https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11137

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **CRIMINAL CASE NO. E060 OF 2024** **REPUBLIC………………………………………………………………………..PROSECUTION** **VERSUS** **PETER MUHUYI…………………………...………………………………………1ST ACCUSED** **PHANICE AYUMA………………………………………………………………2ND ACCUSED** **RULING** 1. The accused persons, Peter Muhuyi and Phanice Ayuma, are jointly charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the charge are that on the 19th day of November 2024 at Lwichi Village within Kakamega County, they jointly murdered Susan Mulongo Charles. 2. The prosecution closed its case after calling ten (10) witnesses. Counsel for the accused submitted that the prosecution failed to establish a prima facie case against either accused person and urged the Court to acquit them under Section 306(1) of the Criminal Procedure Code. 3. I have carefully considered the evidence on record, the submissions by learned counsel for the accused, and the applicable law. **ISSUE FOR DETERMINATION** 1. The sole issue for determination is whether the accused have a case to answer. **ANALYSIS AND DETERMINATION** 1. The law governing a determination of whether there is a case to answer is settled. Section 306(1) of the Criminal Procedure Code provides that at the close of the prosecution case, where the court considers that there is no evidence that the accused committed the offence, it shall record a finding of not guilty. 2. Conversely, where there is evidence connecting the accused with the offence, Section 306(2) requires the court to place the accused on his or her defence. 3. The leading authority remains **Ramanlal Trambaklal Bhatt v Republic [1957] EA 332,** where the former Court of Appeal for Eastern Africa stated: “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 case, the case is merely one which on full consideration might possibly be thought sufficient to sustain a conviction… 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.” 1. The Court of Appeal reaffirmed this principle in **Festo Wandera Mukando v Republic [1980] KLR 103,**holding that at this stage the court is not concerned with whether the prosecution has proved its case beyond reasonable doubt, but whether there is evidence requiring an answer from the accused. 2. Likewise, in **Republic v Samuel Karanja Kiria [2009] eKLR**, the High Court held that in determining whether there is a case to answer, the court should refrain from making final findings on the credibility of witnesses or resolving conflicts in the evidence, as those are matters reserved for the judgment after the defence has been heard. 3. The defence submitted that the prosecution evidence is contradictory and unreliable. It was argued that PW1 and PW2 gave inconsistent accounts regarding the sequence of events, the persons who participated in the assault, and the role played by each accused person. 4. Counsel further submitted that the medical evidence was inconclusive because the doctor who performed the post-mortem attributed death to head injury secondary to trauma while admitting in cross-examination that poisoning had not been ruled out. 5. Reliance was also placed on the Government Chemist’s report confirming the presence of an organophosphate pesticide in the stomach contents of the deceased. 6. It was further argued that the investigations were deficient and that the prosecution failed to establish a nexus between the accused persons and the deceased’s death. 7. Having carefully considered those submissions, I am of the view that they raise issues which properly fall for determination at the conclusion of the trial rather than at this interlocutory stage. 8. I therefore find that the prosecution has established a prima facie case against both accused persons within the meaning of Section 306(2) of the Criminal Procedure Code. 9. Accordingly, I find that both the 1st accused, **Peter Muhuyi**, and the 2nd accused, **Phanice Ayuma**, have a case to answer. 10. Each accused person is hereby informed of the right; 11. to give sworn evidence and be liable to cross-examination; 12. to make an unsworn statement from the dock and not be liable to cross-examination; or 13. to remain silent, and each may call witnesses in support of his or her defence if so advised. 14. Right of Appeal 14 days explained. Defence hearing 26.1.2027. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 21ST DAY OF JULY, 2026.** **S.N MBUNGI** **JUDGE** **In the presence of:-** **CA:** Zildah/Velma Ms. Emily for DPP present. Mr. Iddi for Accused absent. Accused person present.