https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8071

Republic v Kipkoech (Criminal Case E015 of 2023) [2026] KEHC 8071 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEHC 8071 (KLR) Republic of Kenya In the High Court at Kajiado Criminal Case E015 of 2023 CW Meoli, J June 4, 2026 Between Republic Prosecutor and Morris Kipkoech Accused Ruling 1.Morris Kipkoech, the Accused herein was charged with Murder contrary to Section 203 as read with Section 204 of the Penal Code. In that on 1st October, 2023 at Kobil area, within Ongata Rongai township in Kajiado North sub- county, he murdered Cyrus Migiro Onsagiro. 2.The Accused pleaded not guilty and the matter proceeded to full hearing with the prosecution calling 8 witnesses to testify. At the close of the case by the prosecution, the court is called upon to determine whether the evidence adduced supports a prima facie case against the Accused to justify placing him on his defence. 3.At the close of the prosecution case the Accused filed submissions dated 11th November, 2025, taking the position that the prosecution had failed to establish a prima facie case. Relying on Sections 107 and 108 of the Evidence Act and the decisions in Philip Muiruri Ndaruga v Republic [2016] eKLR and Republic v Silas Magongo Onzere alias Fredrick Nnamema [2017] eKLR, counsel for the Accused reiterated that the burden was on the prosecution to prove every element of the offence beyond reasonable doubt. And contended that the evidence presented by the prosecution witnesses was largely speculative and circumstantial, and that no witness testified to having observed the Accused assault the deceased. PW1 only having heard noises and seen the deceased outside the Accused’s house but expressly admitting during cross-examination that she never witnessed any assault. 4.Further, the defence submitted that the medical evidence raised significant doubt as to the actual cause of death. Counsel pointing to the Death Summary Report and medical records from Kenyatta National Hospital indicating that the deceased suffered from acute kidney injury, convulsive disorder, sepsis and other serious medical complications. Asserting that the deceased had a history of alcohol abuse, possible seizures and previous convulsions, and that the injuries observed on his body were more consistent with dragging than assault. Moreover, he continued, the pathologist did not have the benefit of reviewing all the medical records before reaching his conclusion that death resulted from traumatic brain injury. Thus, contending that the prosecution failed to reconcile the apparent inconsistency between the post-mortem findings and the hospital records. 5.The defence counsel therefore posited that the prosecution had not proved either the unlawful act causing death or the existence of malice aforethought. There being no direct evidence linking the Accused to the injuries sustained by the deceased and no evidence demonstrating an intention to kill or to cause grievous harm. Citing authorities as to what amounts to a prima facie case, counsel argued that the evidence on record is insufficient to establish such case and that any gaps or inconsistencies ought to be resolved in the Accused’s favour. Consequently, the court was urged to find that the prosecution has failed to meet the threshold required under Section 203 of the Penal Code and to acquit the Accused. 6.The prosecution case was as follows. Gladys Hikule (PW1), testified that on the material night at about 1:00a.m., she heard noises emanating from the accused's house which was approximately three metres from her residence. She heard sounds of distress and what appeared to be something being hit. Upon looking through her curtain outside, an area illuminated by electricity lighting, she observed her neighbor, the Accused together with another person whom she later identified as the deceased. She also heard a female in the Accused’s house saying words to the effect; throw him out together with his goods. She then saw the Accused carry the deceased, whom she described as an on-off visitor of the Accused, from the compound. 7.On the following morning, she found the deceased lying helpless outside the compound and informed the Accused that the deceased was not well. She later learnt that the deceased had been taken to hospital and subsequently died. PW1 conceded during cross-examination that she did not directly witness the Accused assaulting the deceased. 8.Mary Wanjiru Mureithi (PW2), the landlady who owned the residence where PW1 and the Accused were tenants testified that on the day following the events of the night described by PW1, the Accused informed that the deceased was unwell due to low sugar levels. She advised the Accused to take him to hospital. She confirmed that it was the Accused who arranged for transport and took the deceased to hospital. She further testified that the deceased whom she also saw appeared unwell and had apparent injuries although she did not observe bleeding. 9.A cousin of the deceased, Jared Mogusu Nyakundi (PW3), described how he found the deceased in a critical condition at a local hospital and later transferred him to Kenyatta National Hospital. He said he observed bruises on the deceased's face and back and that medical personnel informed him that the deceased had suffered serious internal complications affecting several organs. 