Republic v Mulongo (Criminal Case E095 of 2025) [2025] KEMC 442 (KLR)
The bottom line
#A Bungoma court acquitted a man accused of conspiracy to defraud because suspicion alone, without solid evidence of an agreement, cannot justify a conviction in Kenya.
What this practically means
#Executive summary
#Key legal issues
#What constitutes a prima facie case at the close of the prosecution case
The trial court must be satisfied that the prosecution evidence is sufficient on its own to support a conviction if no rebuttal is offered; the standard of proof for conviction is not in issue at this stage
Relying on Ronald Nyaga Kiura v Republic, the court set out that at the close of the prosecution case the trial court determines whether a prima facie case has been made out sufficient to place the accused on his defence under section 211 of the Criminal Procedure Code, without concerning itself with the beyond-reasonable-doubt standard required for conviction.
Whether the prosecution proved an agreement or common intention between the Accused Person, Joshua and Joyce to defraud PW1
No agreement was proved; PW2's corroborating evidence was largely hearsay and critical evidence such as phone data and call logs was not adduced
The court found that only PW1 was privy to the alleged conversation with the Accused Person. PW2's evidence of the conspiracy was hearsay. The investigating officer failed to produce phone data, message logs or call logs, or to trace Joyce Cheptoo, and the court held that conspiracy to defraud cannot be proved beyond reasonable doubt by the oral testimony of a single witness.
Whether the Accused could be placed on his defence on the evidence as it stood
No - doing so would rest on suspicion and require the accused to fill gaps in the prosecution case
The court held that the evidence created reasonable doubt which must be resolved in favour of the Accused, and that placing him on his defence would amount to inviting him to prove his innocence by filling gaps in the prosecution case, which the law does not permit.
Legal principles established
#- At the close of the prosecution case, a prima facie case is established where the evidence is sufficient for a court to return a guilty verdict if no rebuttal is offered
- Suspicion, however strong, cannot justify a conviction
- The offence of conspiracy requires an agreement between two or more persons, which may be proved by inference from criminal acts done in pursuance of a common criminal purpose
Court orders
#- 1.The Accused Person is acquitted under section 210 of the Penal Code for the offence of conspiracy to defraud contrary to section 317 of the Penal Code
- 2.The Accused Person is set at liberty unless otherwise lawfully held
- Jurisdiction invoked
- Criminal jurisdiction under the Penal Code (section 317) and Criminal Procedure Code (sections 210, 211)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Mulongo (Criminal Case E095 of 2025) [2025] KEMC 442 (KLR)", Case Analysis (2025). Kitale CMC CR. No. E4944 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/442/eng@2025-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.