1.The accused herein, Munyao Matha Muthama, was charged with Murder contrary to sections 203 as read with section and 204 of the Penal Code, Cap 63. It is alleged that the accused person on the 18th day of November, 2014 at Nduuni Village, Yathui Location in Mwala Sub-County within Machakos County murdered Hellen Mbinya Kimatu (the Deceased). The Accused person denied having committed this offence and as such, a plea of not guilty was entered.
2.The prosecution’s evidence in summary was that on 18th November, 2014, the deceased, aged 14 years old, had gone to a nearby thicket to fetch firewood. She carried with her a rope and a panga for the purposes. The ticket where she went was the place where her brother, Martin Mbuvi Kimatu, (PW6) and Simon Muia Nguyo, PW5, were grazing. The accused was also grazing the goats belonging to pw3 nearby. PW.5 and PW6 then left the place briefly to go and drink some water. When they returned to the field, they did not find either the accused or the deceased and they proceeded home. At home they did not find the deceased. When the deceased’s mother, PW1, returned home, she found that the deceased had not returned. A search for her was then mounted and her body was ten discovered in a thicket facing upwards with scratch marks on the neck while her underpants were lowered with foam coming from her mouth and blood oozing from her nose. Next to the body were the panga and the rope. An alarm was then raised and the neighbours appeared including the accused. PW5 and PW6 explained what had transpired when the accused was mentioned he attempted to run away but was apprehended. His trousers were muddy and were bloodstained.
3.When his pair of trousers were subjected to forensic examination by Lawrence Kinyua Muturi, a Government Analyst, whose report was produced by his colleague, PW11, Susan Wanjiru Ngugi, it was fund that the blood on her trousers were those of the deceased.
4.I have considered the material on record as well as the submissions made on behalf of the accused in this ruling where the court is being called upon to decide whether or not the prosecution has made out a prima facie case against the accused that would warrant this court to call upon him to give their defence. In other words, does the accused have a case to answer? In Republic vs. Abdi Ibrahim Owl  eKLR a prima facie case was defined as follows: -
5.The question that this court has to deal with and answer at this stage is therefore whether based on the evidence before this Court, the Court after properly directing its mind to the law and the evidence may, as opposed to will, convict if the accused chose to give no evidence. It was therefore held in Ronald Nyaga Kiura vs. Republic  eKLR wherein paragraph 22 it is stated as follows:
6.Oxford Companion of Law at pg 907 defines “prima facie” in the following terms:
7.That there is a danger in making definitive findings at this stage, especially where the Court finds that there is a case to answer is not farfetched and the reasons for not doing so are obvious. As was appreciated by Trevelyan and Chesoni, JJ in Festo Wandera Mukando vs. The Republic  KLR 103:
8.In my view, where clearly the prosecution’s case as presented even if it were to be taken to be true would still not lead to a conviction such as where for example an accused has not been identified or recognised and there is absolutely no evidence whether direct or circumstantial linking him to the offence it would be foolhardy to put him on his defence. There is no magic in finding that there is a case to answer and a case to answer ought only to be found where the prosecution’s case, on its own, may possibly, though not necessarily, succeed. An accused person should not be put on his defence in the hope that he may prop up or give life to an otherwise hopeless case or a case that is dead on arrival. It was therefore held by the Court of Appeal decision in the case of Anthony Njue Njeru vs. Republic Crim. App. No. 77 of 2006,  eKLR that:
9.I therefore agree with the position adopted by the High Court of Malaya in Criminal Appeal No. 41LB-202-08/2013 – Public Prosecution vs. Zainal Abidin B. Maidin & Another that:
10.The court in Republic vs. Prazad  2A Crim R 45, King CJ held the very same standard on a prima facie case in the following terms:
11.In this case, the evidence of PW5 and PW6 was that the accused was within the vicinity where the deceased was and that it was the deceased who was last left at the place before the body of the deceased as recovered. According to the evidence of PW11, the bloodstains on the accused’s pair of trousers were those of the deceased.
12.From the evidence on record, it is clear that no one witnessed the circumstances under which the deceased met her death. It is however clear that the prosecution’s evidence is based, partly, on the allegation that it was the accused who was last seen with the deceased persons and partly on the evidence of PW11. Regarding the doctrine of “last seen with deceased” I will quote from a Nigerian Court case of Moses Jua vs. The State (2007) LPELR-CA/IL/42/2006. That court, while considering the ‘last seen alive with’ doctrine held:
13.In yet another Nigerian case the court considering the same doctrine, in the case of Stephen Haruna vs. The Attorney-General of the Federation (2010) 1 iLAW/CA/A/86/C/2009 opined thus:
14.Whereas upon consideration of the totality of the evidence at the end of the trial, the court may well find that the prosecution has failed to prove its case beyond reasonable doubt, it is my view that that is not the same thing as saying that a prima facie case has not been made out. As has been said time and again a prima facie case does not necessarily mean a case which must succeed. In other words, despite finding that a prima facie case has been made out, the Court is not necessarily bound to convict the accused if the accused decides to maintain his silence. At the conclusion the Court will still evaluate the evidence as well as the submissions and make a finding whether, based on the facts and the law, the prosecution has proved its case beyond reasonable doubt, which is not the same standard applicable to the finding of existence of a prima facie case for the purpose of a case to answer.
15.In May vs. O’Sullivan  92 CLR 654 it was therefore held that:
16.The test in such matters was therefore laid down in Republic vs. Galbraith  WLR 1039 in the following words:
17.Accordingly, I will refrain from delving further in this matter. Having considered the material placed before me I find, at this stage at least, that based on the doctrine of “last seen with” and evidence of the three witnesses, PW5, PW6 and PW11, the prosecution has established a prima facie case for the purposes of a finding that the accused has a case to answer. As to whether the said evidence meet the threshold for convicting an accused is a matter that will have to be considered at the end of the trial.
18.I accordingly place the accused on his defence. It is so ordered.