https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11617

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CRIMINAL CASE NO. E004 OF 2023** **REPUBLIC----------------------------------------------------------PROSECUTION** **VERSUS** **MICHAEL JOSEPH ALIAS MJ-------------------------------------ACCUSED** **RULING** 1. The accused person is charged with Murder contrary to Section 203 as read with Section 204 of the Penal Code Cap. 3 Laws of Kenya. The particulars of offence being that on the night of 31st December, 2022 at Nasta Garden estate in Kayole Sub County, Nairobi County he murdered BECKAM ATIKA OIRIGA ALIAS BECKAM SYLVESTER. 2. The prosecution called a total of 13 witnesses in support of the charges. The court received evidence that established that the deceased died and that the deceased death was as a result of unlawful act of assault. 3. The court is alive to the fact that at this stage of the proceedings the court is not required to engage in unexhaustive analysis of evidence so far tendered but should be satisfied on a prima facie basis that the ingredients of the offence of murder are disclosed and that there is evidence to require that the accused be placed to his defense. 4. For the establishment of a prima facie case in a murder trial, the court must be alive to the ingredients of the offence and weigh the evidence in relation to the same. The ingredients were well set out in the case of **Anthony Ndegwa Ngari v Republic [2014] eKLR** as follows; 5. The fact of death. 6. The fact that the deceased’s death was caused by an unlawful act or omission. **iii.** That the accused committed the unlawful act which caused the death of the deceased; and **iv**. That the accused had malice aforethought. 1. The test of what amounts to a prima facie case was set out in **Ramanlal Trambaklal Bhatt v R [1957] E.A 332 at 334 and 335,** where 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.”** 2. The evidence tendered by the prosecution connects the accused person to the offence and in effect there is evidence that a reasonable tribunal properly directing its mind to the law could convict if no explanation is offered by the defense. This does not by any means whatsoever suggest that there is a shifting of the burden of proof since the burden of proving the offence remains wholly on the shoulders of the prosecution throughout the trial. 3. Accordingly, taking into account the totality of the evidence on record and having noted the submissions filed by the defense, this court finds that the accused has a case to answer as per the provisions of Section 306 of the Criminal Procedure Code. 4. The accused is therefore placed on his defense. 5. It is so ordered. **DATED, SIGNED** and **DELIVERED VIRTUALLY** at **NAIROBI** this **6th** day of **MAY, 2026.** 1. **M. MUTETI** **JUDGE** **In the presence of:** Habiba: Court Assistant Ms. Dela/Ms Njoroge for the state Sonoiya for the Accused Accused: present