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Court of AppealDismissedCriminal Appeal Nos. E084 of 2023 and E025 of 2024 (Consolidated)

Nguwa alias Kandili & another v Republic (Criminal Appeal E084 of 2023 & E025 of 2024 (Consolidated)) [2025] KECA 2107 (KLR)

Court of Appeal of Kenya
5 December 2025
6,358 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal upheld two murder convictions based on circumstantial evidence alone, confirming DNA evidence is not required when other proof is strong.

What this practically means

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Executive summary

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This is a consolidated first appeal before the Court of Appeal at Mombasa (Murgor, Laibuta and Ngenye-Macharia, JJAA) by Peter Baya Nguwa and Safari Karisa Ngalia against their conviction for murder and 20-year sentences imposed by the High Court at Malindi (R. Nyakundi, J.) on 4th September 2019 proceedings in HCCR Case No. 10 of 2019, delivered 4th September 2023, for the murder of Kahindi Tsumu Iha on 31st March 2019 in Kilifi County. There was no eyewitness to the fatal attack; the prosecution case was circumstantial, resting on eleven witnesses who placed the appellants with the deceased at a Mnazi club and later at his home, on the discovery of the 2nd appellant's cap and a piece of wood at the scene, on identification parade evidence, and on post-mortem evidence of compound skull fracture and internal haemorrhage. The appellants contended that contradictions in the prosecution evidence, the absence of forensic or DNA evidence linking them to the weapon, and failure to prove malice aforethought rendered the conviction unsafe. The Court restated the duty of a first appellate court as a rehearing, applying Okeno and Ogaro, and reaffirmed the Sawe and Abanga thresholds for circumstantial evidence, including the 'last seen with' doctrine as expounded in Chiragu and Marita. It found the chain of circumstantial evidence complete and unbroken, held that absence of DNA evidence did not weaken the case following David Kahura Wangari, and found malice aforethought established from the targeted head injuries under section 206 of the Penal Code. Both grounds failed, and the Court dismissed the consolidated appeals, upholding the High Court judgment, conviction and 20-year sentences. No costs order was made.

Questions the Court framed

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

  1. 1.Whether there was sufficient evidence to convict the appellants for the offence charged
  2. 2.Whether, before convicting the appellants, the learned Judge considered their defences

Key legal issues

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01

Whether the circumstantial evidence sufficed to convict the appellants of murder

Holding

Yes. The cumulative circumstantial evidence - the appellants being last seen with the deceased between 3:00pm and 7:00pm, the recovery of the 2nd appellant's cap and the wooden weapon at the scene, and the unbroken chain of circumstances - met the threshold for proof beyond reasonable doubt and excluded any other reasonable hypothesis.

Reasoning

The Court applied the Sawe and Abanga tests for circumstantial evidence, holding the inculpatory facts incompatible with innocence. PW5 and PW6 were the last to see the deceased alive in the 2nd appellant's company shortly before the fatal screams. The 2nd appellant's cap and the piece of wood recovered at the scene completed the chain. The 1st appellant's claim of leaving at 4:00pm was contradicted by PW1, PW2 and PW8, and the defences were dislodged by the overwhelming prosecution evidence.

p. 11
02

Whether malice aforethought was proved

Holding

Yes. The medical evidence showed repeated strikes to the head causing compound skull fracture and internal haemorrhage, demonstrating an intention to cause death or grievous harm under section 206(a) of the Penal Code.

Reasoning

Guided by section 206 of the Penal Code and the decision in Bonaya Tutu Ipu & another v Republic citing Chesakit v Uganda, the Court took into account the part of the body targeted, the type of weapon used, the severity of the injuries inflicted and the conduct of the perpetrators. The targeting of the vulnerable head with deliberate and brutal force established mens rea.

p. 12
03

Whether failure to conduct DNA or forensic examination undermined the conviction

Holding

No. Reliance on forensic evidence is the choice of investigating officers and its absence does not affect the credibility of otherwise credible evidence linking the accused to the offence.

