https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13011

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU CRIMINAL CASE NO. 32 OF 2019 REPUBLIC ………………………………………….. PROSECUTION VERSUS MICHAEL WAINAINA NJERI …………………………………….. ACCUSED RULING ON CASE TO ANSWER Introduction 1. The accused person, Michael Wainaina Njeri, is before this Court charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code, Cap. 63 Laws of Kenya. The information dated 9th August, 2019 states that: - “On the 28th day of July, 2019, at Dagoretti Market in Kikuyu Sub-County within Kiambu County, the accused murdered Kamau Kamau Njambi, hereinafter “the deceased.” 2. The accused was arraigned before court on 13th August, 2019 when directions issued that that he be assigned counsel on pro HCCR. NO.32 OF 2019 RULING Page 1 of 16 bono basis. On the same day, the accused pleaded NOT GUILTY to the charge and the matter was scheduled to proceed for hearing, which commenced on 1st December 2025, whereby the prosecution called two (2) witnesses. Evidence adduced by the Prosecution 3. PW1, Lilian Njoki Muthoni, testified that she worked as a conductor on Motor Vehicle Registration Number NNK 105A along Waiyaki Way. She stated that the deceased was her maternal uncle. As regards the accused person, PW1 was candid that she had never met or known him before the incident and that she only saw him after the commission of the alleged offence. 4. PW1 testified that on 27th July, 2019 at around 23:47 hours, while at home, she received a telephone call from her cousin, Wilson Gichuhi Gathoni, who informed her that the deceased had been stabbed to death at Redsquare Bar, at Dagoretti Market. She then proceeded to the scene in the company of relatives, where upon arrival, she found the deceased already dead. That the police officers later arrived and removed the body to the mortuary. The following day, she HCCR. NO.32 OF 2019 RULING Page 2 of 16 was called to the police station to record a statement, and it is there that she found the accused person after he had been arrested. 5. It is worth-noting that the material part of PW1’s evidence is that she did not see the person who stabbed or killed the deceased. It was also her evidence that she did not witness any confrontation between the accused and the deceased and neither did she find or see the accused at the scene and she did not identify the accused as the assailant. Her evidence connecting the death of the deceased to any particular person was what would have been therefore derived from what she had allegedly been told by another person who was not called as a witness before this court. 6. PW2, Simon Kagiri Njambi, testified that the deceased was his brother and that he used to reside near Redsquare Bar, where he died. PW2’s role was limited to identifying the deceased’s body at the mortuary. He stated that he did not witness the incident and neither did he see the accused or anyone commit the offence. He further testified that the first time he saw the accused person was in the court. 7. Thereafter, there were several adjournments at the prosecution’s instance as they failed to avail further witness. Having granted the prosecution enough indulgence which HCCR. NO.32 OF 2019 RULING Page 3 of 16 included several orders of last adjournment, the court directed them to either adduce any other evidence or close their case. The prosecution closed its case and parties were directed to file their written submissions on whether sufficient evidence had been adduced to warrant the accused to be placed on his defence. The accused filed his written submissions but the prosecution did not. Submissions by the Accused 8. Counsel for the accused submitted that the prosecution had not established a prima facie case to warrant placing the accused on his defence. It was urged that neither PW1 nor PW2 witnessed the incident, neither saw the accused at the scene, and neither gave direct evidence linking the accused to the death of the deceased. Counsel submitted that the evidence of PW1 was hearsay in so far as it depended on information allegedly received from persons who were not called as witnesses. It was further submitted that the prosecution failed to call essential witnesses and failed to prove the identity of the assailant. The accused therefore urged the Court to acquit him under Section 306(1) of the Criminal Procedure Code. Analysis and determination HCCR. NO.32 OF 2019 RULING Page 4 of 16 9. I have carefully considered the evidence on record and the submissions filed on behalf of the accused. While death of the deceased is a grave, unfortunate and regrettable fact, the solemn nature of the charge cannot lower the legal threshold imposed upon the prosecution. The duty of the Court is to decide the case before it evidence and, not on the seriousness of the accusation, or on sympathy arising from the loss of life. 10. Therefore, at this stage the sole issue for determination as whether, upon the evidence adduced by the prosecution, a prima facie case has been established against the accused person sufficient to require him to be put on his defence. 11. The offence the accused is charged for is murder contrary to Section 203 of the Penal Code. Section 203 of the Penal Code defines murder as the act of causing the death of another person by an unlawful act or omission with malice aforethought. Section 206 of the Penal Code sets out the circumstances from which malice aforethought may be inferred, including an intention to cause death or grievous harm, with the knowledge that the act or omission will probably cause death or grievous harm, an intention to commit a felony, or an intention to facilitate the flight or escape of an offender. HCCR. NO.32 OF 2019 RULING Page 5 of 16 12. Then it follows that the prosecution was required, at the least, to adduce evidence capable of establishing: the fact and cause of death of the deceased; that the death resulted from an unlawful act or omission; that the unlawful act or omission was committed by the accused; and that the accused acted with malice aforethought. 