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Court of AppealAllowedCriminal Appeal No. 10 of 2013

Peter Loka Kisaka v Republic [2018] KECA 232 (KLR)

Court of Appeal of Kenya
11 October 2018
AVAlnashir VisramWKW. KaranjaMartha Karambu KoomeM. K. Koome
2,508 words in judgment
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The bottom line

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Kenya's Court of Appeal freed a man convicted of murder on circumstantial evidence, ruling that incomplete evidence and an inadmissible 'confession' cannot sustain a conviction.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Visram, Karanja & Koome, JJ.A) allowed a first appeal against conviction and sentence for the murder of Michael Osui at Chumvini Irrigation Farm, Taveta, on 27 June 2009. The High Court (Odero, J) had convicted the appellant on circumstantial evidence, principally the testimony of PW6, who said the appellant was found at the scene searching for his knife, admitted stabbing the deceased, and had blood on his hands and shirt; a 30-year imprisonment sentence was imposed. Re-appreciating the evidence as a first appellate court, the Court held that the alleged confession to PW6 was inadmissible because it was made to the wrong person under the wrong circumstances and did not amount to a confession under section 25A of the Evidence Act. It further found glaring gaps in PW6's testimony: the witness's account that the appellant was simultaneously standing over the body and searching for his knife was incoherent; the appellant was left alone at the scene yet did not flee; no sheath was mentioned by the first witnesses; and the blood-stained shirt was never produced in evidence. Applying the classic test from R v Kipkering Arap Koskei and Musoke v R, the Court held the circumstantial chain was not so complete as to exclude any other hypothesis of innocence, since another person could have stabbed the deceased and fled before PW6 arrived. The conviction and sentence were accordingly set aside and the appellant released unless otherwise lawfully held. No costs order is recorded.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the circumstantial evidence adduced by the prosecution was sufficient to sustain a conviction for murder
  2. 2.Whether the alleged confession to PW6 was admissible
  3. 3.Whether the sentence of 30 years imprisonment was excessive

Key legal issues

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01

Sufficiency of circumstantial evidence to sustain a murder conviction

Holding

The circumstantial evidence did not meet the required standard; the circumstances did not irresistibly point to the appellant's guilt and did not exclude the possibility of another person committing the offence.

Reasoning

The court re-evaluated the evidence as a first appellate court and found serious gaps: the appellant was said to be both standing over the body and searching for his knife elsewhere; PW6 left him alone at the scene to fetch a rope; the blood-stained shirt was not produced as an exhibit; and the alleged confession was inadmissible. The chain of circumstances was incomplete, so the conviction could not stand.

p. 3
02

Duty of a first appellate court

Holding

A first appellate court must re-analyse and re-appraise the entire evidence and draw its own independent conclusions, treating trial court findings with deference but not accepting them wholesale.

Reasoning

Relying on Okeno v Republic, the court affirmed that although the trial court saw and heard the witnesses, the appellate court's role is to interrogate the evidence critically. Where the conviction rests mainly on one witness's testimony, its credibility and veracity must be tested, particularly where the accused has given sworn testimony.

p. 2

Legal principles established

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  • For a conviction on circumstantial evidence, the circumstances must point irresistibly to the accused to the exclusion of any other person, with no co-existing circumstances weakening or destroying the inference of guilt.
  • A statement to a private person under circumstances not envisaged by the Evidence Act is not an admissible confession.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The conviction is quashed
  3. 3.The appellant is set at liberty unless otherwise lawfully held

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AV
majority
WK
majority
Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
On appeal from
High Court of Kenya at Mombasa
HC.CR.C. No. 26 of 2009
Jurisdiction invoked
First appellate jurisdiction under the Criminal Procedure Code over an appeal from a conviction and sentence of the High Court

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; the circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and lastly that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else.
p. 2Test for circumstantial evidence
the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis other than that of his guilt
p. 3Standard for inference of guilt on circumstantial evidence
our conclusion is that the circumstantial evidence before the court did not meet the required standard to sustain a conviction. In the circumstances, we find this appeal meritorious and allow the same, with the result that the appellant is set to liberty unless he is otherwise lawfully held.
p. 3Final orders allowing the appeal and setting the appellant at liberty

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Peter Loka Kisaka v Republic [2018] KECA 232 (KLR)", Case Analysis (2018). Criminal Appeal No. 10 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/232/eng@2018-10-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.