Republic v Aduol alias Bonny & 4 others (Criminal Appeal 189 of 2020) [2026] KECA 155 (KLR)
The bottom line
#Kenya's Court of Appeal reinstated a murder trial it found was ended too early, ruling judges must not assess witness credibility before an accused is put on their defence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.The circumstances under which a trial court finds that a prima facie case has not been made out
- 2.Whether those circumstances prevailed in the case before the trial court
- 3.Whether this Court has power to remit the matter back to the trial court for defence hearing notwithstanding section 379(5) of the Criminal Procedure Code
Key legal issues
#The meaning and threshold of a prima facie case at the close of the prosecution's case
A prima facie case is 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; it is not merely a case which 'might possibly' sustain a conviction, and it is not the same as proof beyond reasonable doubt
The Court traced the settled definition from Bhatt v Republic through Republic v Abdi Ibrahim Owl, Anthony Njue Njeru and Ronald Nyaga Kiura, and reinforced it with comparative authority from Australia, Uganda, Nigeria, Malaysia and England. The test is possibility of conviction on the prosecution evidence as it stands, not certainty; the weight and credibility of the evidence are generally matters for the end of the trial, not the no case to answer stage.
Whether the trial court erred in evaluating witness credibility and inconsistencies in detail at the no case to answer stage
Yes. The stage at which discrepancies in the evidence are scrutinised to determine materiality and weight had not yet been reached; the trial Judge delved too deeply into the evidence and made definitive findings premature to the close of the case
Relying on Festo Wandera Mukando on the inadvisability of definitive findings at this stage, on the Nigerian decision in Tongo v Cop, and on this Court's own decision in Republic v Ayienga, the Court held that where there is some evidence placing the accused at the scene and disclosing a role, questions of believability and weight must await the conclusion of the whole case. Here PW1, PW2 and PW3 placed the respondents at the scene and disclosed their roles, so a prima facie case existed.
Whether the Court of Appeal has power to remit an acquittal under section 306(1) back to the High Court for defence hearing
Yes, where the appeal was not commenced by the certificate procedure in section 379(5) of the Criminal Procedure Code; the declaratory-judgment limitation applies only to that special review jurisdiction, whereas the ordinary appellate power under rule 33 of the Court of Appeal Rules includes remitting proceedings to the superior court
The Court distinguished section 379(5), a special appellate jurisdiction in the nature of review concerned with points of law of exceptional public importance and culminating in a declaratory judgment that cannot reverse an acquittal, from the normal appellate jurisdiction under rule 33, which permits confirming, reversing or varying the decision, remitting with directions, or ordering a new trial. The respondents' reliance on Republic v Ayienga was misplaced because the record did not show compliance with the section 379(5) procedure in that case.
Legal principles established
#- A prima facie case at the close of the prosecution's case is one on which a reasonable tribunal, properly directing itself, could convict if no explanation is offered by the defence; a case which merely 'might possibly be thought sufficient to sustain a conviction' is not enough
- At the no case to answer stage the question is whether the accused could be convicted on the prosecution evidence, not whether he ought to be convicted; the court must not make definitive findings on credibility or weight of evidence at that stage
- Where the prosecution's case, taken at its highest, would not lead to a conviction, an accused should not be placed on his defence merely in the hope that he will fill gaps in the prosecution case
- An acquittal under section 306(1) of the Criminal Procedure Code in a trial before the High Court is reviewable by the Court of Appeal on the DPP's certificate under section 379(5), in which case only a declaratory judgment may issue; but where the appeal is not commenced under that procedure, the Court of Appeal's ordinary powers under rule 33 include the power to remit the matter to the trial court for defence hearing
- A finding of a prima facie case does not mean a case which must succeed; the standard for a case to answer is not the same as the standard of proof beyond reasonable doubt required for conviction
Court orders
#- 1.The appeal is allowed
- 2.The ruling of the learned Judge acquitting the respondents on grounds of failure by the prosecution to establish a prima facie case is set aside
- 3.The matter is remitted to the High Court for the purposes of the defence case
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction over a superior court exercising original jurisdiction under rule 31(1)(a) of the Court of Appeal Rules; power to remit under rule 33 of the Court of Appeal Rules, as read with the Criminal Procedure Code
Relief refused
#Reversal of the acquittal by way of declaratory judgment only, as urged by the respondents on the authority of Republic v Ayienga
The Court held that section 379(5) of the Criminal Procedure Code applies only where the appeal is commenced by the DPP's certificate procedure, which was not used here; in the normal appellate jurisdiction the Court has power under rule 33 to remit the proceedings
Costs
No costs order appears in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Having considered the material placed before us, we accordingly find merit in this appeal, which we hereby allow. We set aside the ruling of the learned Judge acquitting the respondents on grounds of the failure by the prosecution to establish a prima facie case. We remit the matter to the High Court for the purposes of the defence case.
Defence hearing is not a resuscitation procedure for a case that is in the ICU.
The operating phrase, we emphasize, is “could convict” as opposed to “shall convict”. In other words, what is being considered at the stage of no case to answer is the possibility of a conviction as opposed to its certainty.
It is therefore our view that since this appeal was not commenced by the procedure set out in section 379(5) of the Criminal Procedure Code, we have power to remit the matter back to the trial court.
Whereas upon consideration of the totality of the evidence at the end of the trial, the court may well find that the prosecution failed to prove its case beyond reasonable doubt, that is not the same thing as saying that a prima facie case has not been made out.
Issues in the judgment
#The judgment contains a typographical error within the verbatim quotation from Bhatt v Republic ('It is may not be easy to define'), reproducing the misprint in the passage relied on
The date of the memorandum of appeal is given as 29th August 2025 while the acquittal date is not stated, yet section 379(5) relevantly involves a one-month filing timeline; the Court does not explain which appellate track the DPP used, and the judgment itself notes that 'the stage at which those discrepancies would be subjected to detailed scrutiny... had not yet reached' while simultaneously finding a prima facie case
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Michuki v Republic (Criminal Appeal 14 of 2017) [2026] KECA 1357 (KLR)[2026] KECA 1357 (KLR)3 Jul 2026applied
Cite this brief
#Cite this brief
Caselaw, "Republic v Aduol alias Bonny & 4 others (Criminal Appeal 189 of 2020) [2026] KECA 155 (KLR)", Case Analysis (2026). Not stated in the judgment (appeal memorandum dated 29th August 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/155/eng@2026-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.