Republic v Abuga (Criminal Case E017 of 2023) [2026] KEHC 6651 (KLR) (16 April 2026) (Ruling) Neutral citation: [2026] KEHC 6651 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NYAMIRA CRIMINAL CASE E017 OF 2023 TW CHERERE, J APRIL 16, 2026 BETWEEN REPUBLIC ............................................................................................ PROSECUTOR AND GETRUDE NYANG’ARA ABUGA ............................................................. ACCUSED RULING 1. The accused person, Getrude Nyang’ara Abuga, is charged with the ofience of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the charge are that on 21st August 2023 at Nyabara Ibere Area in Nyabisimba Sub-location within Nyamira South Sub-County, she murdered Nicodemus Mokua Nyabichanga. 2. The prosecution called five witnesses in support of its case and thereafter closed its case. The court has considered the entire prosecution evidence on record as well as the written submissions filed on behalf of the accused by learned counsel Mr. Gichaba Advocate dated 18th March 2026, in which it is contended that no prima facie case has been established and that the accused ought to be acquitted under section 306(1) of the Criminal Procedure Code. 3. The duty of the court at this stage is to determine whether the evidence on record discloses a prima facie case to warrant placing the accused on her defence. In Ramanlal Trambaklal Bhatt v R [1957] EA 332, it was held that a prima facie case is not made out where the evidence merely raises suspicion or where, on the evidence adduced, a reasonable tribunal properly directing itself would not convict if the accused elected to remain silent. 4. There is no dispute that the deceased died and that the death was unlawful. PW4, Dr. Ong’uti Hudson, testified that the cause of death was strangulation. This evidence was consistent with the observations of PW1, Renson Mong’are Nyambane, who found the body with injuries and a wire around the neck, and PW3, James Nyabichanga Omosa, the father of the deceased, who observed marks around the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6651/eng@2026-04-16 1
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neck. The court is therefore satisfied that the prosecution established the death of the deceased and that it was caused by an unlawful act. 5. The critical issue is whether the accused was linked to that unlawful act. The evidence of PW1, Renson Mong’are Nyambane, was that he found the deceased lying outside a house with injuries but did not see the accused at the scene and did not know who killed the deceased. PW2, Nseka Sawe Benjamin, similarly found the deceased dead but did not see the accused and could not tell who was responsible. PW3, James Nyabichanga Omosa, only identified the body and had no knowledge of the events leading to the death. None of these witnesses placed the accused at the scene or connected her to the act that caused the death. 6. The only attempt to link the accused to the ofience came from PW5, Police Constable Peter Juma, the investigating officer, who testified that the accused was allegedly the last person seen with the deceased and that there had been a quarrel. However, that evidence was purely hearsay. The persons said to have been with the accused and the deceased, namely Dominic, and the person who allegedly reported the quarrel, namely Doreen, were not called as witnesses. Their evidence was therefore not subjected to cross-examination and carries no probative value. In the absence of their testimony, there is no admissible evidence placing the accused with the deceased at the material time or explaining what transpired thereafter. 7. In Republic v Bernard Isoe Ndege [2023] eKLR, it was held that there must be evidence on each essential ingredient of the ofience, including evidence linking the accused to the unlawful act. In the present case, that essential link is lacking. 8. The prosecution case being entirely circumstantial, it must meet the threshold that the inculpatory facts form a complete chain pointing irresistibly to the guilt of the accused. In Sawe v Republic [2003] KECA 182 (KLR), it was held that suspicion, however strong, cannot form the basis of a conviction. The gaps in the prosecution case, including the failure to call crucial witnesses and the absence of evidence as to what transpired after the deceased was last seen, leave open other reasonable possibilities and render the chain of evidence incomplete. 9. The burden of proof remains with the prosecution throughout and does not shift to the accused. In Republic v Abdi Ibrahim Owl [2013] eKLR, the court emphasized that an accused person should not be called upon to fill gaps in the prosecution case. To place the accused on her defence in the absence of evidence linking her to the ofience would amount to shifting that burden. 10. Although the prosecution established the fact and cause of death, it failed to prove the actus reus as against the accused person, that is, that it was the accused who committed the unlawful act that caused the death of the deceased. The evidence on record does not demonstrate any nexus between the accused and the fatal act. 11. In those circumstances, it would be an exercise in futility to place the accused on her defence, for even if she were to elect to remain silent, the evidence on record is insufficient to sustain a conviction. 12. In the result, this court makes the following orders: 1. The prosecution has failed to establish a prima facie case against the accused person. 2. The accused is hereby found to have no case to answer and is acquitted under section 306(1) of the Criminal Procedure Code. 3. The accused person, Getrude Nyang’ara Abuga, shall be set at liberty forthwith unless otherwise lawfully held. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6651/eng@2026-04-16 2
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DELIVERED AT NYAMIRA THIS 16TH DAY OF APRIL 2026 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Anita Accused - Present For Accused - Mr. Muriranja For the DPP - Mr. Chirchir (SADPP) https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6651/eng@2026-04-16 3
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