Republic v Wambua (Criminal Case 09 of 2019) [2026] KEHC 8121 (KLR) (10 June 2026) (Ruling) Neutral citation: [2026] KEHC 8121 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MAKUENI CRIMINAL CASE 09 OF 2019 JN ONYIEGO, J JUNE 10, 2026 BETWEEN REPUBLIC ............................................................................................ PROSECUTOR AND ESTHER NDUKU WAMBUA ..................................................................... ACCUSED RULING 1. The Accused Person herein is charged with the ofience of Murder Contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the ofience are that, on the night of 24th/25th of February 2019 at Ulilinzi market in Kibwezi Sub-County within Makueni County, she unlawfully murdered Patrick Kitolo mutisya. 2. Having denied the charge, the case proceeded to full trial with the prosecution adducing evidence from 7 witnesses in its endeavour to discharge the burden of proof beyond reasonable doubt. As such, at this stage, this court’s role is to consider the evidence on record and make a determination as to whether the same presents a prima facie case that would warrant this court to call upon the accused person to give her defence pursuant to Section 306 of the Criminal Procedure Code. 3. Under Section 211 of the Criminal Procedure Code, a prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is ofiered by an accused person. [See Ramanlal Trambaklal Bhatt v R [1957] E.A 332 at 334 and 335]. 4. Similar position was held in the case of Republic V Abdi Ibrahim Owl [2013] eKLR and Ronald Nyaga Kiura V Republic (2018) eKLR]. 5. However, it is trite that, where the court is not acquitting the accused person at the close of prosecution’s case, there is no need for a reasoned ruling for a case to answer. Reasons should only be https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8121/eng@2026-06-10 1
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given where the submission of a no case to answer by the accused is upheld and the accused is to be acquitted. [See Festo Wandera Mukando v Republic [1980] KLR 103]. 6. Therefore, at the close of the prosecution’s case, it is the duty of the trial court to examine and assess the evidence tendered by the prosecution so as to establish whether the elements of a prima facie case are in existence and if so, the accused will be invited to give his defence either on oath or unsworn or he may even elect to exercise his constitutional right of keeping silent. In the event he is called upon to state his defence as provided under Section 306 of the Criminal Procedure Code, besides adducing evidence by himself, /herself, he/she can also call witnesses to rebut the prosecution’s case. 7. Thus, a review of the prosecution’s direct evidence from pw1-pw3 and circumstantial evidence leading to the arrest of the accused Person and further confining myself to the live issues relevant to the making of the decision under Section 306 of the Criminal Procedure Code, I am satisfied that a prima facie case has been established to place the accused person on her defence. 8. She is consequently informed of her rights under Section 211 of Criminal Procedure Code. Therefore, she is at liberty to make sworn testimony in which case she will be subjected to cross examination by the prosecution or; make unsworn testimony in which she will not be subject to cross examination and lastly; she can opt to keep quiet. In either option, she shall be at liberty to call witnesses. DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 10TH DAY OF JUNE, 2026 ……………………… J. N. ONYIEGO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8121/eng@2026-06-10 2
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