Elikana & another v Republic (Criminal Appeal E104 of 2023) [2026] KECA 1658 (KLR)
The bottom line
#Kenya's Court of Appeal upheld two murder convictions and 30-year sentences, confirming that circumstantial evidence and unexplained 'last seen with' circumstances can sustain a murder conviction.
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 the offence of murder against the appellants beyond reasonable doubt
- 2.Whether the circumstantial evidence relied upon met the legal threshold to sustain the conviction
- 3.Whether the appellants' alibi defences raised a reasonable doubt that the trial court erred in rejecting
- 4.Whether the appellants acted with malice aforethought
Key legal issues
#Ingredients of murder
The prosecution must prove three ingredients: death of the deceased and its cause; that the death was unlawful and caused by the accused; and malice aforethought. Death and cause were proved by the post-mortem evidence.
Section 203 of the Penal Code defines murder as unlawful killing with malice aforethought. The Court restated the three ingredients from Chiragu & Another v Republic and Antony Ndegwa Ngari v Republic. The post-mortem by PW4 established a cloth around the neck, scalp cut wound, skull fracture and inter-parietal bleeding, proving death and its cause conclusively; these were not contested on appeal.
Sufficiency of circumstantial evidence and the 'last seen with' doctrine
The circumstantial evidence, coupled with PW3's evidence of recognition, met the legal threshold: the appellants were the last people seen with the deceased, they left the thicket without her, and they offered no satisfactory explanation for her death.
Applying the Abanga three tests and section 111(1) of the Evidence Act, the Court held that PW3 saw the well-known appellants escorting a child into a thicket and leaving without her; a search at the place disclosed in PW3's note led to the discovery of the body. The inculpatory facts were incompatible with innocence, and the appellants' failure to explain how the child met her death justified the inference of guilt.
Alibi defences
The trial court properly rejected the alibi defences: the defence witnesses did not account for the critical period, their evidence was self-serving, and the alibis were raised for the first time at the defence hearing, making them afterthoughts.
While an alibi imposes no burden of proof on the accused and the prosecution must disprove it, DW3 and DW4 did not place the 1st appellant anywhere between 4pm and 6pm; DW5 admitted he could not tell whether the 2nd appellant left home after 3pm; and DW6's evidence was that of a wife intended to exonerate her husband. The alibis were raised only during the defence hearing and were thus an afterthought.
Malice aforethought
Malice aforethought was proved beyond reasonable doubt by the gravity of the injuries, the weapon used and the place the deceased was left.
Section 206(a) of the Penal Code defines malice aforethought to include an intention to cause death or grievous harm. The post-mortem showed a cut wound to the scalp, skull fracture, inter-parietal bleeding and a cloth around the neck, indicating assault and strangulation. The Court inferred from the gravity of the injuries and the abandonment of the child in a thicket that the appellants intended her death.
Identification versus recognition
This was a case of recognition of persons well known to PW3 in broad daylight, not identification of strangers, so conditions of distance, lighting and obstruction did not undermine the reliability of the evidence.
PW3 was related to and familiar with the appellants, and the incident occurred in daylight. Relying on Anjononi & Others v Republic, the Court held that recognition is more reliable than identification of a stranger. Minor contradictions about timings were not material to the prosecution's case.
Legal principles established
#- On a first appeal, the Court of Appeal must undertake a fresh and exhaustive examination of the evidence and reach its own decision, giving due allowance for the fact that it did not see the witnesses testify.
- A criminal conviction may safely be founded on circumstantial evidence only where the circumstances unerringly and irresistibly point to the accused's guilt to the exclusion of all other reasonable hypotheses, satisfying the three-part test in Abanga alias Onyango v Republic.
- Under the 'last seen with' doctrine, where the deceased was last seen with the accused, the accused has a duty to give an explanation as to how the deceased met their death; in the absence of an explanation, the court may infer that the accused killed the deceased, though the overall burden remains on the prosecution.
- An accused who puts forward an alibi assumes no burden of proving it; it is sufficient if the alibi introduces in the mind of the court a doubt that is not unreasonable, and the burden of disproving the alibi lies with the prosecution.
- Identification by recognition of a person well known to the witness is more satisfactory, more assuring and more reliable than identification of a stranger.
Court orders
#- 1.Dismissal of the appeal in its entirety against both conviction and sentence
- 2.The convictions for murder and the sentences of thirty (30) years imprisonment imposed by the High Court remain in force
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisii
- Criminal Case No. 20 of 2018
- Jurisdiction invoked
- First appeal to the Court of Appeal against conviction and sentence from the High Court exercising original criminal jurisdiction (murder charge under section 203 of the Penal Code)
Relief refused
#Quashing of the convictions and setting aside of the thirty-year sentences
The Court found the circumstantial evidence and evidence of recognition by PW3 sufficient, the alibi defences properly rejected, and malice aforethought proved
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.
The upshot is that this appeal lacks merit on both conviction and sentence and we accordingly dismiss it in its entirety.
This Court is enjoined, in a first appeal, to undertake a fresh and exhaustive examination and reach its own decision on the evidence on record, taking into account that it did not see the witnesses testify and give due allowance for that.
a criminal conviction can be safely founded on circumstantial evidence, provided the circumstances unerringly and irresistibly point to the accused's guilt to the exclusion of all other reasonable hypotheses.
where the deceased was last seen with the accused, there is a duty placed on the accused to give an explanation relating to how the deceased met his/or her death.
An alibi raises a specific defence and an accused person who puts forward an alibi as a defence to a charge preferred against him does not in law thereby assume any burden of proving that answer
Furthermore, the alibi defences were only raised during defence hearing and were thus, an afterthought. We are satisfied that the trial court properly rejected the appellants’ alibi defences.
Issues in the judgment
#The judgment records the date of DW3's testimony as '16th April 2028', which is inconsistent with the offence date of 16th April 2018 and the judgment date of 31st July 2026; this appears to be a typographical error in the judgment.
The judgment cites 'Mukhwana v Republic [2026] KECA 188 (KLR)' with a 2026 citation, the same year as this judgment; the citation could not be verified from the judgment itself.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elikana & another v Republic (Criminal Appeal E104 of 2023) [2026] KECA 1658 (KLR)", Case Analysis (2026). Criminal Appeal (from Kisii High Court Criminal Case No. 20 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1658/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.