1.The 4 accused persons herein, Susan Kwamboka, Thomas Nyakongo, Wycliffe Mogaka and Josphat Osiemo were jointly charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars were that on May 18, 2022 at Kerema village, Mokomoni Sub-Location, Bosaragei Location in Nyamira North Sub-County within Nyamira County, murdered James Mitema Moturi (hereinafter referred to as the deceased).
2.The Prosecution called a total of 6 witnesses in support of its case. A summary of the prosecution’s case, as stated by the witnesses was that the deceased was on May 19, 2022 found injured and sleeping in his house that had a pool of blood on the floor. The deceased was then rushed to hospital where it is alleged that he informed to PW1 that the 1st Accused lured him to her house where he was assaulted by the 2nd, 3rd and 4th accused. The witnesses d that testified that the deceased died on May 24, 2022 while undergoing treatment at a hospital in Eldoret.
3.The court is, in this ruling, called upon to determine if the prosecution has made out a prima facie case against the accused persons that would warrant their being put on their defence.
4.According to the defence counsel, Ms Shilwatso, the prosecution did not tender sufficient evidence to show that any of the accused persons assaulted the deceased prior to his death. It was further submitted that the prosecution’s case was heavily anchored on mere suspicion and circumstantial evidence that cannot support a conviction. For this argument, the defence cited the decision in Abanga Alias Onyango vs Republic, CRA No 32 of 1990 where the Court of Appeal set out the principles applicable in determining whether circumstantial evidence adduced in a case is sufficient to sustain a conviction as follows: -
5.The prosecution did not present any submissions on a case to answer and confirmed that they will rely on the evidence on record.
6.I have considered the evidence so far presented by the prosecution’s witnesses, the submissions made and the authorities cited. As I have stated hereinabove, the issue before me at this stage is whether the evidence so far adduced warrants calling upon the accused persons to defend themselves. In other words, do the accused have a case to answer? In Republic vs Abdi Ibrahim Owl  eKLR a prima facie case was defined as follows: -
7.Similarly, in Anthony Njue Njeru vs Republic  eKLR the Court of Appeal held that: -
8.The question that this court has to deal with at this stage is therefore, whether, based on the evidence before this Court, a Court properly directing its mind to the law and the evidence may, as opposed to will, convict if the accused opt to give no evidence. In Ronald Nyaga Kiura vs Republic  eKLR it was held: -
9.Oxford Companion of Law defines “prima facie” in the following terms:
10.Courts have taken the position that there is a danger in making conclusive findings at this stage, especially where the Court finds that there is a case to answer. The reasons for this position was explained in Festo Wandera Mukando vs The Republic  KLR 103 as follows:-
11.In instances where 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 mentioned as having been involved in the offence in question 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. This is to say that a case to answer ought only to be found where the prosecution’s case, on its own, may possibly, though not necessarily, succeed. In other words, 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. Indeed, the defence case is not meant to fill in the gaping gaps in the prosecution case. In Public Prosecution vs Zainal Abidin B. Maidin & Another High Court of Malaya in Criminal Appeal No. 41LB-202-08/2013 it was held that:
12.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:
13.In the instant case, I note that the evidence linking the accused persons to the case is what the deceased allegedly told PW1 regarding the people who allegedly assaulted him. As I have already stated hereinabove, this is not the stage to critically examine the said evidence and make a conclusive determination as to whether the accused stands guilty or not. I find that it will, in the circumstances of this case, be prudent to hear from the accused persons before making a conclusive determination.
14.Accordingly, I will refrain from delving further in this matter. Having considered the material placed before me I am satisfied that the prosecution has established a prima facie case for the purposes of a finding that the accused has a case to answer. Whether or not the said evidence meets the threshold for a conviction is a matter that will be considered at the end of the trial
15.I accordingly place the accused persons on their defence.
16.It is so ordered.