Francis Lokai alias Bulai v Republic

PW1, Halima Aloo Abdulla, testied that on the morning of 26th August 2014, at around 8:00 a.m., together with her father and a neighbour named Niano Yusuf, they escorted their herd of 150 goats and sheep across a seasonal river. Later, the two ladies returned home leaving her father to continue grazing the livestock. They expected him back by 6:00 pm. When he failed to return and ve goats arrived back home on their own, PW1 alerted Niano Yusuf. Together, they raised an alarm, prompting the sub-area administration and Kenya Police Reserve (hereinafter referred to as KPR) to launch a search while they remained at home. At 9:30 p.m., her father's remains were brought home after being found in a gully. Police from Isiolo subsequently took the body to the mortuary. The following day, PW1 was informed that the suspects had been arrested and that the stolen goats had been recovered. She saw the arrested individuals, who were the accused persons in the dock at the police station, though she could not recall if any of their goats were among those recovered. 5. PW2, Atois Ali Ismail, testied that at 6:30 pm on the day of the incident, on returning from the mosque PW1 reported her father's absence and the return of some goats. PW2 accompanied a group of women, children, and elders across the gully, where they discovered footprints leading towards the hills. He returned to the village and mobilised two home guards, Shamar and Adan Dire. The search party split; Shamar accompanied the group going to the right, which included PW2, while Adan Dire went with the group heading to the left. PW2's group discovered a slaughtered sheep placed across the road and noticed footprints dispersing in dierent directions. Nearby, they discovered the body of the deceased, whose head had been crushed with a stone. PW2 alerted the Chief, who contacted the OCS, and a police vehicle. The group that tracked to the left followed the footprints to Mile Saba, where they managed to track 35 goats, recover 3 sheep, and arrested 6 people the following morning. PW2 noted that the deceased grazed livestock for various villagers for pay to educate his children. The owners later identied their recovered livestock, had photographs taken, and received their animals back. 6. PW3, Nimo Yusuf, testied that the deceased was her herdsman. On the morning of 26th August 2014, she conrmed her goats were intact and helped PW1 and the deceased drive the animals across the seasonal river before returning home. At 6:00 pm, PW1 informed her that her father had not returned and some goats had come back on their own. PW3, PW1, and another livestock owner, Mama Adheisha, raised an alarm, drawing the attention of members of the public who promptly contacted the KPR to search the elds. The deceased's body was discovered within a game reserve at around 10:00 p.m. and taken to the mortuary by the police. On 27th August 2014, PW3 went to the Meru livestock market but did not recover any goats. Around midday, she received word from the police and KPR that ve people had been arrested and several goats recovered. At the police station, she identied two of her own goats and observed the ve suspects whom she did not know prior to that day but was able to recognized them in court. 7. PW4, Etabo Ajunu, recalled that at 6:00 a.m. on 27th August 2014, PW5 called on him to help track the stolen goats. PW4, PW5, a ranger named Lomoruti, and several other rangers tracked the hoof prints during day to Kikili Primary School. At the school they discovered 35 goats and 3 sheep accompanied by three individuals who on seeing them ran away. PW4 was able to identify two of the individuals; one was the appellant, who lived in the same village as him, and the second was a man named Lowoi, who remained at large. He did not know the third person. PW4 and 14 other elders managed to arrest the appellant and 5 others in the bush. The recovered goats, along with six suspects, were escorted to the Isiolo Police Station, with PW4 noting that the police arrested the other suspects. 8. PW5, Daniel Ngochiro, testied that on 27th August 2014, at 6:00 a.m., he received a call from Ranger Mururi regarding stolen goats and a murdered herder. PW5 informed his neighbour, PW4, and they rushed towards the school where they met the rangers and discovered 35 goats and three sheep. Upon their arrival, three people ed the scene: the appellant, Lowei, and an unknown third individual. While https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1856/eng@2026-09-25 2

