blank sheet * Sex: Male * Race: African * Apparent Age: Early 50s * Nutrition: Good * Physique: Good * Height: 179 cm Post-Mortem Changes and Assessment of Time of Death— Well-preserved body (embalmed) PM interval approximately one week External Appearance of Body: (give details of condition, presence or absence of petechiae, cyanosis, etc., and position, nature and dimensions of all external injuries). * Moderate peripheral + central cyanosis * Punctate laceration on (R) forehead; measures 1.2 x 0.9 cm * Non-extensive abrasions/contusions on forehead, both forearms, legs average 0.9 cm * Extensive contusions on both upper limbs/legs. Closed distal 1/3 (R) femur, distal 1/3 (L) Tibia/Fibula * There is no evidence of recent medical intervention * There is no stigmata of chronic ill-health Internal appearance of body (1) respiratory system: RS - intact rib cage/pleura lungs (2)Cardio-Vascular System: CVS - Severed blood vessels of both lower limbs * Moderate petechiae on epicardium/heart (3) Digestive System: GIT - Minimal solid food; no alcoholic smell (4) Genito-Urinary System**:** Congested abdominal viscera (5) Head: * Bifrontal scalp contusion; intact cranium/skull base; Congested cerebral blood vessels; Moderate cerebral edema (7) Spinal Column: Intact vertebral column (8) Spinal Cord: MSS - Extensive soft tissue injuries of all 4 limbs - lower limbs According to PW3 the Pathologist formed the opinion that as a result of the post mortem examination the deceased died out of extensive mixed tissues injuries secondary to blunt force trauma following an assault. He therefore proceeded to issue the Death Certificate No. 0605578 to confirm absolutely that the deceased right to life under Article 26 of the Constitution is no longer tenable. This post mortem report was admitted in evidence under Section 48 of the Evidence Act. 1. It was also the case for the Prosecution from the testimony of PW4 Robert Amustama to the effect that on the 30th day of December 2025 while selling at his shop the deceased visited him and asked if he could assist him with any work but he suggested that such an assignment could be discussed the following day. In the course of that night the witness told the court that 1700-1800hrs he had a voice of the deceased who seemed to be drunk for he was a person well known to him prior to this particular date. It did not take long according to PW4 his brother John Omulele came to the shop to buy a packet of unga and left without saying anything but on 31st December 2025 at around 0800hrs he again went to his shop to inform him about the condition of his brother the deceased in this case. This caused him anxiety and they left together with John to the house in which they occupied together with the deceased. According to the witness’s own observations, the scene was disturbed as evidence of a struggle which had taken place before the injuries seen in the body of the deceased would have been sustained. 2. Finally, the last witness happens to be the Investigating Officer one PC Ervin Kanyanya who told the court that he recorded witness statements, had scene photographed, the body collected and taken to Coptic Hospital in which the post mortem examination was taken by Dr. Muchana and thereafter he recommended that the suspect now accused be charged with offence of murder contrary to Section 203 of the Penal Code. 3. This formed the basis upon which the Director of Public Prosecution indicted the accused under Article 157(6) (7) of the Constitution as read with the provisions of the Criminal Procedure Code and Section 203 of the Penal Code for him to stand charged with the offence of murder. It is a requirement of the law that at the close of the prosecution case a finding ought to be made whether a *prima facie* case has been established within the ramifications of Section 306 of the Criminal Procedure Code. This is a threshold issue based on the evidential material and the half time submissions made by both Counsels dated 7th and 8th July 2026 respectively. **Decision** 1. In the Kenyan criminal law, a prima facie case at the close of the prosecution means there is sufficient, credible evidence on each element of the offence to allow a reasonably constituted trial Court to convict. If the evidence fails this test, the Magistrate or Judge must uphold a no case to answer submission and acquit the accused. The general approach is well laid down in Section 306 of the Criminal Procedure Code and the principles in the case of ***R v Galbraith [1981] 1.W.L.R. 1039*** where the Court said:- *“(1). If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous nature for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty then the judge should allow the matter to be tried by the jury. There will of course, as always in this branch of the law be borderline cases. They can safely be left to the discretion to the Judge”* 1. From the perspective of the prosecution case, in dealing with the nature of the crime and how it was committed, its typology is stated to have been build on circumstantial evidence. This is what the Court had in mind in the case of *Taylor et al v R (1928) Crim App. R 20* in which Hewart J stated as follows: *"It has been said that the evidence against the applicants is circumstantial; so it is, but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undesigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial."