Republic v Munga Bakari Mwangeni

unsworn statement, and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether it is intended to call any witnesses as to fact other than the accused person himself; and upon being informed thereof, the judge shall record the fact. 3. If the accused person says that he does not intend to give evidence or make an unsworn statement, or to adduce evidence, then the advocate for the prosecution may sum up the case against the accused person; but if the accused person says that he intends to give evidence or make an unsworn statement, or to adduce evidence, the court shall call upon him to enter upon his defence. 4. The law is that after hearing the testimony of the prosecution witnesses, the court is required to determine whether it considers that there is evidence that the accused herein committed the ofience. In the event that the court is so satisfied, it shall inform the accused of his right to address the court. This may be done either personally or by his advocate. The accused shall also be informed of his right to give evidence on his own behalf, or to make an unsworn statement, to call witnesses in his defence, and to state whether he intends to call any witnesses as to fact other than himself. Having done so, the court shall record the fact. 5. In the present case, this Court is called upon to determine if, based on the evidence adduced by the prosecution, a prima facie case has been established. In other words, the Court must determine if, after properly directing its mind to the law and the evidence on record, it can convict the accused even if he chooses to give no evidence. 6. In this regard, I associate with the holding in Republic vs. Abdi Ibrahim Owl [2013] eKLR where Mutuku, J. defined a prima facie case as follows: “ Prima facie” is a Latin word defined by Black’s Law Dictionary, 8th Edition as “Sufficient to establish a fact or raise a presumption unless disproved or rebutted”. “Prima facie case” is defined by the same dictionary as “The establishment of a legally required rebuttable presumption”. To digest this further, in simple terms, it means the establishment of a rebuttal presumption that an accused person is guilty of the ofience he/she is charged with. 7. The learned Judge went on to cite Ramanlal Trambaklal Bhatt v. R [1957] E.A 332 at 334 and 335, where the Court of Appeal stated: Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one “which on full consideration might possibly be thought sufficient to sustain a conviction.” This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is “some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence”. A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence……. It is may not be easy to define what is meant by a “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is ofiered by the defence.” (Underlining is mine). 8. As I consider the evidence adduced by the prosecution, I am keenly aware that at this stage, it is undesirable to give a reasoned ruling. Suffice it to say that having considered the material placed before https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14292/eng@2025-10-13 2

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me and without delving further into the evidence adduced, I am satisfied that the prosecution has established a prima facie case. The accused has a case to answer and is accordingly placed on his defence. DATED SIGNED AND DELIVERED IN MALINDI THIS 13TH DAY OF OCTOBer 2025 ............................. M. THANDE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14292/eng@2025-10-13 3

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