https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9843

Republic v Kilonzo (Criminal Case E010 of 2023) [2026] KEHC 9843 (KLR) (7 July 2026) (Ruling) Neutral citation: [2026] KEHC 9843 (KLR) Republic of Kenya In the High Court at Garsen Criminal Case E010 of 2023 JN Njagi, J July 7, 2026 Between Republic Prosecutor and Nuson Mutiso Kilonzo Accused Ruling 1.The accused is charged with murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence were that on the 20th March 2023, at about 0100hours at Bires Forest, Tana Delta Sub-County within Tana River County, he murdered Michael Mutuku (herein referred to as the deceased). 2.The only witnesses who testified in the case were Katana Kazungu Toya PW1 , the investigating officer PW2 and the doctor who produced a post mortem report of the body of the deceased. 3.It was the evidence of Kazungu PW1 that he sells liquor inside Bires forest. That on the 21/3/2023 he was at his liquor den when he heard shouts of many people. 4.He went to the place the shouts were coming from and found a group of about 40 people. He found a certain man tied on his hands at the back. The people were threatening to kill the person. He made inquiries and he was told that the person had killed a person recently. He pleaded with the people not to kill the person but they take him to the police. They agreed with him. He put the person on a motor bike and took him to Tarasaa police station. He recorded a statement to the police. He identified the person he took to the police station as the accused. 5.The investigating officer PW2 testified that on the 20/3/2023 he took over investigations of this case from the OCS Tarasaa police station. That he recorded statements of witnesses. That on the 23/3/23 he received a phone call from the OCS Tarasaa police station that there was a suspect who had been taken to the police station my members of the public who was said to have been involved with the death of the deceased herein. He went and picked the suspect, the accused. He then visited Bires forest where the deceased had met his death. He found one person who witnessed a fight between the accused and the deceased that led to the death of the deceased. A post mortem on the body of the deceased was conducted at Malindi sub-county hospital. He charged the accused with the offence. 6.A doctor based at Malindi sub county hospital PW3 testified that the post mortem of the deceased was done by a doctor who left the hospital and went into private practice. That he had worked with the said doctor for a period of over one year and was conversant with his handwriting and signature. That the doctor found the body of the deceased with multiple deep cuts on the right leg with partial fracture of left tibia, dislocation of the right elbow, multiple lacerations of major blood vessel of the legs and blunt trauma on the left temporal area. Based on the said injuries, the doctor formed the opinion that the cause of death was due to cut arteries. PW3 produced the post mortem report in court as exhibit, P. Exhibit 1. 7.That the only evidence that was adduced before the court. The court is now required to establish whether the prosecution has established a prima facies case to require the accused to be placed on his defence. 8.The Black’s Law Dictionary, 10th Edition defines a prima facie case as follows:Prima facie case. (1805) I. The establishment of a legally required rebuttable presumption. 2. A party's production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party's favor. 9.The Court of appeal in the case of Ramanlal Trambaklal Bhatt v. R [1957] E.A 332 at 334 and 335, defined prima facie case 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.” 10.The deceased is said to have died as a result of a fight between him and the accused. The people who witnessed a fight between the accused and the deceased did not testify in the case. The evidence that the accused killed the deceased amounts to heresay. Consequently, there is no case made against him as to require him to make a defence. 11.In view of the foregoing, I find that no prima facie case has been established against the accused as to require him to be placed to his defence. The accused consequently has no case to answer and is acquitted under Section 306 (1) of the Criminal Procedure Code. RULING DELIVERED, DATED AND SIGNED AT GARSEN THIS 7TH DAY OF JULY 2026.J. N. NJAGIJUDGEIn the presence of:Miss Hajila for the ApplicantMr. Oluoch for the RepublicAccused: Present at GK Prison MalindiCourt Assistant: Rahma