13. In criminal cases, the burden of proof remains throughout on the prosecution. Sections 107, 108 and 109 of the Evidence Act, Cap. 80, place the burden upon the party asserting the existence of facts to prove those facts. That burden does not shift to an accused person. Article 50(2)(a) of the Constitution also guarantees every accused person the right to be presumed innocent until the contrary is proved. 14. Therefore, at the close of the prosecution’s case, the Court must be satisfied that the prosecution has placed before it legally admissible evidence upon which the accused can properly be called to answer. The Applicable Law 15. Section 306(1) of the Criminal Procedure Code provides that:- “When the evidence of the witnesses for the HCCR. NO.32 OF 2019 RULING Page 6 of 16 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. Section 306(2) provides that:- “Where the court considers that there is evidence that the accused committed the offence, it shall inform the accused of his right to address the court, either personally or by his advocate, to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses in his defence. 16. At this stage the court’s task is not to determine the guilt or innocence of the accused beyond reasonable doubt. That final determination only arises where the prosecution has first crossed the statutory threshold of establishing a prima facie case. The Court must therefore ask whether, if the evidence on record, is left unanswered, is capable of sustaining a conviction by a reasonable tribunal properly directing itself on the law and the evidence. HCCR. NO.32 OF 2019 RULING Page 7 of 16 17. The classical statement of the test is found in the case of Ramanlal Trambaklal Bhatt v Republic [1957] EA 332, where the then Court of Appeal held that a prima facie case is not made out merely because there is some evidence against the accused, irrespective of its credibility or weight. The Court stated that a prima facie case must be 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. The principle is an important shield against calling upon an accused person to answer a case built on conjecture, suspicion, hearsay or gaps which the defence is expected to fill. 18. In the case of Republic v Abdi Ibrahim Owl [2013] eKLR, the Court explained that a prima facie case means evidence sufficient to establish a fact or raise a rebuttable presumption unless disproved or rebutted. It is not enough that when an accused person is before court; the prosecution must place before the court admissible evidence which, on its own strength, establishes each essential element of the offence to the required threshold for purposes of Section 306 of the Criminal Procedure Code. 19. Further, Section 63 of the Evidence Act requires oral evidence to be direct. Where a fact could be seen, the evidence must be of a witness who says he or she saw it; where it could HCCR. NO.32 OF 2019 RULING Page 8 of 16 be heard, the evidence must be of a witness who says he or she heard it. Hearsay evidence cannot found a conviction and cannot be used to fill the central gaps in a prosecution case. In the case of Maina wa Kinyatti v Republic [1984] KLR 562, the Court of Appeal restated the rule that a statement other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of the truth of the fact stated, unless it falls within a recognised exception. No such exception was invoked by the prosecution in the present matter. 20. In the instant case, the prosecution closed their case without calling any other witness after the two prosecution witnesses, PW1 ad PW2. In particular, the prosecution did not call the person who allegedly telephoned PW1 and gave the first report on the death of the deceased. PW1 then proceeded to the scene where he was informed that the deceased had been stabbed. PW2’s evidence was even narrower as the only role he played in the matter was to identify the deceased’s body to the doctor who performed the post mortem at the mortuary. The evidence of these two witnesses only established that they were related to the deceased and that they later saw or identified his body. Their evidence does not establish who inflicted the fatal injury on the deceased, the circumstances under which the injury was inflicted and or HCCR. NO.32 OF 2019 RULING Page 9 of 16 whether the accused was unlawful or identify the accused participating in the cause of the deceased’s death. 21. It is worth-noting that the prosecution did not call any person who was allegedly present at Redsquare Bar, Dagoretti Market. The prosecution did not call the arresting officer, investigating officer or any police officer who visited the scene to give evidence on how, why who caused the accused’s death. They never called any medical evidence or any witness to establish the circumstances under which the accused was linked to the death of the accused. 22. The circumstances have presented the first difficulty in the prosecution’s case where only two witnesses testified and yet none of them witnessed the killing happen. 23. The second difficulty is identification of the assailant. In a criminal trial, especially one involving the charge of murder, the identity of the assailant is not a peripheral matter; it is the spine of the prosecution’s case. PW1 did not know the accused before the incident. She did not see him at Redsquare Bar. She did not see him with the deceased. She did not see him armed with any weapon. She only saw him at the police station after his arrest. PW2 was even clearer that the first time he saw the accused was in court. Therefore, there is no direct HCCR. NO.32 OF 2019 RULING Page 10 of 16 evidence of visual identification or recognition against the accused. 24. The Court of Appeal in the case of Wamunga v Republic [1989] KLR 424, warned that where the evidence against an accused depends on identification, the court must examine such evidence carefully and be satisfied that the circumstances of identification were favourable and free from possibility of error. In the present case, there is in truth no identification evidence to examine. The prosecution did not present a witness who identified the accused as the assailant, placed him at the scene, or connected him with any act causing the deceased’s death. The accused cannot be called upon to answer merely because PW1 later saw him at the police station or because PW2 later saw him in court. 