Endachi v Republic (Criminal Appeal E027 of 2021) [2025] KECA 2006 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a murder conviction based on circumstantial evidence but replaced the death sentence with 30 years' imprisonment.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the prosecution proved the information of murder against the appellant
- 2.Whether the trial court failed to adequately consider and evaluate the appellant's defence
- 3.Whether the circumstantial evidence relied upon met the legal threshold
- 4.Whether the trial court shifted the burden of proof to the appellant
- 5.Whether the trial court relied on contradictory or unreliable prosecution evidence
- 6.Whether the death sentence imposed on the appellant was unconstitutional
Key legal issues
#Proof of murder by circumstantial evidence and the 'last seen with' doctrine
The doctrine was properly invoked; the appellant, last seen with the deceased, offered no explanation, and the circumstantial chain was complete and unbroken.
The appellant was last seen riding with the deceased towards river Lwakhakha; the body was later found floating in that river tied to a tree. The appellant escaped custody and was arrested in possession of PW1's bicycle. Relying on Nigerian, Indian and Kenyan authorities, the Court held that Section 111(1) of the Evidence Act places a duty on the accused to explain, and failing that the inference of culpability is justified.
Alibi defence consideration
The trial court considered the alibi but found it implausible and unsupported.
PW1 and PW3 placed the appellant at the scene; he was found with the deceased's father's bicycle shortly after the body was discovered, contradicting his claim of not knowing them. The trial court was bound to weigh the defence against the prosecution case, and did so.
Whether the burden of proof was shifted to the appellant
No; Section 111 of the Evidence Act legitimately requires the accused to explain facts especially within his knowledge.
Following Dorcas Jebet Keter, the burden on the accused last seen with the deceased does not amount to proof beyond reasonable doubt; the invocation of Sections 111 and 119 of the Evidence Act was a legal prerequisite, not a reversal of the prosecution burden.
Constitutionality of the mandatory death sentence
The trial court did not err in imposing death under the law as it stood in November 2017, but this Court, bound by Muruatetu, set the sentence aside and substituted 30 years' imprisonment with credit under Section 333(2) of the Criminal Procedure Code.
The sentencing occurred on 2nd November 2017, before the Supreme Court's Muruatetu decision of 14th December 2017, so the mandatory sentence was lawful then. However, being bound by that jurisprudence now, the Court reconsidered mitigation afresh, noting the appellant's youth, first-offender status and remorse, and substituted thirty years from the date of arraignment.
Legal principles established
#- A first appellate court must re-evaluate, re-analyse and reconsider the evidence afresh and draw its own conclusions, making allowance for not having seen or heard the witnesses.
- Where an accused is last seen with the deceased, he bears a duty to explain how the deceased met death; absent explanation, the court may infer he killed the deceased.
- Circumstantial evidence must satisfy the Abanga tests: circumstances firmly established, pointing unerringly to the accused, forming a complete chain excluding any other hypothesis but guilt.
- Invoking Section 111 of the Evidence Act to require an accused to explain facts especially within his knowledge is a legal prerequisite, not an improper shifting of the burden of proof.
- Minor inconsistencies in prosecution evidence that do not go to the root of the case may be ignored.
- Sentences imposed before Muruatetu under the then-mandatory Section 204 must, on appeal, be re-evaluated in light of that now-binding jurisprudence, with mitigation considered afresh.
Court orders
#- 1.Conviction of the appellant for murder upheld
- 2.Sentence of death set aside
- 3.Sentence substituted with a term of imprisonment of thirty (30) years running from the date of arraignment on 7th June 2010 pursuant to Section 333(2) of the Criminal Procedure Code
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Bungoma
- Jurisdiction invoked
- First appeal under the Court of Appeal's appellate jurisdiction over convictions and sentences of the High Court exercising original criminal jurisdiction
Relief refused
#Quashing of the conviction
The circumstantial evidence, including the 'last seen with' doctrine, formed a complete and unbroken chain proving guilt beyond reasonable doubt
Outright finding that the trial court erred in imposing the death sentence
At the time of sentencing on 2nd November 2017, Section 204 of the Penal Code prescribed death as the only available sentence; the Muruatetu decision came later, on 14th December 2017
Costs
No costs order made in the judgment
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.
In conclusion, whereas we uphold the conviction of the appellant for the ofience; we nonetheless set aside the sentence of death imposed and substitute therefor with a term of imprisonment of thirty (30) years from the date of his arrangement in court on 7th June 2010 in line with the provisions of Section 333(2) of the Criminal Procedure Code.
This Court, sitting as the first appellate court, has the bounded duty to re-evaluate, re-analyze, and reconsider the evidence adduced before the trial court and draw its own conclusions
Circumstantial evidence must satisfy three tests: the circumstances must be firmly established, must point unerringly to the accused, and must form a complete chain excluding any other hypothesis but guilt.
Circumstantial evidence is as good as any other evidence if it is properly evaluated and can prove a case with the accuracy of mathematics.
The mandatory nature of the death sentence under section 204 of the Penal Code is unconstitutional. Courts must consider mitigating circumstances before passing sentence.
This therefore does not amount to the trial court shifting the burden of proof from the prosecution to the appellant. It is a legal prerequisite.
Issues in the judgment
#The appeal number of the present case is not stated anywhere in the judgment, though the title opens with the number '1.'
The judgment contains no costs order despite disposing of the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Endachi v Republic (Criminal Appeal E027 of 2021) [2025] KECA 2006 (KLR)", Case Analysis (2025). Criminal Appeal (not specified on record). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2006/eng@2025-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.