Nickson Chepkwony v Republic

3. At the hearing of the appeal on 4th March 2026, the Appellant was represented by learned counsel Mr. Asitiba while Mr. Okemwa represented the Respondent, learned prosecution Counsel from the Oce of the Director of Public Prosecutions. 4. Mr. Asitiba relied on his written submissions led on 10th March 2025 together with a bundle of authorities. He submitted that the Appellant's conviction was based entirely on circumstantial evidence and that the prosecution failed to prove the elements of murder to the required standard of beyond reasonable doubt. He urged that the mere fact that the Appellant was the last person seen with the deceased was insucient to secure a conviction, arguing that suspicion, however strong, cannot be a basis for inferring guilt. He relied on Joan Chebichii Sawe v Republic [2003] eKLR and PON v Republic [2019] eKLR for the proposition that when basing a conviction on circumstantial evidence, the guilt of the accused must not only be a rational inference but should be the only rational inference. 5. Counsel further submitted that there were glaring gaps in the investigations. He pointed out that a ght had broken out at Enroote bar before the deceased and the Appellant proceeded to the house, but the investigating ocer failed to establish the extent of injuries the deceased may have sustained during that ght or to call witnesses from the bar, including its management. He argued that this failure left open the possibility that a third party or the injuries from the bar ght contributed to the death. He emphasized that without expert medical evidence distinguishing the injuries sustained at the bar from those that caused death, the court was left in a gray area. 6. On contradictions, counsel submitted that PW8 testied that the deceased had a green rope tied around her neck while PW9, the pathologist, testied that there was no rope. He argued that the trial court failed to resolve this contradiction. 7. Regarding the doctrine of "last seen", Mr. Asitiba submitted that while the Appellant may have been the last person seen with the deceased, the prosecution failed to prove that he was the only person who had access to the deceased in the GSU camp, which is a guarded and protected area where one cannot simply walk in and out. He argued that the prosecution failed to discharge the burden of proving that the Appellant caused the death, particularly in light of the lack of a clear murder weapon and the Appellant's explanation that the deceased fell and died. 8. Mr. Okemwa, supported the conviction and sentence. He submitted that the prosecution proved the ingredients of actus reus and mens rea. He submitted that the nature of the injuries, the bloodstained bedsheet and clothes found in the Appellant's house, and the blood on the Appellant's trousers connected him to the crime. 9. On malice aforethought, counsel submitted that the Appellant's conduct after the incident was indicative of malice aforethought. He noted that the Appellant disappeared from the scene for more than three (3) days and failed to report the death to his supervisors or the police despite being a police ocer who knew what he ought to have done had the death been accidental. He relied on Simon Musambai Naman v Republic and Republic v Tubere s/o Ochieng [1945] 12 EACA 63 to argue that the conduct of an accused person before, during, and after the incident is crucial in determining malice aforethought. He cited the elements to be considered in determining malice aforethought as set out in the Tubere case (supra): a. the nature of the weapon used, b. the manner in which it was used, c. the part of the body targeted, d. the nature of injuries inicted, and https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1719/eng@2026-09-25 2

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e. the conduct of the accused person before, during and after the incident. 10. On the issue of the ght at the bar, Mr. Okemwa submitted that the evidence showed the deceased sustained only a slight injury on the lip during a ght with another lady at the bar and was able to walk unaided to the house with the Appellant, with the Appellant assisting her to be cleared at the gate, thereby negating the Appellant's claim that injuries from the bar caused her death. 11. This being a rst appeal, we are duty-bound to re-evaluate the evidence adduced before the trial court, analyze it, and arrive at our own independent conclusions, bearing in mind that we neither saw nor heard the witnesses testify. See Okeno v. Republic [1972] EA 32 and Pandya v. Republic [1957] EA 336. From the grounds of appeal and submissions, we identify the following issues for determination: a. Whether the prosecution proved the oence of murder beyond reasonable doubt. b. Whether the conviction based on circumstantial evidence was safe. c. Whether the failure to call certain witnesses and the alleged contradictions in evidence rendered the trial unsafe. 12. Before considering the issues, it is prudent to briey summarize the evidence that was placed before the trial court. The prosecution called nine (9) witnesses. PW1 testied that on the night of 21st December 2013, he was at the GSU camp gate when he saw the Appellant arriving in the company of the deceased, whom he assisted to clear into the camp. It was the prosecution’s case that prior to this, they had been at Enroote bar where the deceased sustained a slight injury on the lip during a ght with another lady, but she walked to the house unaided. 13. PW8 testied that the following morning, he found the deceased’s body lying in the Appellant’s house in a pool of blood, and observed a green rope tied around her neck. PW9, the pathologist, conducted the autopsy and formed the opinion that the cause of death was a head injury due to blunt force trauma. 14. The investigating ocer and other witnesses testied that the Appellant was missing from the scene and was only found hiding days later. A blood-stained bedsheet and clothes were recovered from the house, and forensic analysis conrmed that blood matching the deceased’s DNA was found on the Appellant’s trousers. 15. In his unsworn defence, the Appellant stated that they had been at Enroote bar before proceeding to his house, where the deceased fell and died. He called one witness, DW1, who testied about their movements that night, including a ght involving the deceased that he placed near a boda-boda stage outside the bar. 16. On whether the prosecution proved the oence of murder, the three essential ingredients of murder are: 17. a. the death of the deceased and the cause of that death; b. that the death was caused by an unlawful act or omission on the part of the accused; and c. that the act was committed with malice aforethought. See R v. Tubere s/o Ochieng [1945] 12 EACA 63. It is not disputed that the deceased died. The post-mortem report produced by PW9 established the cause of death as head injury due to blunt force trauma consistent with a fall or a blow. The issue is who caused the injury and with what intent. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1719/eng@2026-09-25 3

