1.Peter Mwebia (Accused) is charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the charge are that on June 8, 2017 at Kathiranga village, Githongo Location Abothuguchi West Division, Imenti Central Sub-County within Meru County murdered Diana Makandi
2.Accused denied committing the offence and the prosecution has called seven witnesses who have testified against him and closed its case on March 22, 2023.
3.At this stage, court is called upon to determine whether, based on the evidence adduced, the prosecution has established a prima facie case to warrant the Accused person to be placed on his defence to answer to the charge.
4.It is important to note that the burden of proof lies on the Prosecution throughout the trial to prove their case against the accused person. That burden does not shift to the accused person. This is so because the accused person’s constitutionally guaranteed rights include the right to remain silent, the right to adduce and challenge evidence and the right not to give any incriminating evidence. However, at this stage, the prosecution is not expected to have proved their case against the accused person beyond reasonable doubt. The measure is for a prima facie case to be established.
6.Having considered the testimonies of the seven prosecution witnesses, the question is whether the evidence tendered establishes a prima facie case against the accused, or whether the accused has a case to answer.
8.A prima facie case is therefore 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.
10.None of the seven prosecution witnessed Accused stab the deceased. The evidence discloses that Accused was suspected to have stabbed the deceased only for the reason that he had allegedly been threatening to harm his ex-wife PW1 from who he had separated.
11.From the foregoing, I find that the court is likely to embarrass itself if it places Accused on his defence for the evidence on record is not sufficient to sustain a conviction in the event that he exercises his right to give no defence.
12.In Sawe v Rep  KLR 364 the Court of Appeal held:
13.Consequently, under the Provisions of Section 306 (1) of the Criminal Procedure Code, Accused is hereby found not guilty and it is ordered that he be set at liberty unless otherwise lawfully held.