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the rangers drove the livestock toward Isiolo and rounded up six other people within the village, the appellant evaded capture and was arrested on 2nd September 2014. On that date, acting on a tip that the appellant had gone to town, they laid an ambush and arrested him in a forest along the road to the GSU Camp, and subsequently escorted him to the police at Kakili Primary School. PW5 properly identied the appellant in the dock. During cross-examination, he noted he had known him for a long time and that the appellant did not own any livestock. 9. PW6, Isaack Hassan Yusuf, testied that on 26th August 2014, at 6:00 pm, he heard screams in the village and learnt that someone had been killed and goats had been stolen in Bura Sub-Location. Accompanied by members of the public, home guards/KPR, and conservers, they followed the hoof prints to the Kikili area, where they recovered 35 white goats and 3 sheep. They arrested ve suspects, who were found in possession of the stolen goats at the recovery site, and escorted them to the police station. He did not know the suspects before that day. 10. PW7, Adan Mohamed Ali, a home guard, recalled that on 26th August 2014, goats were stolen after a herder named Ali was killed. Upon receiving the report, the search party split into two groups, and PW7 joined the team pursuing the stolen goats by following their hoof prints. They eventually traced the goats at 6:00 a.m., recovering a total of 37 goats and arresting 5 suspects who were found in possession of the animals. He identied the ve suspects in the dock, noting that they were escorted alongside the goats to the Isiolo Police Station. 11. PW8, Joseph Lomoul, testied that on 26th August 2014, at 10:00 pm, his boss, Sgt. Adan Ndonye, received a call regarding stolen goats and a murdered herder. They proceeded to the scene and followed hoof prints along the way, which eventually split into two directions. PW8’s group followed the tracks toward Kakili, where they recovered 38 goats. They also noticed tyre marks, meaning that some animals had been ferried away in a vehicle. They arrested the watchman of Kakili Primary School for failing to raise an alarm despite the vehicle being right at the school fence. Two suspects were found where the goats were recovered; some were brought to the scene by the KPR, and the appellant was handed over by Kakili elders. Following the recovery and arrest, PW9 contacted the OCPD Isiolo, and a vehicle was sent to transport the suspects and the animals to the police station. 12. PW9, Sgt. Adan Ndonje, testied that on 26th August 2014, at 10:00 pm, a village elder named Mzee Guyo called for assistance after cattle rustlers stole goats in LMD Kilimani. PW9, alongside three ocers and a driver, went to the scene and noted the hoof prints. The driver and one ocer returned to the conservancy while the remaining team tracked the marks on foot. They slept at Soi after losing the tracks but resumed at 6:00 am the next morning, tracking the prints to Kakili. They recovered 38 goats next to Kakili Primary School and found four men among them, though one escaped. A sheep that had given birth that morning was separated from the herd, and its tracks led ocers to a location where accused 2 and accused 4 were subsequently apprehended by KPR. Accused 1, accused 3, and the appellant were found with the goats. The Isiolo police were called, and the suspects and recovered goats were transported to Isiolo. PW9 stated he did not know the deceased, nor did he know the accused persons prior to the case. 13. PW10, Abdi Hussein Abdi, testied that on 26th August 2014, Ali Ismael informed them at 6:00 pm that the goats had failed to return home. Alongside KPR ocers and elders, PW10 joined the search and divided themselves into two groups at a gulley around 8:00 pm. PW10’s group, which included a KPR ocer named Adan, tracked the goat prints toward Soi, where they slept for the night. The following morning, they resumed the search and found the tracks near Kakili Primary School, suspecting some goats had been moved by a vehicle. They recovered 38 goats near a Manyatta adjacent to Kakili Primary School. PW10 testied further that accused 3, 4, and the appellant were arrested directly among the animals, while accused 1 and 2 were apprehended not very far from where the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1856/eng@2026-09-25 3