* 1. In analyzing the evidence by a trial court where the session is being presided by a Judge as contradistinguished by the Jury System Lord Devlin extract from the Hamlyn Lectures (1956) republished in 1988 aptly illustrated the separate roles of the Judge and Jury in criminal trials and he said that: *“…there is in truth a fundamental difference between the question whether there is any evidence and the question whether there is enough evidence. I can best illustrate the difference by an analogy. Whether a rope will bear a certain weight and take a certain strain is a question that practical men often have to determine by using their judgment based on their experience. But they base their judgment on the assumption that the rope is what it seems to the eye to be and that it has no concealed defects. It is the business of the manufacturer of the rope to test it, strand by strand if necessary, before he sends it out to see that it has no flaw; that is a job for an expert. It is the business of the judge as the expert who has a mind trained to make examinations of the sort to test the chain of evidence for the weak links before he sends it out to the jury; in other words, it is for him to ascertain whether it has any reliable strength at all and then for the jury to determine how strong it is…The trained mind is the better instrument for detecting flaws in reasoning; but if it can be made sure that the jury handles only solid argument and not sham, the pooled experience of twelve men is the better instrument for arriving at a just verdict. Thus logic and common sense are put together.”* 1. This is the premise of the law in Kenya with regard to criminal trials before the High Court which is governed under Section 306 of the CPC providing as follows: *“(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 recording 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 on his own behalf or make unsworn statement and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether is intended to call any witness as to fact other than the accused person himself; and upon being informed thereof, the judge shall record the fact.” See the principles in Republic v Muchene (2025) eKLR & Republic V Langat (2026) eKLR.* 1. In essence, when it comes to criminal cases a prima facie case has the component of prima facie evidence which is the minimum amount of proof required for a prosecutor to establish that a crime occurred and that the accused likely committed it. If left unexplained, or uncontradicted by the accused person or defence this evidence is legally sufficient to establish a fact to support conviction. That is the import of Section 306 of the Criminal Procedure Code. The five witnesses presented before this Court by the Prosecution basically can be said by this Court that the characteristic and features of the evidence is that of circumstantial evidence. What that means, none of them directly saw the accused person inflicting the fatal injuries which eventually occasioned his death. 2. *As kind of source of proof, circumstantial evidence is also described as ‘indirect evidence’ in contradistinction to ‘direct evidence’. It is distinguished from direct evidence, which, if believed, proves the existence of a particular fact without requiring any inference or presumption. On the other hand, indirect or circumstantial evidence relates to a series of facts other than the particular fact sought to be proved. The party offering circumstantial evidence argues that these series of facts, by reason and experience, are so closely associated with the fact to be proved that the fact to be proved may be inferred simply from the existence of the circumstantial evidence. In this wise, circumstantial evidence is taken as a synonym for presumptive evidence which is when the existence of the principal facts is deduced inferentially by a process of sound reasoning from facts or circumstances proved and established in the case. See Wills on Circumstantial Evidence (7th Edition) at pg 324 and William P. Richardson The Law of Evidence III (3rd Edition) 1928.* 3. The threshold on the standard of proof even at half time submissions before the accused could be called upon to state his/her case to contradict the prosecution case is a logical analysis of the sufficiency of the evidence surrounding the circumstances proven that are inconsistent with the right to presumption of innocence under Article 50(2) (a) of the Constitution. This is what the Court said in Hodge’s Case (1838), 2 Lewin 227, 168 ER in which the Court observed; *to the effect that one can only convict on circumstantial evidence if the evidence is consistent with guilt and inconsistent with any other rational conclusion and that other rational conclusions must be based on inferences from facts and not merely speculative. Underlying the rule is the principle of reasonable doubt. However, courts are urged to, and do exercise the greatest degree of caution in reaching a conclusion based on circumstantial evidence*. 4. Be that as it maybe, for ease of application, inferable presumptions of fact are usually divided into three classes with different levels of force. The first is violent presumption, where the facts and circumstances proved raised a presumption so strong that guilt almost necessarily follows. Another is probable presumption, where the facts and circumstances proved raise a presumption upon which the court may, if satisfied that by the evidence the facts alleged by the prosecution are established and no explanation is offered, find a verdict of guilty; and, lastly, there are light or rash presumptions, which have very little weight or validity at all. 5. Given the strength of the Prosecution case as portrayed by the circumstantial evidence and the applicable principles in the cited case law there is a manifestation of a prima facie case as against the accused for this Court to invoke Section 306 of the Criminal Procedure Code for the defence to be at liberty to give a logical or truthful explanation on the interlocking issues of this indictment. It is for these reasons that this matter be scheduled for defence on 28th July 2026. Orders accordingly. **DATED AND DELIVERED THIS 20TH DAY OF JULY 2026.** **…………………………………….** **R. NYAKUNDI** **JUDGE**