Chrispinus Wanyonyi Barasa & another v Republic
The bottom line
#Kenya's Court of Appeal upheld two murder convictions but ordered that time the men spent in remand be deducted from their 30-year sentences.
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 trial court erred in relying on a dying declaration that was unsigned, unauthenticated and uncorroborated
- 2.Whether the trial court erred in rejecting the appellants' alibi defences and in dealing with the contradictory testimony of PW8
- 3.Whether the sentence of 30 years was manifestly excessive, having regard to the absence of a pre-sentence report and the failure to account for time spent in remand under Section 333(2) of the Criminal Procedure Code
Key legal issues
#Admissibility and weight of an unsigned dying declaration
A dying declaration need not be signed or thumb-printed by its maker; admissibility turns on whether the deceased made the statement as to the cause of his death, and it should be received with circumspection and preferably corroborated.
Under Section 33(a) of the Evidence Act, statements by a deceased person as to the cause of death are admissible. The court held no legal requirement of signature exists; the deceased's burnt hands made signing difficult. The statement was made voluntarily after the deceased stabilised, in the presence of multiple witnesses, and was corroborated by the paraffin smell at the scene and eyewitnesses to its recording.
Effect of contradictions in prosecution evidence
Minor discrepancies regarding the sum stolen and number of attackers did not prejudice the appellants; only substantial and fundamental inconsistencies entitle an accused to the benefit of doubt.
Relying on Section 382 of the Criminal Procedure Code and Richard Munene v Republic, the court held interference is warranted only where discrepancies are so fundamental as to cause prejudice. The core facts of the declaration remained consistent and were corroborated by scene evidence and witnesses present when the deceased narrated his ordeal.
Hostile witness PW8
PW8's contradictory testimony and torture claims did not destroy the prosecution case, which rested on the deceased's dying declaration rather than PW8's identification.
PW8 was a hostile witness summoned under a warrant of arrest. The prosecution did not rely on him for identification. Malice aforethought was established under Section 206 of the Penal Code by the act of pouring kerosene on a person and setting them ablaze.
Compliance with Section 333(2) of the Criminal Procedure Code
The trial court erred in failing to deduct remand periods; those periods must be taken into account in computing the 30-year sentences.
Citing Bethwel Wilson Kibor v Republic on the mandatory nature of Section 333(2), and the prosecution's concession, the court confirmed the 1st appellant spent 2 years, 7 months and 13 days, and the 2nd appellant 4 years, 3 months and 25 days, in remand, which must be credited.
Pre-sentence report
Absence of a pre-sentence report was a departure from best practice but did not of itself render the sentence improper, though it deprived the court of a social inquiry.
The Judiciary Sentencing Policy Guidelines recommend such reports in felony cases but are not statutory provisions. The trial court nonetheless considered first-offender status and mitigation, and the heinous nature of the offence justified the 30-year term.
Legal principles established
#- There is no legal requirement that the maker of a dying declaration sign it; admissibility depends on whether the statement was made by the deceased as to the cause of his death.
- An appellate court interferes with a sentence only where the trial judge acted on wrong principles or overlooked material factors.
- Section 333(2) of the Criminal Procedure Code mandatorily requires that time spent in remand custody be accounted for in sentencing.
- Failure to call a pre-sentence report, though a departure from best practice, does not automatically render a sentence improper or illegal.
Court orders
#- 1.Appeal against conviction dismissed
- 2.Appeal against sentence succeeds only to the extent that the remand custody periods of each appellant shall be taken into account in computing the 30-year sentences in accordance with Section 333(2) of the Criminal Procedure Code
- 3.Term of imprisonment for each appellant to run from the date of conviction by the trial court on 22nd September 2021
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Bungoma
- Bungoma HCCRC No. 16 of 2015
- Jurisdiction invoked
- First appellate jurisdiction over a High Court murder conviction and sentence (Criminal Procedure Code appellate provisions)
Relief refused
#Quashing of the convictions
Dying declaration was properly admissible and corroborated; discrepancies were minor and non-prejudicial
Reduction of the 30-year sentence
Offence was brutal and heinous; trial court considered first-offender status and mitigation; no material factor overlooked
Costs
No costs order recorded 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 admissibility of a dying declaration does not depend on a signature, but on whether the statement was indeed made by the deceased regarding the cause of his death.
it is only when inconsistencies are substantial and fundamental that an accused person is entitled to the benefit of doubt
The failure to call for a pre-sentence report, while a departure from best practice, does not automatically render the sentence improper or illegal.
the period of 4 years, 3 months and 25 days the 2nd appellant spent in remand custody from 27 th May 2017 until his conviction on 22nd September 2021 shall be taken into account in the computation of the sentence of 30 years' imprisonment
For the avoidance of doubt, the term of imprisonment for each of the appellants shall run from the date of the appellants’ conviction by the trial Court on 22nd September 2021.
Issues in the judgment
#Page numbering is internally inconsistent throughout the judgment
Counsel's name rendered inconsistently ('Mr. Otienorightly conceded')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chrispinus Wanyonyi Barasa & another v Republic", Case Analysis (2026). Criminal Appeal No. E006 of 2026 (formerly KSM No. E147 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2025/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.