Ezekiel v Republic (Criminal Appeal E016 of 2022) [2026] KECA 1430 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a 35-year murder sentence but ordered it to count from the date of arrest, crediting time spent in remand custody.
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 postmortem report produced by a doctor other than its maker was admissible, and whether failure to record reasons under section 33 of the Evidence Act vitiated the trial
- 2.Whether the identification of the appellant at the scene was safe given the lighting conditions and absence of an identification parade
- 3.Whether the prosecution proved the ingredients of murder, including malice aforethought, beyond reasonable doubt against the appellant
- 4.Whether the appellant's alibi defence was displaced by the prosecution evidence
- 5.Whether the sentence of 35 years' imprisonment was excessive, and the effective date from which it should run
Key legal issues
#Admissibility of a postmortem report produced by a doctor other than its maker
The report was admissible; PW4 identified the maker's signature and handwriting, and no objection to its production was raised at trial, so the objection was waived and could not be raised belatedly on appeal
Section 33 of the Evidence Act is an exception to the hearsay rule permitting admission of statements of persons who cannot be found or whose attendance would cause unreasonable delay or expense. More fundamentally, admissibility is distinct from probative value, and the fact and cause of death were not disputed. Relying on Parkar v NQ and R.V.E. Venkatachala Gounder, the court held that failure to object at the appropriate time bars a belated appellate objection because a waiver evolved as a bar. Had objection been taken, the prosecution could have called the maker or laid a proper foundation.
Identification of the appellant and the alibi defence
The appellant was positively recognized by witnesses who knew him well, under electricity lighting, and his alibi was displaced beyond reasonable doubt
PW1 testified to seeing the appellant hand the co-accused a knife under electricity light, pursue the deceased and stab her in the back; PW2 also saw the appellant stabbing the deceased. The appellant and co-accused were close family members well known to the witnesses, so recognition, not mere identification, was in issue and no parade was necessary. The cumulative unlawful acts of the appellant and co-accused established malice aforethought under section 206(a) and (b) of the Penal Code, rendering the alibi untenable.
Proof of malice aforethought
Malice aforethought was established under section 206(a) and (b) of the Penal Code
The court found that the unlawful acts of the appellant and the co-accused cumulatively amounted to an intention to cause death or grievous harm. The appellant armed the co-accused with a long knife, pursued the deceased and stabbed her, and knew that the stabbing and beating would probably cause death or grievous harm. Six stab wounds inflicted with a dangerous weapon on vital parts of the body supported the inference of intention.
Effective date of sentence
The only ground on which the appeal succeeded: the sentence must run from the date of arraignment, accounting for time spent in remand custody under section 333(2) of the Criminal Procedure Code
Although no submissions were made to justify interference with the 35-year sentence, the court noted that the appellant had been in remand custody since his arraignment on 19th July, 2019. Section 333(2) of the Criminal Procedure Code requires the period of custody prior to imposition of sentence to be taken into account, so the sentence takes effect from that date.
Legal principles established
#- Where an accused represented by counsel does not object at trial to the production of a postmortem report by a person other than its maker, the objection is waived and cannot be raised for the first time on appeal
- Objections to the mode of proof or admissibility of a public or official document such as a postmortem report must be taken at trial; appellate courts will strictly disallow belated objections
- Sentences must take into account the period an accused was held in custody prior to sentencing, in accordance with section 333(2) of the Criminal Procedure Code
Court orders
#- 1.Conviction and sentence of 35 years' imprisonment upheld; appeal dismissed save as to the effective date of the sentence
- 2.The sentence to run effectively from 19th July, 2019, the date of arraignment, taking into account the period held in remand custody under 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 (trial court, Kisii)
- Not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction over conviction and sentence on a murder information (Penal Code sections 203 and 204); specific provision not stated in the judgment
Relief refused
#Setting aside or quashing the conviction
All ingredients of murder, including malice aforethought, were proved beyond reasonable doubt; PW1 and PW2's evidence placed the appellant at the scene and the alibi was untenable
Reduction of the 35-year sentence on grounds of excessiveness, age, lack of criminal history, remorse and the pre-sentence report
No submissions were made to justify interference with the sentence
Costs
No costs order stated 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.
Accordingly, we find that all the grounds of appeal collapse as the appeal is unmerited, save on the point of the efiective date of the imprisonment. The appeal only succeeds to that limited extent, otherwise it is for dismissal in its entirety.
The sentence will run efiective that date taking into account the period the appellant was held in custody prior to the imposition of the sentence and in accordance with section 333(2) of the Criminal Procedure Code.
We are satisfied that if an accused person who is represented by counsel does not object to the production and admissibility of a postmortem report by a doctor other than the maker during the trial, the accused is thereby deemed to have waived that objection and cannot easily raise it on appeal
Appellate courts will therefore strictly disallow objections regarding the mode of proof or admissibility of such document if the defence failed to challenge it at the trial court stage.
Admissibility of a document is one thing and its probative value quite another. These two aspects cannot be combined.
Issues in the judgment
#The judgment states the appeal hearing occurred on 27th April, 2026, yet the memorandum of appeal is dated 23rd November, 2025 and appellant's submissions 5th January, 2026; the trial judgment date of 28th July, 2021 with an appeal filed by November 2025 shows an unexplained gap. Dates are internally consistent as printed but should be verified against the record.
The pathologist is rendered inconsistently in the judgment as 'Dr. Leah Obosy Okworo' and 'Doctor Leah Obony', and the judgment contains typographical errors ('efiective', 'ofience').
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ezekiel v Republic (Criminal Appeal E016 of 2022) [2026] KECA 1430 (KLR)", Case Analysis (2026). Not stated in the judgment (memorandum of appeal dated 23rd November, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1430/eng@2026-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.