REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MAKUENI CRIMINAL CASE NO. E015 OF 2023 REPUBLIC………….……………………..……………………………… PROSECUTOR VERSUS ALPHONCE NYAMAI KISAVI……….……………….……………….......... ACCUSED RULING 1. The Accused Person herein is charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code. Particulars are that on the night of 3 rd day of September 2023 at 2000 hrs Kaiani Village, Kilimani Location, Mbooni East Sub-County within Makueni County, he murdered Dorcus Wavinya David. 2. Having denied the charge, the case proceeded to full trial with the prosecution adducing evidence from 9 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 his defence pursuant to Section 306 of the Criminal Procedure Code. H.C.CR.C E015/23 Republic vs Alphonce Nyamai Kisavi Page 1 of 3
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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 offered 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 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 H.C.CR.C E015/23 Republic vs Alphonce Nyamai Kisavi Page 2 of 3
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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 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 his defence. 8. He is consequently informed of his rights under Section 211 of Criminal Procedure Code. Therefore, he is at liberty to make sworn testimony in which case he will be subjected to crossexamination by the prosecution or; make unsworn testimony in which he will not be subject to cross-examination and lastly; he can opt to keep quiet. In either option, he shall be at liberty to call witnesses. Dated, signed and delivered in open court this 24th day of June, 2026 ….……………………. J. N. ONYIEGO JUDGE H.C.CR.C E015/23 Republic vs Alphonce Nyamai Kisavi Page 3 of 3
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