Republic v Ongondi alias Babu (Criminal Case E017 of 2021) [2026] KEHC 6723 (KLR) (16 April 2026) (Ruling) Neutral citation: [2026] KEHC 6723 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NYAMIRA CRIMINAL CASE E017 OF 2021 TW CHERERE, J APRIL 16, 2026 BETWEEN REPUBLIC ............................................................................................ PROSECUTOR AND DAVIS MAYANI ONGONDI ALIAS BABU .............................................. ACCUSED RULING 1. The accused person is charged with the ofience of murder contrary to section 203 as read with section 204 of the Penal Code, the particulars being that on 24th May 2021 at Bogwendo Sub-location, Manga Sub-County within Nyamira County, he murdered Alex Mokaya alias Musa. 2. The prosecution called three witnesses before closing its case on 14th April 2026. The court is now required to determine whether a prima facie case has been established to warrant placing the accused on his defence. 3. The applicable legal principles are settled. Under section 306(1) of the Criminal Procedure Code, the court must acquit an accused person if, at the close of the prosecution case, there is no evidence that he committed the ofience. The test of what constitutes a prima facie case was articulated in Bhatt v Republic [1957] EA 332, namely, that the evidence must be such that a reasonable tribunal, properly directing itself, could convict if the accused elected to remain silent. It is equally trite, as held by the Court of Appeal in Sawe v Republic [2003] KECA 182 (KLR), that suspicion, however strong, cannot form the basis of a conviction. 4. The court has carefully considered the entirety of the prosecution evidence. PW1, James O. Akama, testified that on the material day he met the accused who informed him that he had quarrelled with the deceased over a pen. Later, PW1 encountered the deceased who had visible marks on the neck and who told him that the accused had injured him. PW1 proceeded to the tea buying centre, and thereafter received information from another person that the deceased had been stabbed at the school field. He https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6723/eng@2026-04-16 1
page 1 of 3
went to the scene and found the deceased bleeding from a stab wound. In cross-examination, PW1 was clear that he did not witness the stabbing and that his knowledge of the fatal incident was based on what he had been told by others. 5. PW2, Julius Ogeto Nyachuba, testified that he attended the post-mortem examination and observed a stab wound on the chest of the deceased which had almost reached the heart. His evidence was limited to identification of the body and observation of the injury. No medical officer testified and no postmortem report was produced. 6. PW3, Kennedy Kaka Keuko, a teacher at Ogwendo PAG Primary School, testified that on the material day he witnessed a quarrel between the accused and the deceased during a lesson over a pen. He intervened and resolved the dispute, after which learning continued. During the lunch break, he received a report from a pupil that the accused had stabbed the deceased. He rushed to the scene and found the deceased lying dead. The accused was not present at the scene. On cross-examination, PW3 confirmed that he did not witness the stabbing and that his knowledge of the fatal act was based on what he had been told. 7. When the above evidence is evaluated against the legal threshold set in Bhatt v Republic, (supra) it becomes evident that the prosecution has failed to establish a prima facie case. While there is evidence suggesting that the deceased died from a stab wound, there is no admissible evidence demonstrating that it is the accused who inflicted that injury. The evidence of PW1 and PW3, to the extent that it implicates the accused in the stabbing, is hearsay and therefore of no probative value in establishing the actus reus. What remains is evidence of a prior quarrel and the subsequent death of the deceased. 8. The existence of a quarrel between the accused and the deceased, though relevant, does not in itself prove that the accused committed the unlawful act that caused death. The prosecution did not call any eyewitness to the stabbing, nor did it present any circumstantial evidence forming a complete and unbroken chain pointing irresistibly to the accused as the perpetrator. There was no evidence placing the accused at the scene at the time of the fatal act, no recovery and production of the alleged weapon, and no testimony from the investigating officer to connect the evidentiary chain. 9. In those circumstances, the case against the accused rests on suspicion arising from the earlier disagreement and the report that he had fled. However, as the Court of Appeal stated in Sawe v Republic (supra), suspicion, however strong, cannot form the basis of a conviction. The court must guard against filling gaps in the prosecution case by inference or speculation. 10. From the foregoing, this court is not satisfied that the evidence on record, even if left unchallenged, is such that a reasonable tribunal could convict. The prosecution has failed to establish the actus reus, namely, that the accused committed the unlawful act that caused the death of the deceased. To place the accused on his defence in those circumstances would be an exercise in futility, for even if he were to elect to remain silent, the evidence on record would not sustain a conviction. 11. Accordingly, I find that the prosecution has failed to establish a prima facie case against the accused person. The accused has no case to answer. 12. The accused, Davis Mayani Ongondi alias Babu, is hereby acquitted under section 306(1) of the Criminal Procedure Code and shall be set at liberty forthwith unless otherwise lawfully held. DELIVERED AT NYAMIRA THIS 16TH DAY OF APRIL 2026 WAMAE.T. W. CHERERE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6723/eng@2026-04-16 2
page 2 of 3
Appearances Court Assistant - Anita Accused - Present For Accused persons - Mr. Onwonga Advocate For the DPP - Mr. Mwangi https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6723/eng@2026-04-16 3
page 3 of 3