Republic v Omar Mageto Mwachizi & 1 other

7. Section 306(2) of the CPC provides that when the evidence of the witnesses for the prosecution has been concluded and the court is of the opinion that there is evidence that the accused person or any one or more of several accused persons committed the offence, the court should proceed to put the accused on their defence and thereby the accused is supposed to present evidence in defense. 8. What constitutes a prima facie case to require an accused person to be called upon to offer a defence has been explained in the case of Ramanlal Trambaklal Bhatt v R [1957] E.A 332 at 335, as follows: “ 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 true, as Wilson, J., said that the court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively; that final determination can only properly be made when the case for the defence has been heard. It 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 offered by the defence.” 9. From the above exposition, it is imperative that for the court to find at this stage that a prima facie case has been made out and that the accused person has a case to answer, there must be evidence sufficient to warrant a conviction, if no explanation is offered in defence. 10. This court is, however alive to the fact that at this stage, it should not make definitive findings on the evidence tendered thus far, even if it were to find that the accused person has a case to answer. The court is therefore not required to give a reasoned ruling at this point, as was held in the case of Festo Wandera Mukando v Republic [1980] KLR 103, that: “ ...we draw attention to the inadvisability of giving reasons for holding that an accused has a case to answer. It can prove embarrassing to the court and, an extreme case, may require an appellate court to set aside an otherwise sound judgment. Where a submission of “no case” to answer is rejected, the court should say no more than that it is. It is otherwise where the submission is upheld when reasons should be given; for then that is the end to the case or the count or counts concerned.” 11. I have considered the evidence of the ten (10) prosecution witnesses. I am satisfied that a prima facie case has been established against the accused persons to warrant then to be placed on their defence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18442/eng@2025-10-30 2

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12. Accordingly, the accused persons are hereby placed on their defence under section 306(2) of the CPC. Their rights under Article 50 (2) (i) (k) and (l) of the Constitution as read with Section 306(2) of the Criminal Procedure Code (Cap. 75) Laws of Kenya shall be explained to him. 13. Orders accordingly. RULING DELIVERED, DATED AND SIGNED IN OPEN COURT AND VIRTUAL PLATFORM, TEAMS THIS 30TH DAY OF OCTOBER 2025. HON. ANDAYI W. F. JUDGE In the presence of: Accused persons in Shimo La Tewa prison appearing virtually. Kabiaro holding brief of Mbwiza Rashid for the accused person. Vallerie (Ms) for the State Ummu - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18442/eng@2025-10-30 3

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