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goats were found. A sixth individual managed to escape. Police from Isiolo subsequently arrived with a vehicle and escorted the suspects and the animals to the station. PW10 told the court that the suspects were unknown to him prior to 26th August 2014. 14. PW11, Dr Mohamed Abdi Kader Meddle, testied and presented a post-mortem report led by his colleague, Dr Mugaka, with whom he had worked for four years and whose handwriting and signature he recognised. The post-mortem was conducted on 27th August 2014, at the Isiolo County Referral Hospital on the body of the deceased, who was identied by his uncle, Ali Hassan. 15. General observation was that the deceased was male, approximately 58 years old, of good physique and nutrition, and measured 5 feet in height. The body was well preserved. An external examination revealed an open skull fracture located on the frontal bone of the head with protruding brain matter, multiple bruises on the right cheek, a fracture of the cervical bone, and multiple fractures of the facial bone extending towards the mandible. Additionally, there were fractures on six anterior upper ribs on both sides, while the posterior side was normal. Multiple bruises were also noted on the upper limbs, while the lower limbs appeared normal. At the request of the relatives, the body was not dissected for postmortem, and Ali Hassan Boru signed the request to forgo the opening of the body. The doctor concluded that the death was caused by severe head injuries due to crash trauma to the head and chest, leading to cardiac pulmonary arrest. 16. PW12, Cpl. Evans Mose testied that he received an exhibit memo form containing photographs from Constable Silas Wahome of the Isiolo DCI ACD, requesting that he process and supervise their printing. He supervised the printing of 12 photographs depicting several goats and sheep, which he produced in court as exhibits. The produced items included the exhibit memo form as Exhibit P 2(a), the processing certicate as Exhibit P 2(b), and the 12 bundles of photographs as Exhibit P 2(c). Under cross-examination PW10 claried that he did not personally visit the crime scene or take the photographs himself; instead, he received a CD containing the images via the exhibit memo form. He noted that 9 goats are visible in the rst photograph, while the number of goats in the second photograph cannot be ascertained. He further stated that suspects are never photographed as exhibits. 17. PW13, Cpl. Samson Morito, the investigating ocer, testied that on 26th August 2014, at around 10:30 p.m., he was on duty when the then OCS Chief Inspector Vitalis Odhiambo instructed him, along with Corporals Kemboi and Raria, and Constables Kori, Mercy Saisi, Reru, and Wahome, to accompany him to a murder scene within the Kilimani area. Upon arrival, they found that the body of the deceased had already been removed to his home. They learned that deceased had gone out grazing that morning, and word had spread that the animals he was herding consisting of about 200 goats and sheep had been stolen. The body exhibited a visible injury on the right side of the head. Led by members of the public, the ocers visited the actual scene of the crime, located about 2 kilometers from the deceased’s home, before moving the body to the Isiolo Referral Hospital Mortuary for a postmortem examination. 18. On 27th August 2014, the 1st to 4th accused persons were arrested at the Kakili area by KPR who had tracked the footprints of the stolen animals. The appellant managed to run away at the time of their arrest. At the scene of the arrest, 35 goats and 3 sheep were recovered. Police ocers were called to escort both the suspects and the livestock exhibits to the police station. PW13 took photographs of livestock at the police station. The recovered sheep and goats were subsequently identied by their owners. Later, on 2nd September 2014, the remaining suspect, the appellant, was apprehended by members of the public in Kakilu, and police ocers picked him and escorted him to the Isiolo Police Station. PW10 recorded statements from the witnesses, concluding that the accused persons murdered the deceased in the process of stealing the animals he was grazing. He conrmed that the suspects in the dock were https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1856/eng@2026-09-25 4

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the ones arrested following the theft, that they came from Kakili (which is far from the deceased's residence), and that they were not known to him prior to their arrest. 19. When placed on his defence, DW5, the appellant, elected to give sworn evidence and testied that he spent 26th August and 27th August 2014 weeding his farm during the day and staying home at night, noting he only reared chickens and rabbits rather than livestock. On 2nd September 2014, two individuals named Nachupai Apul (also referred to as Nacupi/Machupen) and Daniel Achuro Ajiot (Ngachure/Nashuro) visited his home and lured him into taking a walk to Isiolo town. On arrival via a motorcycle, they ate at a hotel, and bought miraa, when Daniel suggested they walk to the Isiolo CBD leading them to the Isiolo Police Station. The appellant explained that he was a police informer who had previously reported Daniel and Nachupai for possessing an unlicensed rearm, resulting in their arrest and release on a cash bail of Kshs. 500,000/-. 