Gona & 2 others v Republic (Criminal Appeal E026, E027 & E028 of 2023 (Consolidated)) [2026] KECA 518 (KLR)
The bottom line
#Kenya's Court of Appeal upheld three murder convictions based on circumstantial evidence but replaced the death sentences with 40 years' imprisonment each.
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 its case against the 2nd and 3rd Appellants to the required standard
- 2.Whether the circumstantial evidence adduced against the 2nd and 3rd Appellants was sufficient to sustain their conviction
- 3.Whether the doctrine of recent possession was properly applied in the 3rd Appellant's case and whether his defence was considered
- 4.Whether the sentences imposed on the 1st, 2nd and 3rd Appellants were unconstitutional, harsh and excessive
- 5.Whether Section 333 of the Criminal Procedure Code was applicable to the sentence imposed
Key legal issues
#Ingredients of murder
The prosecution proved death, cause of death, unlawful act and malice aforethought beyond reasonable doubt against the 2nd and 3rd Appellants.
Death and its cause were proved by post-mortem evidence. With no eyewitness, the case rested on circumstantial evidence: the 1st and 3rd Appellants visited the home seeking the deceased, the 3rd Appellant's call to the deceased at 19:43:47 hours preceded death, cellphone data placed them in the vicinity, and malice was inferable from the nature of the injuries inflicted with a sharp object.
Sufficiency of circumstantial evidence
The interlocking chain of circumstances - motive, visits to the home, the phone call, presence at the locus, and recovery of the deceased's phone - excluded any reasonable hypothesis of innocence.
Applying the principles from Koske and Musoke, the Court found the inculpatory facts incompatible with innocence. The 3rd Appellant admitted the visit and the call; the 2nd Appellant was seen fleeing the scene by PW4; the meetings between the 2nd Appellant and PW3's husband established a common intention to eliminate the deceased under Section 21 of the Penal Code.
Doctrine of recent possession
Although the trial court did not expressly apply the doctrine, the deceased's phone recovered from the 3rd Appellant's household shortly after the murder, without credible explanation, supported the inference of guilt.
The 3rd Appellant's claim that he bought the phone from Francis Kitsa Ondieke was unsupported, as Francis never testified. Given the proximity in time between the killing and recovery, the only rational inference was that the 3rd Appellant was either the thief or involved in the killing and robbery.
Sentence - constitutionality of mandatory death penalty
Following Muruatetu, the death sentence was set aside and substituted with forty years' imprisonment, taking into account the brutality of the offence and the mitigations.
The Court acknowledged that the death penalty remains lawful but is no longer mandatory. Weighing the mitigation of the Appellants against the brutal, premeditated manner of the killing and the loss to the deceased's family of six young children, a stiff custodial term of forty years was deemed appropriate, running from first arraignment with Section 333 of the Criminal Procedure Code applying.
Legal principles established
#- A first appellate court must re-examine and re-analyse the evidence afresh and reach its own conclusions, while allowing for the trial court's advantage of observing witness demeanour.
- Circumstantial evidence can sustain a conviction only where the inculpatory facts are incompatible with innocence and incapable of explanation on any other reasonable hypothesis.
- The doctrine of recent possession requires positive proof that the property was found with the suspect, belongs to the complainant, was stolen, and was recently stolen; failure to offer a plausible explanation permits a presumption of guilt.
- The death penalty is no longer mandatory but remains lawful and available in deserving cases; sentencing courts retain discretion to substitute it with a custodial sentence considering mitigation.
Court orders
#- 1.The appeal against conviction is dismissed for all three Appellants
- 2.The appeal against sentence is allowed
- 3.The sentence of death imposed on the Appellants is set aside and substituted with a custodial sentence of forty (40) years imprisonment
- 4.The forty-year sentence to run from the date the Appellants were first arraigned in Court on 5th December 2018, with Section 333 of the Criminal Procedure Code to apply
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appellate jurisdiction under Article 164 of the Constitution over appeals from the High Court sitting as a trial court in murder
- Consolidated with
- Criminal Appeal No. E027 of 2023, Criminal Appeal No. E028 of 2023
Relief refused
#Quashing of the convictions of the 2nd and 3rd Appellants
Circumstantial evidence, including cellphone data and recent possession of the deceased's phone, formed a complete chain pointing irresistibly to their guilt
Outright release of the 2nd Appellant
He was a central participant in the common intention to murder the deceased, seen fleeing the scene with pillion passengers
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 sum, the appeal against the conviction is without merit and is dismissed, while the appeal against sentence is allowed, with the result that the sentence of death imposed on the Appellants be and is hereby set aside, and is substituted therefor with a custodial sentence of forty (40) years imprisonment to run from the date they were first arraigned in Court on 5th December, 2018 and Section 333 of the Criminal Procedure Code to apply.
the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt and the burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is always on the prosecution and never shifts to the accused
The essence of the doctrine is that when an accused person is found in possession of recently stolen property and is unable to offer any reasonable explanation how he came to be in possession of the property, a presumption of fact arises that he is either the thief or receiver.
It (the court) has a duty to perform in considering the weapon used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established
While the death penalty is no longer mandatory, it remains lawful and the ultimate punishment in cases of exceptionally grave circumstances.
Issues in the judgment
#The trial court's quoted judgment contains internally inconsistent dates, recording the identification parade evidence as '11th December 2021' where the incident occurred on 11th November 2018
The judgment is internally inconsistent as to which appellant led the police to the others' arrest
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gona & 2 others v Republic (Criminal Appeal E026, E027 & E028 of 2023 (Consolidated)) [2026] KECA 518 (KLR)", Case Analysis (2026). Criminal Appeals Nos. E026, E027 and E028 of 2023 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/518/eng@2026-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.