Republic v Ndavi alias Koki (Criminal Case E032 of 2018) [2025] KEHC 19563 (KLR) (25 November 2025) (Ruling) Neutral citation: [2025] KEHC 19563 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KITUI CRIMINAL CASE E032 OF 2018 LW GITARI, J NOVEMBER 25, 2025 BETWEEN REPUBLIC ........................................................................................... PROSECUTION AND SYOMBUA NDAVI ALIAS KOKI ............................................................... ACCUSED RULING 1. The accused Syombua Ndavi alias Koki is charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. 2. The particulars are that on 3/7/2018 at Nyaanya Market in Endui Location, Mwingi Central SubCounty within Kitui County, murdered Maria Kathini Mutisya. The accused denied the charge. The prosecution proceeded to call witnesses in support of their case. A total of eleven witnesses testified and the prosecution closed its case. 3. The defence did not address the court at the close of prosecutor’s case. This is a ruling as to whether the accused has a case to answer. The court is guided by the provision of Section 306 of the Criminal Procedure Code which provides as follows: “ (1) When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence shall, after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit, record a finding of not guilty. (2) When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each such accused person of his right to address the court, either personally https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19563/eng@2025-11-25 1
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or by his advocate (if any), to give evidence on his own behalf, or to make an 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) 4. 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.” This ruling falls under Section 306(1) & (2) as the court is supposed to determine whether the accused has a case to answer. What constitutes a prima facie case was considered in the case of Ramanlal T. Bhatt -vs- Republic which is a leading authority on the subject. The court held as follows: “ A prima facie case is one where a reasonable tribunal which properly addressing its mind to the facts and the law would convict if no reasonable explanation has been offered by the accused.” 5. At this stage the trial court does not concern itself to the standard of proof required to convict which is normally beyond any reasonable doubts. The court is supposed to considered the weight of the evidence to determine the question whether it is sufficient for the trial court to place the accused person on his defece. The determination which the court has to make is whether there is a prima facie case established to return a verdict of guilty even if the accused does not offer any explanation. That is to say he does not offer a defence. 6. At this stage, the court is not supposed to give reasons as that may prejudice the accused who has not given his defence and by extension has not been given an opportunity to be heard as demanded by rules of natural justice which requires that where a decision is likely to adversely affect person, he must be given an opportunity to be heard. The court should therefore avoid giving opinions on the evidence that is likely to prejudice the intended defence case. All what is necessary is to review the evidence ‘viz a vis’ the charge facing the accused and determine whether he should be called upon to give his defence or not. 7. I have considered the evidence tendered by the prosecution. I come to the conclusion that it is sufficient to warrant this court to call on the accused to give her defence on the charge murder contrary to Section 203 as read with Section 204 of the Penal Code in compliance with Section 306(2) as read with Section 307 of the Criminal Procedure Code. DATED, SIGNED AND DELIVERED AT KITUI THIS 25TH DAY OF NOVEMBER, 2025. HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19563/eng@2025-11-25 2
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