Gatobu v Republic (Criminal Appeal 32 of 2021) [2026] KECA 1033 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a 40-year murder sentence, ruling that medical treatment following a machete attack does not break the chain of causation.
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 High Court wrongfully admitted the statement of the deceased witness Florence under section 33 of the Evidence Act
- 2.Whether causation was established between the acts of the appellant and the death of the deceased
- 3.Whether the prosecution case was based on mere suspicion
Key legal issues
#Admissibility of a deceased witness's statement under section 33 of the Evidence Act
The High Court misdirected itself by admitting Florence's statement on proof of her death alone, without finding that the statement fell within any of the eight situations in section 33; the statement was inadmissible hearsay.
Section 33 requires, in addition to one of the five conditions of non-attendance (death, disappearance, incapacity, inability to attend, or unreasonable delay/expense), that the statement relate to one of eight enumerated categories such as dying declarations, statements in the ordinary course of business, or statements against interest. The trial judge relied only on the death certificate and never inquired into which category the statement satisfied. Florence's statement fitted none, so it was hearsay improperly admitted.
Causation between the appellant's machete attack and the death five months later
Causation was established. The surgery, ICU admission and multiple brain abscesses were direct and foreseeable consequences of the head injuries inflicted by the appellant; the surgery was not a novus actus interveniens, and section 213(a) of the Penal Code deems death to have been caused where good-faith medical treatment causes death.
The eyewitness evidence (PW1) and corroborating testimony (PW2, PW3) established the appellant cut the deceased on the head with a machete. The pathologist confirmed surgical holes in the skull and brain abscesses as cause of death. Section 213(a) makes it immaterial whether treatment was proper or mistaken if employed in good faith and with common skill. Mwambire v Republic, relying on R v Cheshire, confirms the accused's acts need not be the sole or main cause of death.
Whether the prosecution case rested on mere suspicion
The case was not built on suspicion but on eyewitness evidence of PW1, corroborated in material particulars by PW2 and PW3, the postmortem evidence establishing cause of death, and evidence of prior threats.
Reiterating the settled principle in Parvin Singh Dhalay, Mary Wanjiku Gichira, Sawe and Neema Mwandoro Ndurya that suspicion however strong cannot sustain a conviction, the Court re-evaluated the evidence and found positive, affirmative proof: a daylight eyewitness who knew both men, corroboration on the injuries and on the appellant arming himself and searching for the deceased, the postmortem, and prior threats over a land/inheritance dispute.
Legal principles established
#- Before admitting a statement of a deceased witness under section 33 of the Evidence Act, the court must satisfy itself that the statement falls within one of the eight situations enumerated in the section; proof of death alone is not enough, and a statement falling outside those categories is inadmissible hearsay.
- Under section 213(a) of the Penal Code, an accused is deemed to have caused death where surgical or medical treatment undertaken in good faith with common knowledge and skill causes death; such treatment is not a novus actus interveniens breaking the chain of causation.
- The actions of an accused need not be the sole or even the main cause of death so long as they contributed significantly to that result.
- Suspicion, however strong, cannot substitute for proof beyond reasonable doubt; a conviction must rest on affirmative evidence.
- Where improperly admitted evidence is excised, a conviction may still stand if the remaining admissible evidence proves guilt beyond reasonable doubt.
Court orders
#- 1.Appeal dismissed in its entirety
- 2.Conviction for murder and sentence of forty years imprisonment imposed by the High Court left standing
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Chuka
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction over the High Court (criminal appeal against conviction and sentence for murder under section 203 as read with section 204 of the Penal Code)
Relief refused
#Quashing of the conviction and setting the appellant at liberty
The Court found the appeal lacked merit: although Florence's statement was wrongly admitted, the remaining evidence proved guilt beyond reasonable doubt and causation was established under section 213(a) of the Penal Code
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.
Looking at Florence's statement, it did not relate to any of the eight situations stipulated in section 33 of the Evidence Act, and therefore, it constituted inadmissible hearsay evidence. The High Court was clearly in error.
The surgery and the development of multiple brain abscesses were direct and foreseeable consequences of the appellant hitting and cutting the deceased on the head with the machete. The surgery cannot be perceived as a separate and distinct cause of the death of the deceased
the actions of the accused person need not be the sole or even the main cause of death of the deceased, so long as they contributed significantly to that result.
This Court has consistently held that suspicion, however strong, is no substitute for proof beyond reasonable doubt, of the accused person's guilt by evidence.
If we exclude the statement of Florence, which we have found to have been wrongfully admitted under section 33 of the Evidence Act, there is still suficient evidence on record from PW1, PW2, PW3 and PW7, which we have set out above, proving beyond reasonable doubt that the appellant committed the ofience of murder as charged.
For all the foregoing reasons, we find no merit in this appeal and the same is hereby dismissed in its entirety. It is so ordered.
Issues in the judgment
#Internal textual error: paragraph 32 states PW1 saw 'the deceased hit the appellant on the head', reversing the roles of deceased and appellant as consistently described elsewhere (e.g. PW1 saw 'the appellant hit and then cut him on the head').
Internal textual error: paragraph 33 twice refers to the injuries as inflicted 'on the appellant's head' rather than the deceased's head.
Citation discrepancy for Sawe v Republic: the appellant's counsel cited it as [2003] KLR 364, while the Court's own quotation renders it as [2003] KECA 182 (KlR).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gatobu v Republic (Criminal Appeal 32 of 2021) [2026] KECA 1033 (KLR)", Case Analysis (2026). Not stated in the judgment (first appeal from High Court at Chuka). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1033/eng@2026-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.