Reasoning

Counsel argued that the absence of forensic or DNA evidence linking the murder weapon to the appellants rendered the conviction unsafe. The Court, following its own decision in David Kahura Wangari v Republic, rejected the argument, holding that the compelling circumstantial evidence - last seen with the deceased and recovery of the cap at the scene - spoke for itself and remained unshaken.

p. 11
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The duty of a first appellate court

Holding

A first appeal is by way of a rehearing: the appellate court must subject the evidence to a fresh and exhaustive examination, make its own findings and draw its own conclusions, while allowing for the trial court's advantage of seeing and hearing the witnesses.

Reasoning

The Court restated the duty from Okeno v Republic and Ogaro v Republic, endorsed in the comparative decision of the Supreme Court of India in Ganpat v State of Haryana, that an appellate court is not confined to scrutinising whether some evidence supports the lower court's finding but must itself weigh conflicting evidence and reach its own decision on the whole evidence.

p. 4

Legal principles established

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  • On a first appeal, the Court of Appeal must re-evaluate, re-analyse and reconsider the evidence afresh and draw its own conclusions, while making allowance for the fact that it did not see the witnesses testify
  • A conviction on circumstantial evidence requires inculpatory facts incompatible with the accused's innocence and incapable of explanation on any other reasonable hypothesis, with the burden remaining on the prosecution throughout
  • The absence of DNA or forensic evidence does not of itself undermine a prosecution case otherwise proved on credible evidence; recourse to DNA testing is a matter for the investigating officers

Court orders

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  1. 1.The consolidated appeals are dismissed
  2. 2.The judgment of the High Court of Kenya at Malindi (R. Nyakundi, J.) delivered on 4th September 2023 in HCCR Case No. 10 of 2019 is upheld

The bench

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

majority
majority
On appeal from
High Court of Kenya at Malindi
Malindi HC Criminal Case No. 10 of 2019
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Rules, rule 31(1)(a), over appeals from the High Court exercising original criminal jurisdiction
Consolidated with
Criminal Appeal No. E084 of 2023, Criminal Appeal No. E025 of 2024

Relief refused

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Setting aside of the convictions and quashing of the 20-year sentences

The Court found the circumstantial evidence sufficient to sustain the convictions and the trial Judge's analysis correct

p. 13

Costs

No costs order was made in the judgment

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.

we reach the inescapable conclusion that the consolidated appeals fail and are hereby dismissed. Consequently, the judgment of the High Court of Kenya at Malindi (R. Nyakundi, J.) delivered on 4th September 2023 in HCCR Case No. 10 of 2019 is hereby upheld. Orders accordingly.
p. 13Final orders - dismissal of the consolidated appeals and affirmance of the High Court conviction and sentence
the compelling circumstantial evidence that the appellants were the last persons seen with the deceased, and that the 2nd appellant's cap was found at the scene of murder speaks for itself and remained unshaken.
p. 11Sufficiency of circumstantial evidence; irrelevance of absent DNA evidence
we are left with no doubt that the deceased was in the company of the appellants between 3:00pm and 7:00pm, when he was killed and the cap worn by the 2nd appellant left at the scene.
p. 11Finding of fact on the 'last seen with' evidence
The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden, which never shifts to the party accused.
p. 7Burden of proof on circumstantial evidence

Issues in the judgment

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minor

Ground 3 of the memorandum of appeal refers to the investigating officer as 'PW-2' whereas the investigating officer is PW11 (Senior Sergeant Wanjala Mariam), an internal inconsistency in the appellants' grounds

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nguwa alias Kandili & another v Republic (Criminal Appeal E084 of 2023 & E025 of 2024 (Consolidated)) [2025] KECA 2107 (KLR)", Case Analysis (2025). Criminal Appeal Nos. E084 of 2023 and E025 of 2024 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2107/eng@2025-12-05

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