Republic v Matoke [2025] KEHC 4573 (KLR)

Republic v Matoke (Criminal Case E014 of 2022) [2025] KEHC 4573 (KLR) (3 April 2025) (Ruling)

Neutral citation: [2025] KEHC 4573 (KLR)

Republic of Kenya

In the High Court at Nyamira

Criminal Case E014 of 2022

WA Okwany, J

April 3, 2025

Between

Republic

Prosecution

and

Duke Kerosi Matoke

Accused

Ruling

1. The Accused was charged with the offence of murder contrary to section 203 as read out with section 2004 of the Penal code. The particulars of the offence were that on the night of 17th and 18th June 2022 at Gekano Sub Location Manga Sub-County within Nyamira County, he murdered Judith Kadogo.

2. The Accused pleaded not guilty to the charge and the matter proceeded to full trial where the prosecution called a total of 4 witnesses in support of its case.

3. At the close of the prosecution’s case, this court is, under section 306 of Criminal Procedure Code (CPC), required to make a ruling on whether or not the accused person has a case to answer. Under the said section, if at the close of the prosecution’s case the court is of the opinion that there is no evidence that the accused or any one or more of several accused persons committed the offence, it shall record a finding of not guilty. However, if the court is of the opinion that there is is evidence that the accused person or any one or more of several accused persons committed the offence, the court is under Section 306(2) of the CPC required to proceed and place the accused on his/ their defence and in such a scenario, the accused is supposed to present evidence in defence.

4. 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 the court to call upon the accused to give his defence. In Nyaga Kiura vs Republic [2018] eKLR the court stated as follows in relation to what amounts to a prima facie case: -“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 vs 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.”

5. Courts have taken the position that there is no need for a reasoned ruling on a case to answer where an accused person is not being acquitted at the close of prosecutions’ case. Reasons should only be given where the submissions on a no case to answer by the accused are upheld and the accused is to be acquitted.

6. In Festo Wandera Mukando vs. Republic [1980] KLR 103 the court addressed the dangers of making definitive findings at the case to answer stage and rendered itself as follows: -“…we once more draw attention to the inadvisability of giving reasons for holding that an accused has a case to answer. It can prove embarrassing to the court and, in an extreme case, may require an appellate court to set aside an otherwise sound judgement. Where a submission of “no case” is rejected, the court should say no more than that it is. It is otherwise where the submission is upheld when reasons should be given; for then that is the end to the case or the count or counts concerned.”

7. I have considered the evidence tendered by the prosecution in support of its case and more particularly the testimony of PW1 and PW2. I find that the prosecution has made up a prima facie case against the accused person thus requiring him to be placed on his defence. I therefore find that the accused person has a case to answer.

8. The accused is, under Section 211 of the CPC, at liberty to elect to either give sworn testimony in which case he will be subjected to cross examination by the prosecution or an unsworn testimony whereby he will not be subjected to cross examination. Lastly, he can elect to remain silent and not give any evidence. In either option, he shall be at liberty to call witnesses if any.

9. It is so ordered.

RULING DATED, SIGNED AND DELIVERED AT NYAMIRA VIRTUALLY VIA MICROSOFT TEAMS THIS 3RD DAY OF APRIL 2025. W. A. OKWANYJUDGE