Paul & another v Republic (Criminal Appeal E291 of 2022) [2026] KECA 1162 (KLR)
The bottom line
#Kenya's Court of Appeal freed two men convicted of murder because forensic gaps and a missing key witness left the prosecution's case unproven beyond reasonable doubt.
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 established the ingredients for the offence of murder beyond a reasonable doubt so as to sustain the conviction arrived at by the trial Court
- 2.If in the affirmative, whether the trial Court exercised the discretion to impose the death sentence judiciously
Key legal issues
#Whether the cause of death was established and linked to the appellants beyond reasonable doubt
The Court found the prosecution failed to establish the cause of death and link it to the appellants: the organophosphate pesticide in the syringe was scientifically absent from the deceased's internal tissues and no forensic evidence bridged that gap.
PW1's postmortem gave only a suspected cause of death (ingestion of poisonous substances). PW5's analysis found no poisonous substance in the intestines, liver and lungs, while the syringe contained organophosphate pesticide fatal only if ingested. No forensic evidence explained how the substance could have been ingested yet be scientifically absent from the sampled tissues, so the link to the appellants was not proved beyond reasonable doubt.
Failure to charge or call Lucas Odhiambo, identified by the investigating officer as the main culprit
The adverse inference in Bukenya v Uganda applies: the unexplained failure to charge or call Lucas, whom PW7 called the main culprit, left an enormous gap in the prosecution's proof of guilt.
PW7 conceded in cross-examination that Lucas, the insurance beneficiary, was the main culprit yet was neither arrested nor called. Applying the three Bukenya rules, and giving no valid explanation, the Court drew the adverse inference that Lucas' testimony would have been adverse to the prosecution, compounding the contradictions among prosecution witnesses and defeating proof beyond reasonable doubt.
Identification of which appellant administered the substance
The conflicting testimony of PW3, PW4 and PW7 meant the prosecution failed to cogently show which of the two appellants administered the substance in the syringe.
PW3's evidence on cross-examination attributed the act to the 2nd appellant while her examination-in-chief referred to the 1st; PW4 was not definitive on which appellant was the suspect he found being beaten; PW7 said it was the 1st appellant. The Court, re-evaluating this conflicting evidence on a first appeal, held it could not be trusted and scattered the prosecution's case.
Malice aforethought and joint liability
With the appellants not linked to the cause of death, malice aforethought and any common intention under Section 21 of the Penal Code could not be established.
Since the prosecution failed to prove the unlawful act causing death, the element of malice aforethought necessarily collapsed; there was no evidence, individual or joint, of intention to cause death or grievous harm. The respondent's reliance on Section 206(a) of the Penal Code was rejected as unsupported by the record.
Duty of the first appellate court
As a first appellate court, the Court was bound to re-evaluate, re-assess and re-analyse the entire evidence and reach its own conclusions, making allowance for the trial court's advantage of seeing and hearing the witnesses (Okeno v Republic).
The Court restated the classic Okeno framework: an appellant on a first appeal is entitled to a fresh and exhaustive examination of the evidence and to the appellate court's own decision on it; the first appellate court must weigh conflicting evidence and draw its own conclusions, not merely scrutinise for some supporting evidence.
Legal principles established
#- Proof of death alone is insufficient to sustain a murder conviction; the prosecution must establish the cause of death and link it to the unlawful act or omission of the accused beyond reasonable doubt.
- Where the prosecution fails, without valid explanation, to charge or call a material witness or main culprit, the court is entitled to draw an adverse inference that their evidence would have been unfavourable to the prosecution.
Court orders
#- 1.Both appellants' convictions for the offence of murder are quashed
- 2.The sentence of death imposed against each appellant is set aside
- 3.Each appellant is 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 (trial court, Homa Bay; murder trial)
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal over conviction and sentence on a charge of murder under the Penal Code (Sections 203 and 204 as read with Section 204)
Relief refused
#Determination of the remaining grounds of appeal (alibi defence and sentence)
Having found the conviction unsustainable, the Court declined to delve into the other issues raised
Costs
No costs order was 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.
By that evidence of PW1 and PW5 we find that the prosecution failed to establish the cause of death as linking it to the appellants beyond reasonable doubt.
The prosecution has a duty to present all evidence necessary to uncover the truth, and failing to call a "star witness" or the main culprit, like in the instant appeal, permits us to draw a negative inference that the testimony would have exposed fatal fiaws in the prosecution's case.
The confiicting evidence cannot be trusted and it scatters the prosecution case in linking the appellants to the alleged unlawful cause of the death, beyond reasonable doubt.
The upshot is that to the extent of our findings, the prosecution failed to establish all the ingredients for the ofience of murder as was alleged against both appellants. The trial Court’s conviction and sentence of both appellants is not sustainable.
We accordingly allow, quash both appellants’ convictions for the ofience of murder and set aside the sentence of death imposed against each appellant. Each appellant is set at liberty forthwith unless otherwise lawfully held.
Issues in the judgment
#Internal date inconsistencies: the record describes submissions dated 2025 and 2026, a hearing on 29th April 2026, and DW1 referring to the delivery of items as occurring on '25th October, 2025' although the offence is alleged to have occurred on 25th February, 2021.
PW4 is recorded as finding the suspect on 25th February, 2022, whereas the offence is alleged to have been committed on 25th February, 2021.
Paragraph 35 attributes PW3's testimony inconsistently, stating the 1st appellant gave the child medicine orally but then that on cross-examination she testified the 2nd appellant gave her food staffs, and that the 1st appellant 'left the house running' and 'he was arrested' - conflating the roles of the two appellants as recorded elsewhere in the judgment.
The judgment does not state the appeal number or the names of the appellants in full; the coram lists only surnames/initials and the case number field is empty on the face of the record.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul & another v Republic (Criminal Appeal E291 of 2022) [2026] KECA 1162 (KLR)", Case Analysis (2026). Criminal Appeal (not stated on the face of the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1162/eng@2026-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.