https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10670

Republic v Mutie (Criminal Case E005 of 2020) [2026] KEHC 10670 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEHC 10670 (KLR) Republic of Kenya In the High Court at Machakos Criminal Case E005 of 2020 NIO Adagi, J July 16, 2026 Between Republic Prosecutor and Maricella Ngeli Mutie Accused Ruling 1.The Accused person Marcella Ngeli Mutie is facing two Counts of Murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap. 63). Laws of Kenya. 2.The particulars of offence under Count I read as follows; -Marcella Ngeli Mutie: On the 2nd day of October, 2020 at Kavyea village, Musingini sub-location in Masinga Sub-County, within Machakos County, murdered John Kitulu Sila. 3.The particulars of offence under Count II read as follows: -Marcella Ngeli Mutie: On the 2nd day of October, 2020 at Kavyea village, Musingini Sub-location in Masinga Sub- County, within Machakos County, murdered Cynthia Mutile Sila. 4.The accused denied the charges and the case proceeded for hearing. The Prosecution called sixteen (16) witnesses in a bid to prove its case. At the close of the prosecution’s case, directions were taken on filing of submissions on a no case to answer. Both parties complied by filing their respective submissions. 5.The prosecution submits that it availed the testimonies of sixteen witnesses in addition to the documentary evidence produced as exhibits in this matter. That it is evident that the accused person had malice aforethought because she gave the deceased children snacks laced with poison from a pesticide knowing fully well it meant for animals and not for human ingestion. 6.The prosecution submits that it has proved beyond reasonable doubt and the accused ought to be placed on her defence under S. 306 (2) of the Criminal Procedure Code. 7.The accused submits that the prosecution has not discharged the burden of proof to the required standard in criminal cases. The prosecution has left a grey area as to where the ingested poison was from. It cannot infer that the snacks were laced with poison by the accused person. The prosecution must place the accused person at the centre of the crime. According to report of Government Analyst, some of the samples which were submitted were not from the accused person home. For example, as per the list of inventories from the accused person home, there was 1 sachet of sweets suspected to contain poisonous substance and recovered pieces of sweet alias numbers in the compound. The Government Analyst report indicates under D-7(i-ii) two polyethene papers containing some brown substance labelled as from suspect house. The inventory from the David shop in Kavyea showed that the samples contained chlorpyrifos and organophosphate which is said to be poisonous to humans and may be harmful if ingested. 8.The Defence prays that the accused person be released with a no case to answer as the prosecution evidence has left so many gaps. 9.The burden of proof in criminal proceedings lies solely with the prosecution which must establish its case beyond reasonable doubt. 10.The duty of this Honourable Court is to carefully evaluate whether the prosecution has discharged this burden and whether the evidence presented meets the requisite legal threshold to warrant placing the accused on his/her defence. 11.It is trite law that at the close of the prosecution’s case, the trial court must consider the evidence so far tendered by the prosecution to determine whether a prima facie case has been established in order to call upon the accused person to defend himself/herself. If no such case has been made out at this stage, then the trial court must acquit the accused person as provided for under section 210 of the Criminal Procedure Code. 12.What constitutes a prima facie case is clearly stated 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 person 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" 13.With the above authority in mind, I have carefully reviewed the evidence adduced by the prosecution witnesses as well as the submissions tendered on behalf of the prosecution and the defence. 14.The prosecutions case is that the accused went to the shop and in a few minutes, she returned with shopping and she met the healthy children herein. She unpacked the shopping that contained snacks (numbers) and other shopping. She then distributed the snacks to the children starting with Cynthia inside the house and whom she asked to go and eat from outside, followed by John Kitulu Sila who was given the snacks and asked to follow the sister outside then Laurex Kibet who was given his snack but he was delayed in the house together with Gloria. Shortly Kibet left the house and joined Cynthia and John outside. The accused was left in the house with her daughter Gloria who wasn’t given the snacks. After some time, Cynthia, John and Kibet started crying and Gloria heard them. She then called the accused who came outside and found the children crying. It was then that Gloria rushed to the farm to call the mother to Cynthia and John. Upon their mother arriving at the home, Cynthia and John were already unconscious. The children were rushed to hospital but unfortunately Cynthia and John lost their dear lives. These children were John Kitulu & Cynthia Mutile (Rebecca’s children who both died), Gloria Munyao (Accused person’s child), and Lauret Kibet (Accused person’s grandchild). PW9 told the court that they were all given snacks but she was the last one to be given and to walk out of the house. According to the prosecution, they have stated that the snacks were laced with poison because it is after eating the snacks given to them by the accused as narrated above that 2 of the children developed complications and succumbed thereafter. The court would be curious to understand why only the accused’s child (Gloria) was not affected like the rest of the children and or which was she given?. 15.The prosecution’s case when scrutinised against the applicable legal principles and evidentiary standards reveals material evidentiary facts that warrant the accused to be placed on her defence. 16.I therefore do find that the prosecution has established a prima facie case against the accused person sufficient enough to put her on her defence. 17.It is trite that when the prosecution has made a prima facie case in criminal proceedings, the burden of evidence then shifts to the accused person. However, there is one critical element in this realm of law. The necessity of offering evidence by the accused person to offset the prosecution’s prima facie case, in no way does it shift the burden of proof which continues to rest on the prosecution at all material times as stipulated in Art 50(2)(a), the accused is presumed innocent until the contrary is proved. 18.Accordingly, the accused person is put on her defence. 19.This case shall therefore proceed for defence hearing.It is so ordered. RULING DATED, SIGNED & DELIVERED AT MACHAKOS THIS 16TH JULY 2026NOEL I. ADAGIJUDGEIn the presence of:-