https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10293

Republic v Wekesa (Criminal Appeal E031 of 2025) [2026] KEHC 10293 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEHC 10293 (KLR) Republic of Kenya In the High Court at Bungoma Criminal Appeal E031 of 2025 RK Ondieki, J June 9, 2026 Between Republic Prosecutor and Hamfrey Wekesa Appellant (Being an Appeal against a ruling by Hon. H. Getenga (R.M.) in Chief Magistrate’s Court Case No. E01726 of 2023, Delivered on 27th March, 2025) Ruling 1.There comes a time, upon close of the prosecution case in any Criminal Proceedings, that the court must engage in a balancing act between the standard of proof on one hand and whether there is credible evidence proffered so far, against the accused persons on the other hand. Lord Devlin in Trial by Jury, the Hamlyn Lectures (1956) republished in 1988 puts it pithily and entertainingly in these words; “There is in truth a fundamental difference between the question whether there is any evidence and the question whether there is enough evidence. I can best illustrate the difference by an analogy. Whether a rope will bear a certain weight and take a certain strain is a question that practical men often have to determine by using their Judgment based on their experience. But they base their Judgment on the assumption that the rope is what it seems to the eye to be and that it has no concealed defects. It is the business of the manufacturers of the rope to test it, strand by strand if necessary, before he sends it out to see that it has no flaw. That is a job for an expert. It is the business of Judges as the expert who has a mind trained to make examinations of the sort to test the chain of evidence for the weak links before he sends it out to the jury, in other words, it is for him to ascertain whether it has any reliable strength at all and then for the jury to determine how strong it is. The trained mind is the better instrument for detecting flaws in reasoning, but if it can be made sure that the jury handles only solid arguments and not sham, the pooled experience of twelve men is the better instrument for arriving at just verdict. Thus, logic and common sense put together.” 1. 2.The Respondents were arraigned and charged with the offence of Stock Theft contrary to section 278 of the Penal Code and the particulars of the offence were that on the 5th day of September, 2023 at unknown time at Turumba area in Bumula Sub County within Bungoma County, jointly stole a cow valued at Kshs5000, the property of Patrick Mafumo Marumbu. 3.Four witnesses were summoned who testified for the State and upon close of the prosecution case, the Learned Magistrate made a finding that the Prosecution had failed to establish a prima facie case and in his ruling delivered on the 27th March, 2025, the Respondent were acquitted under section 215 of the CPC. 4.The State was aggrieved by the Ruling on acquittal and by Petition of Appeal, the State has set out seven (7) grounds of appeal in which they pray for a reversal of Acquittal and to be substituted with an Order with a prima facie to warrant the Respondent to be put on their defence. These are the lamentations;a.The Learned Trial Magistrate erred in fact and law by failing to find that the prosecution had proved its case beyond reasonable doubt as per the provisions of section 215 of the Criminal Procedure Code.b.The Learned Trial Magistrate erred in fact and law by disregarding credible evidence of PW1 and PW3.c.The Learned Trial Magistrate erred in fact and law in failing to find that the evidence of PW1 and PW3 was that of recognition.d.The Learned Trial Magistrate erred in fact and law by failing to consider that there was sufficient moonlight and torch lights that enabled PW1 and PW3 to identify the Respondents.e.The Learned Trial Magistrate erred in fact and law by failing to consider that PW1 and PW3 were in close proximity of three (3) metres and that they are neighbours.f.The Learned Trial Magistrate erred in fact and law by failing to evaluate and scrutinize the evidence adduced by the prosecution witnesses.g.The Learned Trial Magistrate misdirected herself in fact and law by failing to appreciate the seriousness of the offence committed by the Respondents. 4.The Appellant and Respondent agreed to dispose of the Appeal by Written submissions.The Respondent’s submissions:a.In respect to proof beyond reasonable doubt, it was submitted that what was required was prima facie case under section 210 of the CPC and not section 215 of the CPC.b.In respect to credible witnesses, it was submitted that PW1 saw two people while PW3 says that he saw more than 6 people. Additionally, there was contradictions on the date the offence is alleged to have been committed. The evidence is thus, contradictory.c.In respect to grounds 3 &4 it was submitted that the suspects were facing down cutting a cow and so the moonlight shone from the sky and as such, there was no way the faces of the suspect would be identified.d.In respect to ground 6 &7, it was submitted that Article 50(2)(a), the accused person is presumed innocent till proven guilty and under this article, the accused is guaranteed the right to remain silent and not to testify and to also not give self-incriminating evidence. 