10.The police officer who received the initial report concerning the incident was PC Peter Maina (PW4). He testified that upon receiving the report regarding an assault victim, he proceeded to the Accused's residence and later accompanied him to the local hospital where he observed that the deceased was unconscious and had bruises on the back of the head. 11.According to Dr. Edwin Walong (PW7), the pathologist, who performed the post-mortem examination upon the body of the deceased, his external examination revealed multiple abrasions on the upper limbs, scalp and buttocks. Internally, he observed sub-arachnoid haemorrhage and brain swelling. In his expert opinion, the cause of death was traumatic brain injury occasioned by blunt force trauma. The witness produced the post-mortem report as P.EXh 2. During extensive cross-examination, he maintained his conclusion that the fatal injuries were consistent with blunt force trauma to the head. 12.The postmortem examination was attended and documented by IP Ng'eno Michah (PW5), a scene of crime officer. He produced photographs taken during the post-mortem examination depicting abrasions on the hands, shoulders, back, knees and other parts of the deceased's body. 13.The last prosecution witness was PC Martin Gitonga (PW8), the investigating officer. His evidence was that upon taking over the investigations he interviewed witnesses who placed the deceased together with the Accused on the material night. His investigations established that the deceased was assaulted while in the Accused's house and was thereafter found unconscious outside the house before being taken to hospital. Upon completion of investigations, he formed the opinion that sufficient evidence existed to charge the accused with the offence before the court. 14.Section 306(2) of the Criminal Procedure Code provides as follows:“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, either personally or by his advocate (if any), to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether it is intended to call any witnesses as to fact other than the accused person himself; and upon being informed thereof, the judge shall record the fact.” 15.The court has carefully reviewed the entire prosecution evidence. The fact of death is not in dispute. According to PW7 the cause of death was traumatic brain injury resulting from blunt force trauma. This evidence is consistent with the observations of PW1, PW3, PW4, PW5 and PW6, all of whom confirmed either directly or indirectly the injuries and bruises observed on the deceased. 16.No witness testified to having directly observed the Accused inflict the injuries, and hence the prosecution case is founded upon circumstantial evidence. The firm testimony of PW1 placed the Accused and the deceased together during the material night. She described hearing cries of distress and sounds suggestive of assault emanating from the Accused's house, during which a female voice was heard stating words to the effect: throw him out together with his possessions. All this before she next observed the Accused carrying the deceased outside his house and compound. PW2 confirmed that the Accused later informed her that the deceased was ill and that the Accused arranged for transport to take the deceased to hospital. This was after the deceased was found unconscious and in a critical condition outside the compound. The medical evidence demonstrates that he had sustained traumatic injuries which ultimately caused his death. 17.In the case of Wibiro alias Musa V. Republic (1960) E.A. 184 the Court of Appeal for East Africa defined the term “prima facie case” as follows: -“By his use of the phrase “prima facie case” the learned judge has left this court in doubt as to his precise meaning. It is a phrase more commonly used at the close of the prosecution’s case than at the end of the whole case at which stage the only question is whether the prosecution has proved its case, on the whole of the evidence, beyond reasonable doubt. The question of what constitutes a prima facie case was dealt with by this court in 1957 in the case of Ramanlal Trambklal Bhatt V. R. (1957) EA 332 (E.A.) and the following passage was taken from the judgment of the court at [age 334 and p. 335:-“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 true as WILSON J, said, that the court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively; that final determination can only properly be made when the case for the defence has been heard. 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.” 18.Upon a careful consideration of the prosecution evidence on record in light of the foregoing principles, the court is satisfied that the prosecution has established a prima facie case against the Accused to justify him being placed on his defence under Section 306(2) of the Criminal Procedure Code. Accordingly, the court rules that the Accused has a case to answer and is hereby placed on his defence. DELIVERED AND SIGNED ELECTRONICALLY AT KAJIADO ON THIS 4TH DAY OF JUNE 2026.C.MEOLIJUDGEIn the presence of:For the State: Ms. KihumbaFor the Accused: Ms. Wairimu h/b for Mr. KiamaAccused: PresentC/A: Lepatei