Republic v Bodo & another (Criminal Case 58 of 2023) [2026] KEHC 9460 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEHC 9460 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KIBERA CRIMINAL CASE 58 OF 2023 DR KAVEDZA, J JULY 2, 2026 BETWEEN REPUBLIC ........................................................................................... PROSECUTION AND ROBERT JOHN OUKO BODO ............................................................ 1ST ACCUSED CHRIS PHILIP OKEYO OBURE ......................................................... 2ND ACCUSED RULING 1. The accused persons are jointly charged with the ofience of murder contrary to Section 203 as read with Section 204 of the Penal Code to which they pleaded not guilty. The particulars of the ofience are that on 21st August 2020, at Galana Suites within Kilimani area in Nairobi County jointly murdered Kelvin Omwenga. 2. The prosecution called sixteen (16) witnesses supporting the case against the accused person before closing. The prosecution and the accused persons filed written submissions which have been duly considered and there is no need to rehash them. 3. Under Section 306 of the Criminal Procedure Code, Cap 75 Laws of Kenya, this court has a duty, upon close of the prosecution’s case, to make a ruling on whether the accused persons have a case to answer or not. It provides as follows: (1) When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is no evidence that the accused or any one of several accused committed the ofience, shall after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit recording a finding of not guilty. (2) When the evidence of the witnesses for the prosecution has been concluded the court if it considers that there is evidence that the accused person or any one or more of several accused https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9460/eng@2026-07-02 1
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persons committed the ofience, shall inform each such accused person of his right to address the court on his own behalf or make unsworn statement and to call witnesses in his defence. 4. A definition of what amounts to a prima facie case was given in the case of Bhatt vs R [1957] EA 332. In that case, the Court of Appeal expressed itself on this issue: “ 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 on full consideration might possibly be thought sufficient to sustain a conviction. This is perilously near to 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. 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 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.” 5. At this stage, the applicable threshold is lower than that of proof beyond reasonable doubt, which arises only at the close of the trial. A prima facie case is established where the evidence, if uncontroverted, would justify a conviction. 6. At this juncture, the Court is not required to give detailed reasons or make final determinations on credibility; that assessment properly follows the close of the defence case. 7. The question is whether the evidence, taken as is, discloses a case to answer. Applying the test in Bhatt v R (supra), I am satisfied that the prosecution has met the threshold necessary to place the accused persons on their defence. The medical and expert evidence, together with the witness accounts, establish a prima facie case.. 8. Accordingly, I find that a prima facie case has been established and place the accused persons on their defence pursuant to section 211 of the Criminal Procedure Code (Cap 75, Laws of Kenya). Orders accordingly. RULING DATED AND DELIVERED IN COURT THIS 2ND DAY OF JULY 2026 ............... D. KAVEDZA JUDGE In the presence of: Ms. Maina for the Prosecution Mr. Arum for the 1st Accused Mr. Onyango for the 2nd Accused Karimi Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9460/eng@2026-07-02 2
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