Director of Public Prosecutions v Ariri & another (Criminal Case E018 of 2022) [2025] KEHC 18362 (KLR) (20 November 2025) (Ruling) Neutral citation: [2025] KEHC 18362 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NYAMIRA CRIMINAL CASE E018 OF 2022 TW CHERERE, J NOVEMBER 20, 2025 BETWEEN DIRECTOR OF PUBLIC PROSECUTIONS ............................................ REPUBLIC AND HENRY MOMANYI ARIRI .................................................................. 1ST ACCUSED JOSEPH MORARA MUTHARUKI ..................................................... 2ND ACCUSED RULING 1. The Accused, Henry Momanyi Ariri and Joseph Morara Mutharuki are charged with murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that on the night of 04th and 5th September 2022 at Mokomponi Village, Mokomponi sublocation, Nyamira North Sub-County within Nyamira County jointly murdered Dennis Ombasa Nyambega 2. The prosecution closed its case after calling a total of four (4) witnesses in support of its case. 3. Section 306(1) of the Criminal Procedure Code requires the Court to determine, at this stage, whether the prosecution has established a prima facie case. 4. In Ramanlal Trambaklal Bhatt v Republic [1957] EA 332, the Court held: “ A prima facie case 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.” 5. The Court of Appeal in Anthony Njue Njeru v Republic [2006] eKLR afirmed the same principle, noting that a prima facie case is one that, if uncontroverted, might reasonably sustain a conviction. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18362/eng@2025-11-20 1
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6. Applying the standard in Bhatt v Republic (supra), this Court must examine the evidence, taking it at its highest, and determine whether a reasonable tribunal could convict if the accused elected to remain silent. 7. The case against the Accused persons is entirely circumstantial. PW1 and PW2 only discovered the deceased’s body. They did not witness the attack and did not place either of the Accused persons at the scene. There is, therefore, no direct evidence identifying the assailants. 8. The evidentiary weaknesses begin with the chain of custody of exhibits which was never established. PW3 did not personally recover any of the exhibits, and crucially, the prosecution did not call the oficers who allegedly recovered the exhibits. No recovery forms, OB extracts, inventories, or scene documentation were produced. This omission raises serious doubt about the integrity and reliability of the exhibits. 9. Furthermore, the link between the Accused persons and the alleged exhibits was not proved. PW3 admitted that his statement did not specify which items were recovered from which of the two Accused persons, describing this as an oversight. Such a lapse undermines the evidential value of the recoveries and weakens any inference sought to be drawn. 10. The situation is compounded by the absence of forensic evidence. Although PW3 claimed that suspected blood-stained clothing were forwarded to the Government Chemist, no analysis report was produced. Without it, there is no admissible evidence that the stains on the recovered clothing were blood, that they were human blood, or that they matched the deceased. The prosecution’s attempt to link the Accused persons to the fatal injuries sufiered by the deceased is therefore entirely unsubstantiated. 11. Ultimately, the prosecution case rests on the fact that the Accused persons were guards on duty on the material night. However, opportunity alone, without supporting evidence, does not meet the threshold of a prima facie case. As emphasized in Sawe vs. Rep [2003] KLR 364 suspicion, however strong, cannot form the basis of a conviction, nor can it justify calling an accused to answer in the absence of supporting evidence. The circumstantial evidence presented does not form a coherent chain pointing irresistibly to any of the Accused persons and excluding any other reasonable explanation. 12. Even taking the evidence at its highest, no reasonable tribunal properly directing itself, within the meaning of Bhatt v Republic (supra), could convict on the record before this Court. Disposition 13. For the foregoing reasons, I find that the prosecution has not established a prima facie case against Henry Momanyi Ariri and Joseph Morara Mutharuki. 14. Accordingly, pursuant to Section 306(1) of the Criminal Procedure Code, I enter a finding of Not Guilty at this stage and acquit both accused persons of the charge of murder. They shall be set at liberty unless they are otherwise lawfully held. Orders accordingly. DELIVERED AT NYAMIRA THIS 20TH DAY OF NOVEMBER 2025 WAMAE.T. W. CHERERE JUDGE Appearances https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18362/eng@2025-11-20 2
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Court Assistant - Hilda Accused - Present in person For Accused - Mr. Mongáre For the DPP - Mr. Chirchir (SADPP) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18362/eng@2025-11-20 3
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