https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11375

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **CRIMINAL CASE NO. E011 &E012 OF 2022** **REPUBLIC………………………………………………………………………PROSECUTION** **VERSUS** **FERINE PINQUETT MAERO………………………………………………………..ACCUSED** **RULING** 1. The accused, Ferine Maero, is charged with two counts of murder contrary to Section 203 as read together with Section 204 of the Penal Code. The particulars are that on the 6th day of March 2022 at Ebwambwa Area within Kakamega Central Sub-County, Kakamega County, she murdered Wyston Lumosi and Mayson Mitto. 2. The prosecution closed its case after calling sixteen (16) witnesses. The court is now called upon to determine whether the prosecution has established a prima facie case requiring the accused to be placed on her defence under Section 306(2) of the Criminal Procedure Code. **ANALYSIS AND DETERMINATION** 1. Section 306(1) of the Criminal Procedure Code provides that where, at the close of the prosecution case, no evidence exists that the accused committed the offence, the court shall record a finding of not guilty. 2. Conversely, under Section 306(2), where evidence exists linking the accused to the offence, the accused shall be called upon to make her defence. 3. The test to be applied was authoritatively stated in **Bhatt v Republic [1957] EA 332*,*** where the Court held that a prima facie case is one on which a reasonable tribunal, properly directing itself on the law and the evidence, could convict if no explanation is offered by the accused. The court must not determine guilt at this stage but only whether sufficient evidence exists to require an answer. 4. The Court of Appeal reiterated the same principle **in Ramanlal Trambaklal Bhatt v Republic [1957] EA 332,** emphasizing that a mere scintilla of evidence is insufficient, but equally the court should avoid making definitive findings of fact before hearing the defence. 5. The prosecution evidence establishes beyond dispute that the two children died.PW8, Dr. Dickson Muchana, produced the post-mortem reports in respect of both deceased children. His medical opinion was that both Wyston Lumosi and Mayson Mitto died from asphyxia secondary to manual strangulation. The medical evidence therefore establishes the fact and cause of death and excludes accidental death or natural causes. 6. The prosecution also led evidence placing the accused at the scene shortly before the deaths were discovered.PW2, Charles Nambala Akhonya, the night watchman at Triosons Apartments, testified that he saw the deceased children alive at about 6.30 p.m. while playing within the compound. They thereafter entered the house and were not seen alive again. 7. PW12, Samuel Munanga, testified that between approximately 7.00 p.m. and 11.00 p.m. he ferried the accused on a motorcycle to several entertainment premises within Kakamega town before returning her to the apartment at about 11.00 p.m. According to him, the accused entered the apartment compound after paying her fare. 8. PW1, Rodney Mitto, testified that he had been living separately from the accused following domestic disagreements. He had taken the children back to their mother during the afternoon of 5th March 2022 before spending the evening with friends. Upon returning home at about 3.20 a.m., he found the accused inside the house. 9. After she repeatedly asked him whether the children were “okay”, he returned to the children’s bedroom and discovered both children cold and unresponsive. He confronted the accused who then revealed a fresh wound on her neck and stated that she had only a few minutes to live. 10. PW2 corroborated PW1’s account by stating that shortly after the accused admitted Rodney into the compound, Rodney emerged and informed him that the children had died and accused their mother of killing them. PW2 further observed the accused collapse shortly thereafter. 11. PW3, Cliff Moseti, and PW4, Patrick Obura, arrived shortly afterwards and independently confirmed finding the children lying lifeless in the bedroom while the accused lay injured inside the matrimonial bedroom. 12. PW11, Julius Caesar Lumosi, the biological father of Wyston Lumosi, testified regarding earlier conversations with the accused during which she complained that she was unwell mentally. Although that evidence does not establish criminal responsibility, it forms part of the surrounding circumstances relied upon by the prosecution. 13. The prosecution evidence further shows that no other adult was inside the house with the children during the material period. The evidence places the accused as the person who remained with the children after they returned home in the afternoon until PW1 arrived shortly after 3.00 a.m. 14. The prosecution case is substantially founded upon circumstantial evidence.The principles governing reliance upon circumstantial evidence are well settled***.* In Sawe v Republic [2003] KLR 364**, the Court of Appeal held that before a conviction can be founded on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis. 15. Similarly, in **Abanga alias Onyango v Republic Cr. App. No. 32 of 1990**, the Court stated that the chain of circumstances must be complete and point irresistibly to the accused to the exclusion of any other reasonable hypothesis. 16. At this stage, however, the court is not required to determine whether the chain is complete beyond reasonable doubt. That determination can only properly be made after hearing the defence. 17. The evidence before the court establishes: 18. the children were alive when returned to the accused’s custody; 19. the accused was the last adult seen with them before their deaths; 20. both children died from manual strangulation; 21. the accused was present in the house when the deaths were discovered; 22. the accused herself had sustained a neck injury consistent with an apparent suicide attempt or self-inflicted injury; and 23. no evidence has thus far emerged suggesting that another person entered the house and caused the deaths. 24. Whether these circumstances ultimately establish guilt is a matter reserved for the final judgment after the defence has been heard. 25. Having carefully evaluated all the prosecution evidence, this court is satisfied that the prosecution has established more than a mere suspicion against the accused. 26. Without making any final findings on credibility or guilt, the court finds that there exists evidence upon which, if left unanswered, a reasonable tribunal properly directing itself on the law could convict. 27. Accordingly, I find that the prosecution has established a prima facie case within the meaning of Section 306(2) of the Criminal Procedure Code. 28. Defence hearing is on 31.11.2026. It is so ordered. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA 27TH DAY OF JULY, 2026.** **S.MBUNGI** **JUDGE** **In the presence of:-** **CA:** Velma/Zilda Mr. Mango for Accused. Ms. Emily got ODPP present online. Accused present. Ms. Mburu for victim family. MR MANGO: We shall call 3 witnesses. The Accused shall give sworn evidence.