5.In conclusion, the counsel submitted that on strength of Ronald Nyaga Kiura Vs Republic (2018) KEHC 5030 KLR, the weight of the evidence must be such that it is sufficient for then trial court to place the accused in his defence.Appellants written submissions:a.The Respondents were seen and identified by their faces and voices as they are neighbours to PW3.b.Relying on the decisions of Wamunga Vs R (1989) KLR 424, Leonard Kipkemoi Vs R (2018) eKLR and R Vs Turnbull & Others (1976) 3 ALL ER 549, it was submitted by the Appellant that, they settled on recognition as the suspect hail from the same village. Analysis and Determination: 6.The only issue for determination as I understand is whether or not the State had proved a prima facie case to warrant the Respondent to be placed on their defence. 7.It must be reckoned that the Criminal Procedure Code provides no definition as to what is the meaning of a prima facie case. However, the doctrine has arisen from legal scholarly works and various jurisprudential decisions by the Superior Courts to achieve a clear understanding of the concept and its applicability. 8.Therefore, many are the decisions on what constitutes a prima facie case and much as I may not able to sample all the decisions, I shall sample a few as a guide so that I do not lose my footing when I come back to the surface. 9.In respect of the measure of a prima facie case within the permissible limits of Criminal Law, the standard of proof required is not that envisaged in the dictum by Lord Denning in Miller Versus Minister of Pensions [1947] 2 ALL ER 37 in which he held: “That degree is well settled it need not reach certainty, but it must carry a high degree of probability, proof beyond reasonable doubt, does not mean proof beyond a shadow of doubt…” 2. 10.So that in respect to the case at hand, the burden on a prima facie case to be shown by the prosecution according to Lord Denning, is consistent with the proposition that the degree need not reach certainty but it must carry a high degree of probability but not beyond reasonable doubt, that there exists evidence which can sustain a conviction. 11.In the English Court of Appeal in Republic Versus Galbraith [1981] I WLR, it addressed the concept of prima facie case in this way, where Lord Lane C. J. said: “… a) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty, the Judge will of course stop the case. b) The difficulty arises where there is some evidence but it is of a tenures character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence…”3. 12.Learned Authors of Blackstone’s Criminal Practice 2002 at Section D14 in regard to the question of what constitutes prima facie case laid the following emphasis to determine a motion of no case to answer by the court: “…a) if there is no evidence to prove an essential element of the offence a submission must obviously succeed. b) If there is some evidence which taken at face value establishes each essential element, the case should normally be left to the jury – (in our jurisdiction trial by a single Judge – the case should proceed to the defence). The Judge does, however, have a residual duty to consider whether the evidence is inherently weak or tenuous. If it is so weak that no reasonable jury (read court or tribunal) properly directed could convict on it, then a submission should be upheld. Weakness may arise from the sheer improbability of what the witness is saying, from internal inconsistencies in the evidence or from its being of a type which the accumulated experience of the courts has shown to be of doubtful value. c) The question of whether a witness is lying is nearly always one for the jury; but there may be exceptional cases (such as Shippey 1988 Criminal LR 767) where the inconsistencies whether in the witnesses’ evidence viewed by itself or between him and other prosecution witness) are so great that by reasonable tribunal would be forced to the conclusion that the witness is untruthful. In such a case, and in the absence of other evidence capable of founding a case) The Judge should withdraw the case from the jury.” 4. 13.In Republic Versus Abdi Ibrahim Owl [2013] eKLR a prima facie case was defined as follows: - “Prima facie” is a Latin word defined by Black’s Law Dictionary, 8th Edition as “Sufficient to establish a fact or raise a presumption unless disproved or rebutted”. “Prima facie case” is defined by the same dictionary as “The establishment of a legally required rebuttable presumption”. To digest this further, in simple terms, it means the establishment of a rebuttal presumption that an accused person is guilty of the offence he/she is charged with. In Ramanlal Trambaklal Bhatt v. R [1957] E.A 332 at 334 and 335, the court stated as follows: “Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one “which on full consideration might possibly be thought sufficient to sustain a conviction.” This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is “some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence”. A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence…It is 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.”5. 14.In Ronald Nyaga Kiura Versus Republic [2018] eKLR wherein paragraph 22 it is stated as follows: “It is important to note that at the close of prosecution, what is required in law at this stage is for the trial court to satisfy itself that a prima facie has been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of Section 211 of the Criminal Procedure Code. A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person” 6. 15.The Court of Appeal held in Anthony Njue Njeru Versus. Republic [2006] eKLR that: “…It is a cardinal principle of law that, the onus is on the prosecution to prove its case beyond reasonable doubt and a prima facie case is not made out if at the close of the Prosecution case, the case is merely one, ‘Which on full consideration might possibly be thought sufficient to sustain a conviction’ 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 settled in Bhatt’s Case(supra), we are of the view that the Appellant should not have been called upon to defend himself as all the evidence was one record. It seems the Appellant was required to fill in the gaps in the Prosecution case.”7. 