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MagistrateOtherNot stated in the judgment as provided· [2025] KEMC 1 (KLR)

Republic v Ali & 2 others (Criminal Case 3 of 2021) [2025] KEMC 1 (KLR)

High Court of Kenya
21 January 2025
DKD. KAVEDZA
1,154 words in judgment
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The bottom line

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Kenya's High Court found two accused in the Dusit D2 terror attack trial have a case to answer, but the burden of proof stays firmly on prosecutors.

What this practically means

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Executive summary

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This is a ruling on a no-case-to-answer submission arising from the 15th January 2019 Dusit D2 Hotel terror attack at Riverside Mall, in which twenty-one people died. The 1st accused (Unknown alias Mire Abdulahi Ali) was earlier convicted following a plea agreement, so the trial proceeded against the 2nd accused, Hussein Mohamed Abdille Ali, and the 3rd accused, Mohamed Abdi Ali, on various charges under the Prevention of Terrorism Act (Cap 59B). The sole issue was whether the prosecution had established a prima facie case warranting the accused being placed on their defence under section 306(2) of the Criminal Procedure Code (Cap 75). Judge D. Kavedza set out the classic definition of a prima facie case from Ramanlal Trambaklal Bhatt vs R [1957] EA 332, adopted the caution in Festo Wandera Mukando vs The Republic [1980] KLR 103 against giving reasons when rejecting a no-case submission, and endorsed Odunga J's statement in Republic vs Jones Mutua Anthony & 3 others [2019] eKLR that an accused should not be put on defence merely in the hope of rescuing a hopeless case. The court emphasised that the burden of proof remains on the prosecution throughout. Having considered the evidence of fifty-five witnesses, including expert witnesses, the court found a prima facie case and placed both accused on their defence under section 211 of the Criminal Procedure Code.

Key legal issues

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01

Whether a prima facie case was made out against the 2nd and 3rd accused

Holding

Yes; having considered the evidence of fifty-five witnesses, the court was satisfied a prima facie case was made out and placed both accused on their defence under section 211 of the Criminal Procedure Code.

Reasoning

The court applied the Bhatt test that a prima facie case is one on which a reasonable tribunal could convict if no explanation is offered by the defence. It refrained from making conclusive findings on guilt, heeding the caution in Festo Wandera Mukando against giving reasons when rejecting a no-case submission. It also endorsed Odunga J's admonition that an accused should not be put on defence merely in the hope of propping up a hopeless case.

p. 3

Legal principles established

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  • 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; mere scintilla or discredited evidence is not enough.
  • A finding of a case to answer does not shift the burden of proof to the accused; the burden remains on the prosecution throughout the trial.
  • Where a submission of no case is rejected, the court should give no reasons; reasons are required only where the submission is upheld.

Court orders

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  1. 1.The 2nd accused Hussein Mohamed Abdille Ali and the 3rd accused Mohamed Abdi Ali are placed on their defence under section 211 of the Criminal Procedure Code, Cap 75, Laws of Kenya

Authorities

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Legislation

  • Prevention of Terrorism ActCap 59B
  • Criminal Procedure Codesections 306(1), 306(2), 211

Cases cited (3)

  • Ramanlal Trambaklal Bhatt vs R
    [1957] EA 332
  • Festo Wandera Mukando vs. The Republic
    [1980] KLR 103
  • Republic vs Jones Mutua Anthony & 3 others
    [2019] eKLR
Jurisdiction invoked
Criminal jurisdiction under the Prevention of Terrorism Act (Cap 59B) and section 306 of the Criminal Procedure Code (Cap 75)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Ali & 2 others (Criminal Case 3 of 2021) [2025] KEMC 1 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/1/eng@2025-01-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.