25. The third difficulty is that the prosecution case rests, at its highest, on hearsay. PW1 acted on information received from her cousin, Wilson Gichuhi Gathoni, who was never called as a witness. The Court was not told whether this person witnessed the incident, whether he received information from another person, whether he was at Redsquare Bar, or the basis upon which he allegedly implicated any person. To rely on PW1’s account of what she was told would be to receive an out-of- HCCR. NO.32 OF 2019 RULING Page 11 of 16 court statement as proof of the truth of its contents, contrary to the rule against hearsay. 26. The fourth difficulty is the complete absence of investigative and medical evidence. The investigating officer was not called to explain the steps that were taken, the basis of the accused’s arrest, the recovery or non-recovery of any weapon, the statements recorded, or the evidential link between the accused and the deceased’s death. The arresting officer was equally not called. No crime scene officer testified. No medical officer or pathologist testified to produce a post- mortem report or otherwise establish the medical cause of the deceased’s death. While cause of death may in some rare cases be inferred from cogent lay evidence, the present case does not contain such cogent evidence because the Court was not given admissible evidence on the actual assault, the nature of the injury, the weapon used, the time of death, or the person who inflicted the injury. 27. The fifth difficulty concerns the failure to call material witnesses. Section 143 of the Evidence Act provides that no particular number of witnesses is required to prove a fact. That provision, however, does not relieve the prosecution of the duty to call evidence sufficient to prove the ingredients of the charge. In the case of Bukenya & Others v Uganda [1972] HCCR. NO.32 OF 2019 RULING Page 12 of 16 EA 549, the Court held that the prosecution must make available all witnesses necessary to establish the truth, even if their evidence may be inconsistent, and that where the evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution. In this matter, the uncalled witnesses were not merely additional witnesses; they were the persons who could potentially speak to the occurrence itself, the identity of the assailant, the arrest, the investigations and the cause of death. 28. This Court is alive to the principle that the failure to call a witness is not automatically fatal. The question is always whether the evidence actually called is sufficient. In this case, the evidence called is not merely thin; it is disconnected from the accused. It leaves the Court with a death, grieving relatives, an arrest, and nothing admissible in between to connect the arrest of the accused to the death of the deceased. Such a gap cannot be bridged by requiring the accused to explain himself. That would impermissibly shift the burden of proof on the accused person. 29. Also, the prosecution did not establish a circumstantial case against the accused. Circumstantial evidence can sustain a conviction where the inculpatory facts are incompatible with HCCR. NO.32 OF 2019 RULING Page 13 of 16 the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than guilt. The authorities, including the cases of Sawe v Republic [2003] KLR 364 and Abanga alias Onyango v Republic, Criminal Appeal No. 32 of 1990, are clear that suspicion, however strong, cannot be the basis of a conviction. In the present matter, there are no demonstrated or prove inculpatory facts forming any chain against the accused. There is no evidence that he was seen with the deceased, fled from the scene, was found with blood-stained clothing, possessed a weapon, made any confession, quarrelled with the deceased, or otherwise conducted himself in a manner from which guilt could reasonably be inferred. 30. The accused’s submissions also point out that any reference to a name or alias not properly connected to the accused cannot cure the evidential deficit. That submission has force. An accused person can only answer the evidence placed before the Court. If the prosecution intended to prove that a particular name, description or alias referred to Michael Wainaina Njeri, it was required to call admissible evidence to that effect. It did not do so. 31. In the end, I find that the prosecution has not adduced evidence capable of proving the third and most critical HCCR. NO.32 OF 2019 RULING Page 14 of 16 ingredient of the offence, namely that it was the accused who caused the death of the deceased. It has also not adduced evidence capable of proving malice aforethought on the part of the accused. Without evidence identifying the accused as the perpetrator or placing him in a legally cognisable chain of circumstances leading to the deceased’s death, there is no basis upon which this Court could call him to his defence. 32. To place the accused on his defence in the circumstances of this case would be to invite him to answer to suspicion and hearsay. That is precisely what Section 306(1) of the Criminal Procedure Code, Article 50(2)(a) of the Constitution, and the principles laid down in the case of Bhatt v Republic, guard against. A criminal trial is not a net cast into uncertain waters in the hope that the defence will catch what the prosecution left floating. The prosecution must first anchor its case on admissible evidence. It has not done so here. Disposition 33. Accordingly, I find that the prosecution has failed to establish a prima facie case against the accused person, Michael Wainaina Njeri, to warrant placing him on his defence. HCCR. NO.32 OF 2019 RULING Page 15 of 16 34. In the ultimate, a finding of not guilty pursuant to Section 306(1) of the Criminal Procedure Code is hereby recorded for the accused person, Michael Wainaina Njeri, and he is hereby acquitted of the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code. 35. The accused shall be set at liberty forthwith unless otherwise lawfully held. It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 25 TH DAY OF MAY , 2026. D. O. CHEPKWONY JUDGE In the presence of: M/S Murui counsel for the accused No appearance for and by counsel for the accused Court Assistant - Martin HCCR. NO.32 OF 2019 RULING Page 16 of 16