Republic v Otieno (Criminal Case E047 of 2021) [2026] KEHC 7914 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 7914 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT HOMA BAY CRIMINAL CASE E047 OF 2021 OA SEWE, J MAY 14, 2026 BETWEEN REPUBLIC ............................................................................................ PROSECUTOR AND CHARLES AKETCH OTIENO ................................................................... ACCUSED RULING 1. On the 17th November 2021, Charles Aketch Otieno, the accused person herein, was arraigned before the Court on the Information by the Director of Public Prosecution that he had committed that ofience of murder, thereby contravening the provisions of Section 203 as read with Section 204 of the Penal Code, Chapter 63 of the Laws of Kenya. It was alleged that on the night of 4th May 2021 at Adongo Village in Homa Bay Sub-County within the County of Homa Bay, he murdered Victor Omondi Aguko. The accused denied that Charge and the Prosecution called evidence from a total of 7 witnesses in proof of the allegations. 2. Under Section 306(1) of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya, it is imperative that, at the close of the Prosecution Case, a determination be made as to whether a prima facie case has been made out against the accused person to warrant his being placed on his defence. The rationale for this was aptly expressed in Ramanlal Trambaklal Bhatt v Republic [1957] EA 332 thus: “ 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7914/eng@2026-05-14 1
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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 ofiered by the defence.” 3. Accordingly, I have given careful consideration to the evidence on record with a view of ascertaining whether it is the sort of evidence upon which the Court would be prepared to convict if no explanation is ofiered by the accused person. There is credible evidence that the deceased herein, Victor Omondi Aguko, died on the 8th May 2021. He was beaten by a mob of people on the allegations that he had stolen some goats. The Prosecution adduced credible evidence through PW1, PW2, PW3, PW5 and PW6 to show that the accused, jointly with others not before the Court, confronted the deceased and accused him of having stolen goats. These eye witnesses saw the accused take part in the acts that contributed to the injuries from which the deceased succumbed. He was not only beaten but burnt and the accused was mentioned as the person who fetched the petrol that was used by his brother John Kongo to burn the deceased. 4. The prosecution also called Dr. Kerubo (PW7) who testified that she conducted postmortem examination on the body of the deceased and that from her findings she came to the conclusion that the cause of death was perforation of the gut caused by a blunt abdominal injury. She also stated that the body had burns estimated at 27%. There is therefore no dispute as to the death of the deceased or the cause of his death. 5. In the circumstances, there is prima facie proof that the injuries that led to the death of the deceased were infiicted by the accused, among others. He is accordingly hereby placed on his defence to answer the Charge of Murder pursuant to Section 306(2) of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 14TH DAY OF MAY, 2026 ............................. OLGA SEWE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7914/eng@2026-05-14 2
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