1.The three accused persons named here are jointly charged with the murder of Sarah Samante Maleton contrary to section 203 as read with section 204 of the Penal Code. They are accused of committing this offence on the 26th day of August, 2018 together with others not before court, at Kumpa area of Kajiado Central Sub-county within Kajiado County.
2.After calling a total of fifteen (15) witnesses, the State closed its case. It is the duty of this court to evaluate and consider the evidence that has been produced against the accused persons and make a determination as to whether the prosecution has discharged its mandate of making out a case against the accused persons to require them to be called upon to testify in defence.
3.We are at the stage of the trial where the court is required to address itself to the requirements of the provisions of section 306 (1) and (2) of the Criminal Procedure Code. It provides as hereunder:
4.In complying with the requirements of section 306 (1) and (2) of the Criminal Procedure Code the court is determining whether a prima facie case has been made out or not against the accused under trial and make a determination as the case may be. In Republic vs. Abdi Ibrahim Owl  eKLR, the court defined, in the following terms, what a prima facie case is:
5.In Ronald Nyaga Kiura v Republic  eKLR, the court held similar view as in the cited case above. In this case the court stated as follows:
6.I understand this to mean that a prima facie case is made out when there is sufficient and credible evidence for the court to rely on, even without the accused giving evidence in defence, to make a finding of guilty. Courts ought to be cautious in giving reasons why they make a finding that the accused has a case to answer. Suffice it to state that the accused has a case to answer and leave it at that. Trevelyan and Chesoni, JJ in Festo Wandera Mukando v The Republic  KLR 103 stated as follows in this regard:
7.The deceased in the case under consideration was murdered probably on the nigh of 26th August 2018. She had gone to visit her grandparents at Kumpa. She was expected to return home on 27th August 2018 to prepare to return to school. Her body was found in a thicket about 400 meters from her grandmother’s house by a herds boy called Saitabau (not a witness). Investigations leading to her death led police to arrest the three accused persons. The 1st accused is said to have been seen with the deceased by Noah Ole Neapana (PW9) on 26th August 2028 at 3pm. Noah told the court that the deceased and 1st accused parted ways but the 1st accused followed the deceased. Further that on 27th August 2018 the 1st accused told Noah that deceased had gone back to school making Noah caution the 1st accused not to play with the deceased because she was a school girl.
8.The 2nd accused is mentioned in evidence by Jeremiah Sakaiyan Parmuat (PW3) as having visited the home of deceased’s grandmother asking for deceased’s brother and further that Jeremiah took 2nd accused’s phone and dialled the last telephone number on that phone which number happened to be that of the deceased.
9.The 3rd accused is implicated in this matter because of the handset (Ex. 1) that was identified as the phone the deceased was using at the time of her death which phone is said to have been stollen on the night she was killed.
10.I have considered the evidence. It is clear to me that the prosecution is relying on circumstantial evidence. I have considered the submissions by the three counsel representing the accused persons. The three counsel made joint submissions and told the court that the evidence is not sufficient to make a case to answer for any of the accused persons.
11.Having taken into account all the evidence, the relevant law and the authorities I have cited above, it is my considered view that the Prosecution has made out a prima facie case against each of the accused persons before the court. In compliance with Section 306 (2) of the Criminal Procedure Code, I hereby place each of the accused persons on their defence. I hereby inform each of them of their right to inform this court how they wish to tender evidence in defence, whether they will give a sworn or unsworn evidence and whether they will call witnesses in their defence. Orders shall issue accordingly.