https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7072

Republic v Imbayi (Criminal Case E008 of 2023) [2026] KEHC 7072 (KLR) (25 May 2026) (Ruling) Neutral citation: [2026] KEHC 7072 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Case E008 of 2023 RN Nyakundi, J May 25, 2026 Between Republic Prosecution and Antony Shikali Imbayi Accused Ruling 1.The accused person was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that the accused on the 5th day of April 2023 at Kamnono Village Kisasi Sub Location in Hamisi Sub County within Vihiga County murdered Victor Rande. 2.The lead prosecution counsel in these proceedings was Mr. Leina for the state whereas the Accused person was under the retainer of Learned counsel Mr. Onyango. 3.The prosecution marshalled 5 witnesses who gave evidence to establish the ingredients of the offence of murder contrary to section 203 as read with section 204 of the Penal code. Summary for the Prosecution case. 4.PW1 - Ernest Sonysti testified that he lives at Kamunone Village in Kisasi Sub-Location in Vihiga County and that he is sixty (60) years old. PW1 testified that on 5th April 2023 at about 8.00 p.m., while inside his house eating, he heard noise emanating from outside. He stated that he came out of the house and stood near his kitchen where he heard his two nephews fighting. He testified that there was moonlight at the time, enabling him to perceive the surroundings. PW1 further testified that he did not proceed to where the fight was taking place because he feared that the two might have been armed with weapons which could injure him. Consequently, he returned to his house and slept. PW1 further testified that on the following morning at about 7.00 a.m., as he was taking tea, one Stephen Mayari, a brother to the Accused person, came to his house and informed him that the Accused person had gone to his house at about 9.00 p.m. on the previous night and informed him that he had fought with Victor, the deceased, outside. PW1 testified that Stephen Mayari had advised the Accused person to go home and informed him that he would later establish the cause of the fight. PW1 stated that after Stephen Mayari woke up in the morning, they agreed to go and find out why the Accused person and the deceased had fought. PW1 testified that upon proceeding to the deceased’s house, they found the door open and upon entering the bedroom, they found the deceased lying sideways on his bed while bleeding from the mouth and nose. He testified that they attempted to wake him up but he did not respond and they realized that he had died. PW1 further testified that they screamed, attracting members of the public, after which the Assistant Chief and the Chief arrived at the scene and advised them to report the matter to the police. He stated that together with Stephen Mayari, they recorded statements with the police officers who later collected the deceased’s body and took it to the mortuary. PW1 further testified that it was the Accused person who caused the death of the deceased. He identified the Accused person through the virtual court screen, although he described the screen as something resembling a television. PW1 additionally testified that both the deceased and the Accused person were like his children since their father was his biological brother. He stated that prior to the incident, the Accused person and the deceased generally had a good relationship save for occasional minor disagreements which had never escalated into physical fights before the material day. 5.PW2 – Mary Lumetwa Magunamo testified that she is a resident of Kisasi Sublocation in Vihiga County and aged fifty-seven (57) years. She stated that on 6/6/2023 at about 8.00 a.m., she was in her house drinking tea when a young man called Fudi came and informed her that he was going to mzee Kawas’s house because Anthony Shikali had killed his brother, and they proceeded there together. PW2 further testified that upon arrival, they found three (3) people, one of whom was Musa, and she entered the deceased’s bedroom where she used her phone torch to observe the body. She noted that the deceased was lying facing upwards with his hands raised and stiff, and he had an injury on the right cheek. PW2 testified that she then came out and called the Sub-chief, Matilda Ambasi, and the Chief, Hesborn Liyenzero, after which police arrived and took the body to Kaimosi Mortuary. She added that Anthony Shikali was present when she was calling the Chief but fled upon the arrival of the police. PW2 finally testified that Anthony Shikali disappeared for about two (2) months before being found at his home on 5/8/2023 lying near his door, and she later heard that he had been arrested by the police. 6.PW3 – Liyenzero Hesborn testified that he is the Chief of Shamakhokho Division, residing at Seremi Sub-location in Vihiga County, Tiriki East Sub County and that his PF No. is 2017101857. He stated that on 6/4/2023 at about 8.00 a.m., while on his way to work, a Village Elder from Kisasi Sub-location, Kamunono Village, together with Mama Mary Lumetwa, called him and informed him that two (2) brothers had fought the previous night and that one of them had died. PW3 testified that he immediately called the Assistant Chief of Kisasi, Matilda Ambasi, and they proceeded to the scene where they found members of the public in the compound who led them to where the deceased was. He stated that they entered the house and found the deceased lying on the bed with injuries on the head and his hands raised up in the air. PW3 further testified that upon inquiry, he was informed that the two (2) brothers, Anthony Shikali and Victor Rande, had fought and that Shikali had killed Victor, although he did not see Shikali at the scene. He added that there were many