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18. The prosecution's case rested on circumstantial evidence. The Appellant and the deceased were seen arriving at the GSU camp together, with the Appellant assisting the deceased to be cleared at the gate. The following morning, the deceased was found dead in the house in a pool of blood, while the Appellant was missing. A blood-stained bedsheet and other clothes were recovered from the house. The Appellant was found days later hiding. Blood matching the deceased's DNA was found on the Appellant's trousers. 19. The Appellant oered an unsworn statement stating that the deceased fell and died. Notably, there was a contradiction between the Appellant's evidence and that of his own witness regarding the bar ght. The Appellant testied that the ght occurred inside Enroote bar, while his own witness informed the court that they found two ladies ghting near a boda-boda stage when they left Enroote bar to go to Rex Inn, Naivas. This inconsistency in the defence evidence weakened the Appellant's case. 20. More critically, the Appellant did not explain how blood got onto his trousers or why he ed the scene instead of reporting the death as a police ocer. Section 206 of the Penal Code denes malice aforethought to include knowledge that the act or omission will probably cause death or grievous harm. Malice aforethought can be inferred from the nature of the weapon used, the manner of its use, and the conduct of the accused before and after the act. In Republic v. Tubere s/o Ochieng (supra), the court held that the conduct of an accused person immediately before or after the death of the deceased is relevant in showing malice aforethought. 21. The Appellant's ight from the scene and his failure to report the death for more than three days are inconsistent with innocence. If, as he claimed, the deceased fell accidentally, there was no reason for him, as a police ocer well aware of the procedures, to ee. His conduct points to a consciousness of guilt. The subsequent discovery of the deceased's blood on his trousers, alongside the blood-stained bedsheet in his house, further signicantly pokes holes in his defence of an accidental fall. The trial court was therefore correct in nding that the prosecution had established the ingredient of malice aforethought. 22. On the second issue regarding the safety of the conviction based on circumstantial evidence, the law is settled. In R v. Kipkering Arap Koske & Another [1949] 16 EACA 135, it was held that in order to justify an inference of guilt on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. Moreover, in Sawe vs. Republic (supra), this Court held that suspicion, however strong, cannot provide a basis for inferring guilt. 23. We have carefully evaluated the evidence adduced before the trial court. The chain of events is rmly established. The Appellant and the deceased were last seen together at the gate of the GSU camp. The deceased was found dead inside the Appellant's house the following morning. The Appellant absconded from the scene. The circumstances are not merely consistent with the Appellant's guilt; they are incompatible with his innocence. The hypothesis that a third party entered the guarded GSU quarters, killed the deceased, and left without the Appellant noticing or raising alarm is far- fetched and not supported by any evidence. The Appellant's presence in the house and his subsequent ight creates an unbroken chain that points irresistibly to him as the perpetrator. We nd no merit in the Appellant's argument that the conviction was based on mere speculation. 24. Regarding the third issue on the failure to call witnesses, the Appellant argued that the investigating ocer failed to call witnesses from the bar where a ght allegedly occurred. The evidence on record established that the deceased sustained only a slight injury on the lip during a ght with another lady. The post- mortem did not attribute the death to an injury on the lip but to a head injury caused by blunt force trauma. Furthermore, the deceased was able to walk to the house with the Appellant, https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1719/eng@2026-09-25 4

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who assisted her to be cleared at the gate without any visible debilitating injuries being observed. Consequently, the failure to call the bar manager or other patrons does not create a fatal gap in the prosecution's case. The cause of death was clearly established and linked to the events in the house. In G.W.G v Republic [2018] eKLR, this Court held that the prosecution is not obligated to call a superuity of witnesses, and the failure to call a particular witness is not fatal if the evidence on record is sucient to prove the case beyond reasonable doubt. 25. As for the alleged contradiction regarding the rope, the trial court had the opportunity to see and assess the evidence. PW8 testied to seeing a rope. PW9, the pathologist, performed the autopsy. A minor discrepancy on the presence or absence of a rope does not necessarily vitiate the trial if the cause of death being blunt force trauma was not contested and was established by expert medical evidence. The trial court evaluated this evidence and found that the cause of death was established. We see no reason to interfere with that nding. 26. The Appellant's counsel attempted to argue that the "last seen" doctrine was based on mere suspicion. However, during the hearing, counsel readily conceded that this principle places a burden of explanation on the person last seen with the deceased. This commonsensical doctrine is a recognized principle of law. Where an accused person is the last person seen with a deceased and the deceased is found dead shortly thereafter, and the accused oers no reasonable explanation for the death, an inference of guilt may be drawn. See Mwangi vs Republic [2020] KECA 134. In this case, the Appellant was the last person with the deceased at the gate; he was found with her blood on his trousers and a blood- stained bedsheet in his house, and he ed. The last seen principle, coupled with the incriminating circumstances of ight and blood stains, placed an evidentiary burden on the Appellant to explain himself, which he failed to do satisfactorily. His unsworn statement that the deceased "fell and died" raised more questions than it answered and can only be termed a convenient afterthought unable to dislodge the compelling prosecution evidence. 27. In conclusion, we nd that the High Court properly analysed the evidence and applied the law correctly. The prosecution proved its case beyond reasonable doubt. The conviction was safe and the sentence lawful. The appeal lacks merit and is accordingly dismissed. 28. The appeal is dismissed. The conviction and sentence are armed. Order accordingly. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026. P. O. KIAGE ..................................... JUDGE OF APPEAL R. NGETICH ...................................... JUDGE OF APPEAL RADIDO S. OKIYO ..................................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1719/eng@2026-09-25 5

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DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1719/eng@2026-09-25 6

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