https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7791

Republic v Ngugi (Criminal Case E002 of 2023) [2026] KEHC 7791 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7791 (KLR) Republic of Kenya In the High Court at Thika Criminal Case E002 of 2023 FN Muchemi, J May 28, 2026 Between Republic Prosecutor and Benson Njoroge Ngugi Accused Ruling Brief Facts 1.This is a ruling on whether the accused has a case to answer. The accused person faces three counts of the offence of murder contrary to Section 203 as read with 204 of the Penal Code to which he pleaded not guilty. The accused was jointly charged with one Peter Ngugi Wanjiku who entered into plea bargain and was sentenced. 2.The prosecution called thirteen (13) witnesses in this case. At the close of the case, the defence counsel Ms. Mwema & Ms. Kololo put in their submissions on no case to answer raising several issues. 3.Citing the cases of Anyangu & Others vs Republic [1968] EA ; Peter Kinyua Ireri vs Republic [2016] eKLR and Wilson Kinyua & Another vs Republic [1980] eKLR counsel argued that the prosecution case entirely rested on the confession by the 1st accused which cannot be the basis of conviction without substantial independent corroboration. Counsel further argued that the 1st accused person’s confession was defective and unreliable as it was not signed the by the 1st accused person; a confession is a solemn statement and must be complete and duly authenticated; and an unsigned page renders the document incomplete and raises legitimate doubts as to the authenticity, integrity, continuity and voluntariness. Counsel asserted that none of the other prosecution witnesses ever testified anything linking the 2nd accused person to the murders. Relying on the cases of Republic vs Osalo (Criminal Case 29 of 2020) [2022] KEHC 13359 and David Mokaya (Gen Z Protests) Data Case, counsel argued that evidence obtained in violation of constitutional rights is not admissible before the court as the investigating officer in the instant case admitted that he obtained call data from Safaricom PLC without first obtaining court orders which violated Article 31 of the Constitution, Section 118 of the Criminal Procedure Code and Section 180 and 180A of the Evidence Act. 4.On the other hand, the prosecution adduced direct evidence in court, which shows the accused person plotted to kill the three deceased persons. One prosecution witness gave testimony of how he and the accused planned to kill the deceased persons as there were property wrangles in the family between the first and second deceased on one part and the accused persons on the other part. The witness further testified that the accused person facilitated the killings by paying out the two hitmen who are still at large namely Gerald Mwaniki Kahare and Kamangu alias Kamaa. The witness also recorded a confession which was obtained voluntarily. The prosecution thus argues that the direct evidence of the 1st accused and circumstantial evidence tied up the accused person herein with the offence beyond reasonable doubt. 5.Having carefully perused the evidence of the prosecution witnesses, I am of the opinion that the prosecution has established a prima facie case. The Court of Appeal held in the case of Antony Njeru vs Republic [2006] eKLR that:-“Taking into account the evidence on record, what the learned Judge said in his ruling on no case to answer, the meaning of a prima facie case as stated in Bhatt’s (supra), we are of the view that the appellant should not have been called upon to defend himself as all the evidence was on record. It seems as if the appellant was required to fill in the gaps in the prosecution case. We wish to point out here that it is undesirable to give a reasoned ruling at the close of the prosecution case, as the learned Judge did here unless the court concerned is acquitting the accused person.” 6.Relying on the foregoing case, it is not necessary at this point to state the analysis of the evidence since in my opinion the accused person has a case to answer. The holding the Court of Appeal in my view was intended to prevent a scenario where the court would pre-empt the case of the defence. As such, I hold the opinion that the prosecution has established a prima facie case against the accused person. I therefore, find that the accused person has a case to answer and is hereby called upon to give his defence. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 28TH DAY OF MAY 2026.F. MUCHEMIJUDGE