people present, including two family members, Mr. Sonyuti and Mzee Mayavi, whom he took and reported the incident at Serem Police Station, after which police recorded the occurrence and proceeded to the scene to conduct investigations and later took the body to the mortuary. PW3 testified that after about two (2) months, he heard that Anthony Shikali had been arrested by the police, and he later recorded his statement at Serem Police Station on 6/6/2023 at about 1.00 p.m. He identified the accused person as Anthony Shikali, whom he knew very well and whom he identified on the screen. PW3 further testified that the accused had other cases before the incident, and after this incident he was released on bond and went home, where he allegedly caused commotion, broke windows, and threatened a young girl with death. He stated that he went to the scene and arrested him, took him to Serem Police Station where he was charged and taken to court, and that he was later released on probation. PW3 finally testified that after about two (2) months, the accused planned to escape, prompting his surety to withdraw from standing surety, after which he was arrested again and taken back into custody. 7.PW4 – NO 63134 PC Nicholas Kirongo testified that he is the above-named police officer currently attached to DCI Hamisi, where he carries out general investigations. He stated that he vividly recalls that on 06/04/2023 at about 1300 hours, he accompanied the Officer Commanding Anti-Crime at Serem Police Station, IP Dorcas, to the scene of a murder at Kamunono Village within Kisasi Sub-location. PW4 further testified that upon arrival, they confirmed that on the night of 05/04/2023 at about 2200 hours, two brothers, namely Victor Rande (the deceased) and Antony Shikari, had fought over an unknown issue at their home, during which Victor Rande was badly injured by his brother Antony Shikari and later succumbed to the injuries sustained. PW4 testified that they found the deceased’s body lying in his house facing upwards with visible physical injuries, including a deep cut on the left side of the head, a fresh wound on the back of the head, and bruises on both hands. He stated that the suspect, Antony Shikari, fled and went into hiding after the incident, and the body was processed and removed to Jumuia Hospital Kaimosi Mortuary awaiting postmortem. PW4 further testified that the postmortem was conducted on 19th April 2023, and the cause of death was established to be severe head injuries. He stated that on 05th June 2023 at about 1750 hours, officers from DCI Hamisi arrested the suspect, Antony Shikari, at his home in Kamunono Village within Kisasi Sub-location and escorted him to Serem Police Station for interrogation. PW4 testified that he commenced investigations by recording statements from witnesses, and the investigations revealed that Antony Shikari ought to be charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. He further stated that he later forwarded the investigation file to the Office of the Director of Public Prosecutions (ODPP) for perusal and advice. 8.In addition to other evidence adduced by the prosecution, one by the name PW5 - Dr. Collins Masika who performed the Post Mortem upon the body of the deceased gave evidence and produced a Post Mortem Report dated 19th April 2023. In his findings, he established that the deceased had suffered physical injuries involving the deep cut on the left side of the head, fresh wound on the back of the head and bruises on both hands. As a result of the examination of the pathologist, he formed the opinion that the cause of death was severe head injury due to trauma to the sculp. The other systems were normal. Analysis and Determination 9.The question for this court to answer is whether under Section 306 of the Criminal Procedure Code, the prosecution has discharged the burden of proof to meet the threshold of a prima facie case for the accused person to be place on his defence. First and foremost, Article 50(2)(a) states as follows: -“Every accused person has a right to a fair trial which includes the right to be presumed innocent until the contrary is proved.” 10.The prima facie obligation is vested with the prosecution. The success or failure of it depends wholly on the evidence presented to prove existence or non-existence of a fact or facts in issue as derived in Section 107(1), 108 and 109 of the Evidence Act. The term Prima facie is note defined under Section 306 of the Criminal Procedure Code but the concept appears both in criminal and civil law. There is a close knitted correlation between the term prima facie as commonly used and prima facie evidence. 11.In so far as the definition is concerned, as deducible in Section 306 of the Criminal Procedure Code, the use of prima facie case means the prosecution having presented enough evidence to proof the elements of the offence in question. That the prosecution is entitled to prevail in its case against the accused person. Speaking plainly, there are two senses in which courts use the concept of prima facie. The first in the sense of the prosecution producing sufficient evidence to render a reasonable conclusion in favour of the allegation asserted in the indictment or the charge sheet. That this what gives the trial court the power to exercise discretion to allow the criminal case to proceed to the next stage which is the defence offering an explanation or an answer to the charge. 12.In the second sense of the concept however, courts use prima facie case to mean not only that the prosecution evidence will reasonably allow an independent court or tribunal properly constituted to conclude that the evidence compels the accused person to produce evidence to rebut it. However, in the event the accused person elects to keep silent or offers no evidence in rebuttal, the blend of that sufficient evidence by the prosecution, will satisfy the court to find the accused guilty and convict him as per law established. The accused person in a prima facie case is not required as a matter of the Constitution or the law to offer evidence in reply. This is what Article 50(2)(f) says; that the accused has a right to remain silent and not to testify during the proceedings and he has also a right in Art50(2)(i), a right to refuse to give self-incriminating evidence. If he elects any of these options, provided under out Constitution, the accused takes a risk of an adverse verdict if he fails to do so. 13.In this discussion, the principles which govern the exercise of the judicial discretion whether to uphold or reject submissions of no case to answer at the close of prosecution case are well established in this jurisdiction guided by more than century old common law principles as outlined by the House of Lords in R v Galbraith [1981] 1 WLR 1039 who held as follows;“How then should the Judge approach a submission of “no case:”? (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 character, 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 Crown’s evidence taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case. (b) Where however the Crown’s 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 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 of the judge.” 14.It is trite that when the prosecution has made a prima facie case in criminal proceedings, the burden of evidence then shifts to the accused person. However, there is one critical element in this realm of law. The necessity of offering evidence by the accused person to offset the prosecution’s prima facie case, in no way does it shift the burden of proof which continues to rest on the prosecution at all material times as stipulated in Art 50(2)(a), the accused is presumed innocent until the contrary is proved. I presume that is what the drafters of the constitution had in mind when the rights centred around Art 50(2)(a), (j) and (i) of the same constitution. In Republic Vs Abdi Ibrahim Owl [2013] eKLR a prima facie case was defined as follows: -“Prima facie” is a Latin word defined by Black’s Law Dictionary, 8th Edition as “Sufficient to establish a fact or raise a presumption unless disproved or rebutted”. “Prima facie case” is defined by the same dictionary as “The establishment of a legally required rebuttable presumption”. To digest this further, in simple terms, it means the establishment of a rebuttal presumption that an accused person is guilty of the offence he/she is charged with. In Ramanlal Trambaklal Bhatt v. R [1957] E.A 332 at 334 and 335, the court 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 is 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.” 15.Similarly, in Ronald Nyaga Kiura Vs Republic [2018] eKLR the Court stated as follows in paragraph 22: -“It is important to note that at the close of prosecution, what is required in law at this stage is for the trial court to satisfy itself that prima facie has been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of Section 211 of the Criminal Procedure Code. A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person.” 16.At the close of the prosecution case, the dicta in the case of Anthony Ndegwa Ngari Vs Republic (2014) eKLR for the case of murder, the republic is supposed to prove each of the following ingredients beyond reasonable doubt:a.The fact of deathb.The fact that the deceased’s death was caused by an unlawful act or omission.c.That the accused committed the unlawful act which caused the death of the deceased; andd.That the accused had malice aforethought. 17.Having carefully considered the prosecution evidence as adduced by PW1 to PW5, the Court is satisfied that the prosecution has established a prima facie case against the Accused person to warrant him being placed on his defence. The evidence on record, taken at its highest, points to the Accused person as the person who inflicted the fatal injuries on the deceased following a fight between the two brothers on the night of 05th April 2023. This is corroborated by the testimony of PW1, PW2, PW3 and PW4, all of whom place the Accused person at the centre of the events leading to the death of the deceased. 18.Further, the medical evidence adduced by PW5, Dr. Collins Masika, confirms that the deceased died as a result of severe head injury due to trauma, consistent with the injuries observed by PW4 and other witnesses at the scene. This evidence satisfies the requirements under Section 203 as read with Section 204 of the Penal Code on the offence of murder and establishes both the actus reus and the causal link between the injuries inflicted and the death of the deceased. The prosecution evidence, though yet to be tested in cross-examination, is not inherently incredible or incapable of sustaining a conviction if uncontroverted. 19.The assessment of a prima facie case in favour of the prosecution means that the prosecution has presented sufficient evidence to establish the essential elements of an offence of murder contrary to Section 203 of Penal Code as punishable under Section 204 of the same penal code which now requires the defence to put up an answer to the case or the allegations. 20.Accordingly, pursuant to Section 306(2) of the Criminal Procedure Code, this Court finds that a prima facie case has been established against the Accused person rrequiring the accused to be put on his defence under section 306 as read with section 307 of the Penal Code. 21.The defence hearing shall be on 2nd June 2026. 22.It is so ordered. DATED, SIGNED AND DELIVERED VIA EMAIL AND CTS AT VIHIGA THIS 25TH DAY OF MAY 2026………………………………………….R. NYAKUNDIJUDGE