Republic v Enyongo

The Prosecution Case 3. The prosecution called two witnesses namely: 1) NO. 239274 CI WANYOIKE PAUL MAINA (PW1) 2) NO. 254420 PC BENARD ODHIAMBO (PW2) 4. The prosecution case was that PW1 a ballistic expert examined a magazine marked PMFI-2 which he said belongs to an AK 47 rifle which had ammunition marked PMFI-3 (B1-B7). They tested 3 rounds by firing which are marked as PMFI-4 (TC1-3). He did not test 4 ammunition marked PMFI5(a-d). He prepared report and found that PMF1-2 is an AK47 magazine capable of carrying 30 rounds of ammunition. The same was in good condition and working. The rounds of ammunition were also working and in good condition. He confirmed the same to be rounds of ammunition. He then produced report dated 10/4/2026 as exhibit-6. 5. PW2 evidence was that on 16/3/2026 at 10:00am while in the office he was approached by the Deputy DCI Kuria West IP WAGUCHA who informed him that there was a case of robbery with violence incident at Maeta area. They went to Wagucha’s office where they found a man by the name alias PASTOR. He did not bother about the man’s name as WAGUCHA knew him. 6. The said man said that he had been attacked by four people armed and robbed off his money Kshs. 320,000/=, though he was not armed by the attackers but he managed to remove the magazine from them. He told them that he had spotted one of the attackers within Kehancha chini at a mining site. The said man took them to the mining site where he identified a short man wearing a red T-Shirt who they arrested and escorted him to Kehancha Police Station where he was booked into the cells. KEHANCHA SPMC CR NO. E145 OF 2026 (RULING) 2

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7. IP WAGUCHA informed the DCI officer Kuria East who came and took the said suspect who is the accused herein. The prosecution then closed its case. Determination 8. The burden of proof lies on the prosecution throughout the trial. That burden of proof does not shift to the accused person to prove his innocence. That is the only way fair trial of the accused person can be guaranteed as stipulated in Article 50 (2) of the Constitution. 9. It follows that an accused person is under no duty to give any evidence in defence to rebut the prosecution’s case. An accused person has the right to remain silent and the court would decide the case on the basis of the evidence adduced, without making any adverse inference against him. 10.However, an accused person’s right to adduce evidence and challenge the evidence adduced against him is guaranteed under Article 50 (2) (k) of the Constitution, albeit he also enjoys the right not to give any selfincriminating evidence. See Article 50 (2) (l) of the Constitution. 11.Having said so, the standard of proof required in criminal cases is that of beyond reasonable doubt. Nonetheless, that standard is not applicable at this stage where the prosecution is only expected to have established a prima facie case against the accused person to warrant him to be placed on his defence. 12.A prima facie case is established where the evidence tendered by the Prosecution is sufficient on its own for a court of law to return a guilty verdict even if the accused opts to remain silent. 13. In Republic v Abdi Ibrahim Owi [2013] eKLR, the court defined a prima facie case as follows: “‘prima facie’ is a latin word defined by Black’s Law Dictionary 8th Edition as, “sufficient to establish a fact or raise KEHANCHA SPMC CR NO. E145 OF 2026 (RULING) 3

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presumption unless disapproved or rebutted”. ‘prima facie’ is defined by the same dictionary as “the establishment of a legally required rebuttable presumption.” 14.In simple terms, prima facie means the establishment of a rebuttable presumption that an accused person is guilty of the offence he/she is charged with. 15.The question that this court has to deal with and answer at this stage is therefore, whether based on the evidence before this Court, the court after properly directing its mind to the law and the evidence may convict if the accused chose to give no evidence. It was held in Ronald Nyaga Kiura v . Republic [2018] eKLR that; “It is important to note that at the close of prosecution, what is required in law at this stage is for the trial court to satisfy itself that a prima facie has been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of 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. This is well illustrated in the cited Court of Appeal case of Ramanlal Bhat -v - Republic [1957] EA 332. At that stage of the proceedings the trial court does not concern itself to the standard of proof required to convict which is normally beyond reasonable doubt. The weight of the evidence however must be such that it is sufficient for the trial court to place the accused to his defence.” 16.From the above detailed holding by the court, can this court on the basis of the evidence so far tendered by the Prosecution, and this court properly KEHANCHA SPMC CR NO. E145 OF 2026 (RULING) 4

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directing itself to the law and evidence convict if the accused chooses not to give any evidence? The court is however cautioned that at this stage, it should not make definitive findings should it conclude that the accused has a case to answer. 17.In our instant case the complainant PETER CHACHA MAGIGE aka PASTOR did not testify to support the said charge. This means that there is no evidence on record showing that the accused robbed PETER CHACHA MAGIGE AKA PASTOR Kshs. 320,000/=. This means that the prosecution has not been able to establish a prima facie case against the accused in respect of count one to warrant him to be placed on his defence. I thus find the accused not guilty as charged with the offence of robbery with violence contrary to section 295 as read with section 296 (2) of the Penal Code and acquit him under section 210 of the Criminal Procedure Code. 18.In respect of count two there is evidence on record showing that the accused was found in possession of 7 rounds of ammunition calibre 7.62x39 millimeter special. The said ammunitions were not produced as exhibits. The person who recovered the same from the accused did not testify. I find that the prosecution has not been able to establish a prima facie case against the accused in count two to warrant accused to be placed on his defence. In conclusion I find the accused not guilty as charged with the offence of being in possession of ammunition without a firearm certificate contrary to section 4A (1) (a) of the Firearms Amendment Act No. 6 of 2010 and, I acquit him under section 210 of the Criminal Procedure Code. Dated, Signed and Delivered in open Court at Kehancha on this 14 th day of September, 2026. KEHANCHA SPMC CR NO. E145 OF 2026 (RULING) 5

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J.P. NANDI SENIOR PRINCIPAL MAGISTRATE In the presence of: Mr. Kuntai………… Prosecution Counsel Mr. Mang’era/Martha.………… Court Assistant Accused …………….. Present Interpretation ……… English/Kiswahili Accused Language … Kiswahili KEHANCHA SPMC CR NO. E145 OF 2026 (RULING) 6

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