https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9759

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA COUNTY COURT NAME: MOMBASA HIGH COURT CASE NUMBER: HCCRC/E003/2025 REPUBLIC VS BRYAN OYARE AND JOSEPH OTIENO RULING Preliminaries 1. The 2 accused persons herein were charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 Laws of Kenya 2. The Particulars of the offence as per the information dated 7th FEBRUARY , 2025 are :That on the 5th day of January 2025 at Utange Mkunguni Area, Kisauni Sub-County within Mombasa County, jointly with others, not before court murdered AISHA AKINYI ABUBAKAR SENGE. 3. The 2 accused persons took plea denying the offence and the case was set down for hearing. The prosecution has so far tendered evidence by calling ten (10) witnesses and the question now at this stage, for this court, is to determine whether the prosecution has established a prima facie case against the accused persons to warrant them to be placed on defense. 4. The burden of proof lies on the prosecution throughout and does not shift to the accused person to prove their innocence. That is the only way a fair trial of the accused person can be guaranteed as stipulated in Article 50 (2) of the The Judiciary of Kenya Doc IDENTITY: 35547282752087118776325067094 Tracking Number:OOFUFM2026 1/ 4 Constitution. It follows that the accused persons are under no duty to give any evidence in 5. defense to rebut the prosecution’s case. An accused persons has the right to remain silent and the court would decide the case on the basis of the evidence adduced, without making any adverse inference against him. Analysis and Determination I have considered the evidence so far adduced from the prosecution’s side, 6. and the issue before me at this stage is whether the evidence so far adduced warrants calling upon the accused to defend himself. In other words, does the accused have a case to answer? 7. Having said so, the standard of proof required in criminal cases is that of beyond reasonable doubt. Nonetheless as earlier stated, that standard is not applicable at this stage where the prosecution is only expected to have established a prima facie case against the accused person to warrant him to be placed on his defense. A prima facie case is established where the evidence tendered by the Prosecution is sufficient on its own for a court of law to return a guilty verdict even if the accused opts to remain silent. 8. Under Section 306 (1) of the Criminal Procedure Code. “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 defense may desire to submit, record a finding of not guilty.” 9. The court, at this stage, is considering whether the accused has a case to answer. A case to answer was defined in the case of Republic – Versus - Joseph Shitandi & Another (2014) eKLR as follows: - “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.” 10. The procedure in determination whether indeed, the accused has a case to answer was discussed in the case Republic – Versus - Stephen Chomba Kamau (2021) eKLR thus: - “REPUBLIC -V- SAMUEL KARANJA KIRIA (2009) eKLR Justice J.B The Judiciary of Kenya Doc IDENTITY: 35547282752087118776325067094 Tracking Number:OOFUFM2026 2/ 4 Ojwang (as he then was) stated:- ‘The question at this stage is not whether or not the accused is guilty as charged but whether there is cogent evidence of his connection with the circumstances in which killing of deceased occurred. That the concept of prima facie case dictates as a matter of law that an opportunity created by this court for the accused to state his own case regarding the killing. The governing law on this point is well settled ... The Court of Appeal is Criminal Appeal No. 77/2006 expressed that too detailed analysis of evidence stage at no case to answer stage is undesirable it the court is going to put accused on his defence as too much details in the trial court’s ruling could then compromise the evidentiary quality of the defense to be mounted.’” Conclusion and Disposition. 11. Having considered the evidence of the ten (10) prosecution witnesses and without delving deep into the merits of that evidence as that would prejudice the accused persons herein, I am satisfied that a prima facie case has been established against each of the 2 accused persons to warrant each to be placed on their defense. In the foregoing, I find that JOSEPH SUNDAY OTIENO alias BRIAN SHIKUKU MUDARI THE 1ST ACCUSED AND BRYAN TEMPER OYARE THE 2ND ACCUSED have a case to answer and I accordingly place each of them on his defense. Their rights under Article 50 (2) (i) (k) and (l) of the Constitution as read with Section 306 (2) of the Criminal Procedure Code are guaranteed and explained to the accused persons in the Accused person comprehends. IT IS SO ORDERED ACORDINGLY. RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS … ….18th…………DAY OF ………June............., 2026 ………………………………………………… ….. HON. LADY JUSTICE W. M. KAGENDO (JUDGE) HIGH COURT OF KENYA AT MOMBASA The Judiciary of Kenya Doc IDENTITY: 35547282752087118776325067094 Tracking Number:OOFUFM2026 3/ 4 (CRIMINAL DIVISION) M/s. Bebora, Court Assistant; Mr Sirima...................State Counsel The ACCUSED PERSONS SIGNED BY/FOR: □ TH E J U D I C I A R Y O F K E N Y A ★ HON. LADY JUSTICE WENDY MICHENI Mombasa High Court High Court Criminal Date: 2026-06-20 19:24:47 The Judiciary of Kenya Doc IDENTITY: 35547282752087118776325067094 Tracking Number:OOFUFM2026 4/ 4