https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9929

Republic v Mwabaya alias Rigo & another (Criminal Case 39 of 2018) [2026] KEHC 9929 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 9929 (KLR) Republic of Kenya In the High Court at Mombasa Criminal Case 39 of 2018 WM Kagendo., J June 11, 2026 Between The Republic Prosecution and Khamisi Mcharo Mwabaya alias Rigo & another Accused Ruling Preliminaries 1.The 1st Accused, Khamisi Mcharo Mwabaya alias Rigo, and the 2nd Accused, Ali Gandi Dofu alias Kata Cabin, are each charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, Cap 63 of the Laws of Kenya. 2.The particulars of the information dated 25th July 2018 are that on the morning of 19th January 2018 at Monzo village, Rabai Sub-Location, Rabai Sub-County within Kilifi County, both accused persons, jointly with others not before court, murdered Jonathan Bule Shikely. Both accused persons denied the charge and pleas of not guilty were duly entered. The prosecution thereafter called its witnesses and subsequently closed its case. The matter now comes before the court for a ruling on whether the prosecution has established a prima facie case against the accused persons so as to warrant them to be placed on their defence. The court reminds itself that the burden of proof at all times rests with the prosecution. At this stage, the court is not required to make a definitive finding of guilt or to resolve questions of credibility or conflicting evidence — those are matters reserved for final determination. The sole question before the court is whether the prosecution evidence, taken at its highest, is sufficient to call upon the accused persons to answer the charge. Analysis and Determination 3.Section 306 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 no evidence that the accused or any one of several accused committed the offence shall, after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit, record a finding of not guilty." 4.The court has considered the evidence adduced by the prosecution and the issue for determination is whether that evidence suffices to warrant the accused persons to be placed on their defence as required under Article 50 of the Constitution of Kenya, 2010. The applicable threshold is that of a prima facie case. 5.In Republic v Abdi Ibrahim Owl [2013] eKLR, a prima facie case was defined in the following terms:“'Prima facie' is a Latin word defined by Black's Law Dictionary, 8th Edition as 'Sufficient to establish a fact or raise a presumption unless disproved or rebutted'. 'Prima facie case' is defined by the same dictionary as 'The establishment of a legally required rebuttable presumption'. In simple terms, it means the establishment of a rebuttable presumption that an accused person is guilty of the offence with which he/she is charged." 6.The locus classicus on the standard at this stage remains the East African Court of Appeal decision in Ramanlal Trambaklal Bhatt v Republic [1957] EA 332 at pages 334–335, where the court held 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.' ... 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." 7.The Court of Appeal affirmed and applied the Bhatt standard in Anthony Njue Njeru v Republic, Criminal Appeal No. 77 of 2006 [2006] KECA 339 (KLR), where the court further cautioned that it is undesirable to give a detailed reasoned ruling at the close of the prosecution's case where the court is placing the accused on his defence, as too much detail may compromise the evidentiary quality of the defence to be mounted. 8.The court is further guided by the same caution in Festo Wandera Mukando v Republic [1980] KLR 103, where the court held:“...we draw attention to the inadvisability of giving reasons for holding that an accused has a 9.case to answer. It can prove embarrassing to the court and, in an extreme case, may require an appellate court to set aside an otherwise sound judgment. Where a submission of 'no case' to answer is rejected, the court should say no more than that it is. It is otherwise where the submission is upheld when reasons should be given; for then that is the end to the case or the count or counts concerned." 10.In Republic v Joseph Shitandi & Another [2014] eKLR, the court articulated the test succinctly thus:“A case to answer is a case where if the accused keeps quiet, the evidence of the prosecution should be such that a conviction will result." 11.As the High Court of Australia put it in May v O'Sullivan [1955] 92 CLR 654 at page 658, a question that crystallises the inquiry at this stage: the question is not whether on the evidence as it stands the accused ought to be convicted, but whether on the evidence as it stands they could lawfully be convicted. Application to the Facts 12.The court has carefully considered the totality of the evidence adduced by the prosecution witnesses. Without going into the merits of that testimony — which the court must scrupulously avoid at this stage so as not to prejudice the defence — the court is satisfied that the prosecution has placed before it sufficient evidence capable, at its highest, of establishing a prima facie case against both accused persons on all three elements of the offence. 13.On the fact of death of Jonathan Bule Shikely, evidence going to the deceased's death and its cause has been placed before the court. On the unlawful act, there is evidence connecting both the 1st and 2nd accused to the events at Monzo village on the morning of 19th January 2018. On malice aforethought, as defined under Section 206 of the Penal Code, the circumstances disclosed by the prosecution evidence are, taken at their highest, capable of supporting an inference of the requisite intention. 14.The court says no more than this, as it is required by the authorities to do. It is so satisfied that a prima facie case has been established, and the accused persons are accordingly called upon to defend themselves. Conclusion and Disposition 15.Having considered the evidence of the prosecution witnesses and without going into the merits of their testimony, the court is satisfied that a prima facie case has been established against both the 1st Accused Khamisi Mcharo Mwabaya alias Rigo and the 2nd Accused Ali Gandi Dofu alias Kata Cabin, warranting them to be placed on their defence. 16.Accordingly, the court finds that both the 1st and 2nd Accused have a case to answer and are placed on their defence. Their rights under Article 50(2)(i), (k) and (l) of the Constitution of Kenya, 2010 as read with Section 306(2) of the Criminal Procedure Code are hereby guaranteed and are to be explained to each of the accused persons in the presence of their respective legal representatives and in a language that each of them understands.It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 11TH DAY OF JUNE 2026.HON. LADY JUSTICEW. K. MICHENI JUDGESigned by/for: