https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10555

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT [COURT STATION]** **CRIMINAL CASE NO. E038 OF 2023** **REPUBLIC**.....................................................................................................**PROSECUTOR** **VERSUS** **JAMES NYAMASEGE OMARE**..........................................................................**ACCUSED** **RULING ON CASE TO ANSWER** 1. The accused person, **James Nyamasege Omare**, is charged with the offence of murder contrary to **section 203 as read with section 204 of the Penal Code**. The particulars are that on 4.4.21 at Kenyoro village, Riokindo location in Kenyanya Sub-County within Kisii County, jointly with others, not before the court, murdered **Duncan Oirere Ayuka**. 2. The accused pleaded not guilty. The prosecution called four witnesses. 3. This court is now called upon to determine whether the accused has a case to answer under **section 306(1) of the Criminal Procedure Code**, at the close of the prosecution's case, the court considers that there is no evidence that the accused committed the offence, the court shall record a finding of not guilty. Under **section 306(2)**, where there is evidence that the accused committed the offence, the accused is to be placed on his defence. 4. The offence of murder under **section 203 of the Penal Code** requires proof that the deceased died; that an unlawful act or omission caused the death; that the act or omission was committed by the accused; and that the accused acted with malice aforethought. Malice aforethought is addressed under **section 206 of the Penal Code** 5. The test at this stage is not whether the prosecution has proved the case beyond a reasonable doubt. The question is whether a **prima facie case** has been established. In **Ramanlal Trambaklal Bhatt v Republic [1957] EA 332**, the court stated that a prima facie case is not made out by a mere scintilla of evidence or worthless evidence; it must be evidence on which a reasonable tribunal, properly directing itself on the law and evidence, could convict if the defence does not explain. 6. I have considered the evidence on record. PW1, **Helen Bututu Moya**, testified on matters she stated had been narrated to her by Fred. In cross-examination, she stated that she did not know the accused, had never seen him before, she testified to what she had been told, and had no evidence implicating the accused in the murder. It is said Fred was not called to testify herein. Her evidence was therefore hearsay against the accused and did not place him at the scene or connect him to the killing. 7. PW2, the father of the deceased, identified the body for purposes of post-mortem. His evidence was formal and did not connect the accused to the offence. 8. PW3, **Dr Leah Obosi Okoro**, performed the post-mortem examination. Her evidence established that the deceased sustained severe head injuries, skull fractures and brain lacerations, and that the cause of death was head injury due to assault with a sharp object. She further stated in cross-examination that she could not connect the accused to the offence. Her evidence proved the death and cause of death, but not the identity of the assailant. 9. PW4, **Police Sergeant Alfred Simotwo Ruto**, was the initial investigating officer. His evidence connected the accused to the offence only through statements allegedly made to him by Fred Mogoi Nyambega and Asenath Nyanchoka. He stated that Fred had allegedly said the accused and two others went towards a river/home area and later returned, and that the accused had a panga and blood-stained clothes. He also referred to information allegedly obtained from Asenath concerning a possible love triangle and an alleged text message. However, Fred and Asenath were not called to testify herein and for cross-examination. 10. On cross-examination, PW4 conceded that there was no eyewitness to the murder, the alleged murder weapon was not recovered, the accused’s alleged blood-stained clothes were not recovered, and there was no forensic evidence connecting the accused to the murder. He also admitted that Asenath did not witness the murder and that Fred was his star witness. 11. Section 63 of the Evidence Act requires oral evidence to be direct; that is, where a fact could be seen, heard or otherwise perceived, the witness who saw, heard or perceived it should testify to it. PW4's evidence as to what Fred and Asenath allegedly told him was not direct evidence of those facts. Those alleged statements, in the absence of the makers, cannot safely be used to establish the essential link between the accused and the unlawful act that caused death. 12. The court is alive to the fact that the prosecution is not required to prove its case beyond a reasonable doubt at this stage. However, the court is equally not permitted to place an accused person on his defence merely to fill gaps in the prosecution's case. The prosecution established that Duncan Oirere Ayuka died from unlawful violence. It did not, however, adduce admissible and direct evidence placing the accused at the scene as an assailant, proving that he participated in the attack, or connecting him to the fatal injuries. 13. The absence of an eyewitness, by itself, is not fatal where there is cogent circumstantial evidence. In this case, however, the alleged circumstantial links depend almost entirely on untested statements of absent witnesses, without recovery of the weapon, without recovery of the alleged blood-stained clothes, without forensic evidence, and without any direct evidence from the alleged material witnesses. What remains is suspicion, not a prima facie case. 14. Having considered the totality of the prosecution evidence, I find that no reasonable tribunal properly directing itself on the law and the evidence could convict the accused even if he elects to remain silent in his defence . The prosecution has therefore failed to establish a prima facie case against the accused. 15. Accordingly, I find that the accused **has no case to answer** and I acquit the accused, **James Nyamasege Omare**, of the charge of murder under Section **306(1) of the Criminal Procedure Code** 16. The accused shall be set at liberty forthwith unless otherwise lawfully held. Surety is discharged. **T. A. ODERA** **JUDGE** **11.5.26** **DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 11TH DAY OF MAY 2026 IN THE PRESENCE OF ACCUSED , HIS COUNSEL MR MAGARA , MR KOIMA FOR PROSECUTION & CA KIPCHIRCHIR .**