Chege v Republic (Criminal Appeal 136 of 2023) [2025] KECA 1548 (KLR)
The bottom line
#Kenya's Court of Appeal freed a man convicted of murder because judges changed mid-trial without following mandatory procedure and the evidence couldn't prove he caused the death.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Sections 200(3) and 201(2) of the Criminal Procedure Code were complied with on change of trial judges and the effect of any non-compliance
- 2.Whether the circumstantial evidence, including the 'last seen with' principle, satisfied the threshold for a conviction for murder
- 3.Whether the prosecution proved beyond reasonable doubt that the appellant caused the death of the deceased, including whether malice aforethought was established
Key legal issues
#Non-compliance with Sections 200(3) and 201(2) of the Criminal Procedure Code
Non-compliance was established and prejudiced the appellant, since six prosecution witnesses had testified before Kariuki, J. took over without hearing the parties, and all prosecution evidence had been recorded before Aroni, J. took over.
Two judges took over the trial suo moto and directed that it proceed from where it had reached without hearing the parties. The purpose of Section 200(3) is to allow the succeeding judge to assess the demeanour and credibility of witnesses personally. With six witnesses unheard by one judge and all prosecution evidence recorded before the next, the appellant's fair-trial rights under Article 50 were prejudiced.
Whether circumstantial evidence and the 'last seen with' principle sustained the conviction
The evidence failed the circumstantial-evidence threshold. The 'last seen' information was inadmissible hearsay from Mwenda, who never testified; the statement was exculpatory; there was no corroboration of motive; and wild animals were not ruled out as a cause of death.
The inculpatory facts relied on - that the appellant was last seen with the deceased and their disagreement - were neither credible nor incompatible with innocence. PW1's information came from Mwenda, who did not testify and whose own conduct was questionable. PW4's evidence of the disagreement was based on unnamed workers who were not called. The prosecution's own witnesses left open the possibility of an animal attack.
Whether a retrial should be ordered despite the procedural defect
No retrial was ordered because the evidence on record would not, even on a properly conducted trial, meet the criminal standard of proof; a retrial would give the prosecution a second bite at the cherry.
Although non-compliance with Section 200(3) would ordinarily open the option of a de novo trial, the Court re-evaluated the evidence and concluded the prosecution failed to prove the appellant caused the death. Ordering a retrial would allow the prosecution to fill gaps that existed during the trial, which the law does not permit.
Whether the prosecution proved the cause of death and malice aforethought
The prosecution failed to prove that the death of the deceased was caused by the appellant; the pathologist's evidence was that the cause of death was unknown.
The forensic report confirmed the remains were those of an adult human being but the cause of death was unknown. Prosecution witnesses conceded the area was inhabited by wild animals and one investigator saw hyena faeces at the scene. Without proof of cause of death or a specific unlawful act by the appellant, the elements of murder were not established beyond reasonable doubt.
Legal principles established
#- Compliance with Section 200(3) of the Criminal Procedure Code, including informing an accused of the right to have witnesses resummoned and reheard when a trial judge changes, is mandatory because it protects the Article 50 right to a fair trial.
- The 'last seen with' doctrine cannot by itself found a conviction; the evidence relied on must be credible and admissible, and there must be corroboration establishing connectivity between the accused and the crime.
- A retrial should not be ordered where the evidence on record, even if the trial had been properly conducted, would still fail to meet the standard of proof in criminal cases.
- An appellate court is not bound by the concession of State Counsel as to the merits of an appeal.
Court orders
#- 1.Set aside the conviction of the appellant in Garissa High Court Criminal Case No. 15 of 2014
- 2.Quashed the sentence of 25 years imprisonment imposed upon the appellant
- 3.Directed that the appellant be set at liberty forthwith unless otherwise lawfully held
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Garissa
- Garissa High Court Criminal Case No. 15 of 2014
- Jurisdiction invoked
- First appellate jurisdiction over a High Court criminal appeal (Sections 200(3) and 201(2) of the Criminal Procedure Code engaged; duty as a first appellate court under Okeno v Republic)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
we find merit in the appeal, set aside the conviction of the appellant in Garissa High Court Criminal Case No. 15 of 2014 and quash the sentence imposed upon him. We direct that the appellant be set at liberty forthwith unless otherwise lawfully held. Those shall be our orders.
the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused
The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused.
Circumstantial evidence must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another.
our function is not to merely scrutinize the evidence to see if there was some evidence to support the trial court’s finding and conclusion.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chege v Republic (Criminal Appeal 136 of 2023) [2025] KECA 1548 (KLR)", Case Analysis (2025). Criminal Appeal (Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1548/eng@2025-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.