https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11652

**REPUBLIC OF KENYA** **THE HIGH COURT AT NAIROBI AT MILIMANI** **CRIMINAL CASE NO E032 OF 2022** **REPUBLIC ------------------------------------------------------PROSECUTION** **–VS-** **KENNEDY MUNENE NJUKI-----------------------------------1st ACCUSED** **CORNELIUS CHEPSIROR KIPTOO-----------------------2ND ACCUSED** **RULING ON CASE TO ANSWER** 1. The accused persons **KENNEDY MUNENE NJUKI and CORNELIUS CHEPSIROR KIPTOO** were arraigned before this court on the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code. 2. The particulars of the information read: *On 24th day of April 2022 at around 2200hrs at Platinum estate, Mihango area in Embakasi East sub county jointly with others not before court the accused murdered* **PATRICK MBAABU KAHURIA**. 1. The accused denied the charges, the prosecution called 10 witnesses in support of the charges. 2. I have considered the prosecution evidence and the particulars of charges. 3. The law under Section 306 of the Criminal Procedure Code provides that;- ***“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 the several or any one of the 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.”*** 1. The prosecution is under duty to prove on prima facie basis that the evidence presented in support of the information for murder establishes the essential ingredients of the offence of murder as provided for under Section 206 of the Penal Code. 2. In the case of Ramanlal T. Bhatt v. R (1957) EA 332, 335 (CA) the court of appeal defined prima facie case and also set out the burden of proof as follows : “***A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence. It is true, as Wilson J., said, that the court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively: that final determination can only properly be made when the case for the defence has been heard. 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 is offered by the defence***.” 3. The court is not required to determine the guilt or innocence of the accused persons conclusively at this stage. The court only determines whether there is sufficient evidence to have the accused persons placed on their defense and that a reasonable tribunal properly directing its mind on the evidence, and the law would most likely convict if there was no explanation offered by the accused person. 4. **In the case of REPUBLIC-Vs- JAGJIVAN M. PATEL & Others (1) TLR , the court held that** :- “All the court has to decide at the close of evidence of the charge is whether a case is made out against the accused just sufficiently to require him to make a defence, it may be a strong case or it may be a weak case. The court is not required at this stage to apply its mind in deciding finally whether the evidence is worthy of credit or whether, if believed, it is weighty enough to prove the case conclusively, beyond reasonable doubt. A ruling that there is a case to answer would be justified, in my opinion, in a borderline case where the court, though not satisfied as to conclusiveness of the prosecution evidence, is yet of opinion that the case made out is one which on full consideration might possibly be thought sufficient to sustain a conviction.” 1. The court however must always remember that the duty to establish the case against the accused person solely lies on the shoulders of the prosecution throughout the case. 2. The court may as well acquit the accused persons at this stage where it finds that the evidence tendered is grossly insufficient to support the murder information. In the English case of **Prasad -Vs- R (1979) 2 A CRIM R 45** Ving CJ stated that : **“I have no doubt that a tribunal which is** **Judge of both Law and fact, may dismiss a charge at any time after the close of the case for the prosecution, notwithstanding. That there is evidence upon which the defendant could lawfully be convicted, if that tribunal considers that the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it**.” 3. The prosecution evidence must prove the elements of the offence of murder that is to say that the deceased died as a result of an unlawful act or omission by the accuse. The prosecution must also establish that the accused person(s) had malice aforethought at the time of the commission of the offence. **See the case of Court of Appeal CA No. 352 of 2012 Anthony Ndegwa Ngari -Vs- Republic [2014] eKLR and Republic -Vs- Mohammed Dadi Kokane & 7 Others [2014] eKLR** 4. From the evidence, Pw1 and Pw2 testified that the deceased was beaten on the night of 24/4/2022 by the two accused persons. The evidence further showed that the deceased later succumbed to the injuries on 3/5/2022. 5. The deceased at the time the accused persons began assaulting him was in the parking bay of their residence whiling away the evening and that the assault was predicated on alleged theft of items that the two accused persons had brought in to the plot. 6. The evidence tendered connected the two accused to the assault on the deceased and no one else thus the identity of the two accused persons was not in doubt. 7. The two accused persons were therefore placed at the scene by the prosecution witnesses and there was no evidence to show that the deceased had indeed stolen any items of the accused persons as claimed by the two. The assault from the evidence appeared to have been unprovoked. 8. The cause of death as per the pathologist was as a direct result of the injuries sustained the night in question. 9. The finding of this court that the prosecution has on a prima facie basis established their case requiring the accused persons to be placed on their defense. Accordingly, the two accused person are hereby placed on their defense. 10. It is so ordered. **DATED, SIGNED** and **DELIVERED VIRTUALLY** at **NAIROBI** this **1st** day of **JULY, 2026.** 1. **M. MUTETI** **JUDGE** **In the presence of:** Court Assistant: Habiba Ms Njoroge for State Kimathi h/b Ouma for 1st Accused Kimathi for 2nd Accused Ondicho h/b Ouma for 1st Accused