16.The High Court of Malasya in Criminal Appeal No. 41LB-202-08/2013 – Public Prosecution Versus. Zainal Abidin B. Maidin & Another that: “It is also worthwhile adding that the defence ought not to be called merely to clear or clarify doubts. See Magendran a/l Mohan v Public Prosecutor [2011] 6 MLJ 1; [2011] 1 CLJ 805. 8. 15.In Public Prosecutor Versus Saimin & Others [1971] 2 MLJ 16 Sharma J had occasion to observe: ‘It is the duty of the Prosecution to prove the charge against the accused beyond reasonable doubt and the court is not entitled merely for the sake of the joy of asking for an explanation or the gratification of knowing what the accused have got to say about the prosecution evidence to rule that there is a case for the accused to answer.’ 9. 16.Additionally, in Republic Versus. Prazad [1979] 2A Criminal Revision 45, King CJ held the very same standard on a prima facie case in the following terms: “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 answers that the evidence is so lacking in weight, and reliability that no reasonable tribunal could safely convict on it.”10. 17.Stealing is defined in the Black’s Law dictionary 8th Edition as: “To take (personal property) illegally with the intent to keep it unlawfully. The definition of stealing as found in Section 268 of the Penal Code is: “A person who fraudulently and without claim of right takes anything capable of being stolen on fraudulent converts to use of any person, other than the general or special owner thereof any property, is said to steal that thing or property.” 18.In respect to stock theft, it is about stealing stock, domestic animals or livestock basically. The animals capable of being stolen, for the purposes of section 278 of the Penal Code, are a horse, mare, gelding, ass, mule, camel, ostrich, bull, cow, ox, ram, ewe, goat or pig. Under section 267(1) of Penal Code, camel or domesticated animals are also capable of being stolen. The critical element of the offence would be ownership, the taking of the animal, possession and conversion of the thing stolen. 19.It is undisputed that the offence was committed at night and the Respondents are alleged to have been identified by recognition that night. It is imperative therefore to appraise the identification at night. The leading authority is by Lord Widgery, CJ in R Vs Turnbull [1976]3 All ER 549 at page 552 stated as follows: “... The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way...? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? how long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? Recognition may be more reliable than identification of a stranger but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.” Underline being mine. 20.The state settled on the recognition as the Respondents are neighbours. PW3 said that they were passing by the scene of crime from church when they saw the Respondents tying up a cow and pushed it down and started cutting it by pangas. There were more than six people but they recognized the Respondent by their face and voice. PW3 said that they stood at 3 metres away. However, PW1 said that they saw two people “who had a cow and were welding pangas and cutting up the cow. They put the cow on the ground and cut it. We were fearful and just let them be as we presumed they were doing rituals” Voice Identification: 21.It is held in the Turnbull case (supra) that recognition may be more reliable than identification of a stranger but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. The state relied more on identification by faces and voice. In respect to identification by their face, PW1 and PW3 did not tell court if they had torches that they trimmed to see the faces of the Respondents. It is not clear, too, how bright was the moonlight. In respect to voice identification, the witnesses ought to have demonstrated of any communication that took place in their hearing, verbatim in order to appreciate this form of identification. First Report: 22.The importance of this first reports was made out in the case Tekerali Son of Korongozi &Others Vs. R [1952] EACA 259, cited by the appellant in which the Court of Appeal held that, evidence of the first report by the complainant to a person in authority are important as it often provides a good test by which the truth and accuracy of the subsequent statements may be gauged and provide a safeguard against later embellishments or the deliberately made-up case. Truth will always come out in a first statement taken from a witness at a time when recollection is very fresh and there has been no opportunity for consultation with others. The allegations by PW1 and PW3 was that they saw the cow being wrestled to the ground, but they failed to give the colour. I say so because the complainant was categorical that, his cow was black. In the same measure, the eye witnesses did not give the description of the Respondents that night. 23.I must hold which I do that this case was premised on mistaken identity as it did not pass master especially on the identification, lack of first report and description of the Respondents by PW1 and PW3 to the police. 24.In disposal, I find that that the appeal lacks merit and dismiss it. I uphold the findings of the Trial Magistrate. DELIVERED IN THE OPEN COURT THIS 9TH JUNE, 2026.HON. R.K. ONDIEKI,JUDGE