Republic v Nyamai (Criminal Case 3 of 2017) [2025] KEHC 19503 (KLR) (3 November 2025) (Ruling) Neutral citation: [2025] KEHC 19503 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KITUI CRIMINAL CASE 3 OF 2017 LW GITARI, J NOVEMBER 3, 2025 BETWEEN REPUBLIC ........................................................................................... PROSECUTION AND MUNYAO NYAMAI ..................................................................................... ACCUSED RULING 1. The accused Munyao Nyamai alias Mutia Nyamai is charged with Murder contrary to Section 203 as read with Section 204 of the Penal Code vide information dated 23/1/2017. The particulars are that on 5/1/2017 at Kaliku Location Mutitu Sub-county within Kitui County, murdered Kathina Mulwa. The accused person denied the charge. The prosecution called a total of twelve witnesses and closed their case. 2. This is a ruling as to whether the accused has a case to answer. The brief facts of the case are that on 5/1/2017 the deceased, Kathina Mulwa was found in her farm by witnesses with visible injuries on her forehead and blood oozing out of her mouth. The deceased later succumbed to the injuries. A postmortem was later performed on the body of the deceased and the doctor formed the opinion that the cause of death was severe head injury. Investigations commenced and they led to the arrest of the accused who was then charged with this ofience. 3. At this stage of the proceedings, the court is supposed to determine whether a prima facie case has been established to warrant the accused person to be put on his defence as charged. I have considered all the evidence adduced by the prosecution’s twelve (12) witnesses. 4. I have also considered the submissions by the defence counsel Mr. Kilonzi and by the prosecution’s counsel. What constitutes a prima facie case was stated in the case of Ramanlal T. Bhatt -vs- Republic (1957) E.A 332. The court stated that a prima facie case is one on which a reasonable tribunal properly addressing its mind to the law and facts could convict if no explanation is ofiered by the defence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19503/eng@2025-11-03 1
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5. At this stage the court is not supposed to make a finding on the evidence as to whether it is worth of credit, whether it is weighty enough as to prove the case conclusively against the accused. This is because that would amount to determining the case without giving the accused an opportunity to be heard. That would also violate the accused person’s right to adduce evidence. 6. Article 50(2) (K) of the Constitution provides that: “ Every accused person has a right to a fair trial which includes the right – (k) to adduce and challenge evidence.” The final determination on the evidence should be made when the case for the defence has been heard. What the court has to determine at this stage is whether there is a prima facie case. 7. In trials before the High Court, Section 306 of the Criminal Procedure Code provides that when the evidence of the witnesses for the prosecution has been concluded the court is supposed to consider whether there is evidence that the accused committed the ofience it shall inform him of his right to address the court. 8. I have considered the evidence tendered by the twelve witnesses called by the state and I find that the evidence has established a prima facie case that is sufficient to warrant the accused to be placed on his defence. He will opt to give his defence on oath in which case he shall be sworn and after giving his defence, he shall be cross-examined by the prosecution’s counsel. 9. He may opt to give unsworn defence and shall not be cross-examined. He can also opt to keep quiet and leave the court decide the case with the evidence on the record. He is at liberty to call witnesses. DATED, SIGNED AND DELIVERED AT KITUI THIS 3RD DAY OF NOVEMBER 2025 HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19503/eng@2025-11-03 2
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