20. The appellant testied further that while waiting outside the station, Daniel and Nachupai spoke privately with an ocer and handed him money, after which the ocer arrested the appellant. He stated that the OCPD expressed surprise at his arrest, given the appellant's history as an informant. Nonetheless, he was held in the cells, taken to court on 3rd September 2014, remanded for 14 days, and eventually brought to the Meru court to face a murder charge. The appellant maintained that he did not know the deceased or his co-accused beforehand, denied stealing goats, and asserted he was framed due to a grudge regarding his work as a police informer. He sought to introduce an OB extract and investigation diary as evidence. 21. In its determination the trial court held that while testimonies from various prosecution witnesses conicted regarding the specic circumstances and exact locations of the arrests of the 1st, 2nd, 3rd, and 4th accused persons, the evidence against the 5th accused person, the appellant, remained strong and consistent. The court found that PW4 and PW5 rmly identied him at the scene where the stolen goats were recovered before he initially escaped into a nearby forest. He was subsequently apprehended in an ambush on 2nd September 2014, when attempting to return to his hideout. Although the appellant argued that his arrest was a frame-up resulting from a grudge over a rearm report, the court dismissed his defence as an unsupported afterthought that failed to challenge the overwhelming prosecution evidence. 22. Ultimately, the court ruled that the prosecution failed to prove its case beyond a reasonable doubt against the rst four accused persons due to contradictory and insucient evidence, resulting in their acquittal. Conversely, the court found the appellant guilty, determining that his possession of the stolen goats less than a day after the incident pointed directly to his involvement in the murder. 23. In an undated memorandum of appeal, the appellant faulted the trial Judge for failing to note that the testimonies of the prosecution witnesses had contradictions and inconsistencies; failing to take into account that there were no eyewitnesses to prove that the appellant had killed the deceased; failing to consider that the evidence adduced was hearsay; failing to consider that the investigations were shoddy; not considering that the circumstantial evidence relied upon was not properly examined; and for rejecting the appellant’s defence without giving cogent reasons in spite of the same being credible. 24. Learned counsel for the appellant, Mr Tsuma Mshilla, led submissions and a list of authorities both dated 22nd August 2025. According to counsel, the prosecution's case was fundamentally awed as it was marked with serious inconsistencies regarding the circumstances of the appellant’s arrest, his alleged possession of the stolen goats, and his connection to the murder. Counsel submitted that the prosecution witnesses gave irreconcilable accounts as to whether the appellant was arrested at the scene or escaped. While PW4 and PW5 testied that he escaped from the scene when suspects were being rounded up, PW6, PW7, PW9, and PW10 maintained that he was arrested at the scene together with https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1856/eng@2026-09-25 5

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the animals. As relates to the recovery of the animals, PW2 claimed that the suspects were found with the animals the following day, while PW9 and PW10 gave diering accounts as to which accused persons were found among the animals. 25. Counsel argued that these inconsistencies were material because they went to the heart of the prosecution’s case and cast serious doubt on whether the appellant had ever been in possession of the goats or was even present at the scene. He relied on Richard Munene v Republic [2018] KECA 186 (KLR), emphasizing that material contradictions and inconsistencies in the prosecution’s evidence should be resolved in favour of an accused person, particularly where they undermine the credibility of the prosecution’s case. 26. On whether the case was proved beyond reasonable doubt, counsel contended further that the prosecution failed because there was neither direct nor sucient circumstantial evidence linking the appellant to the killing. None of the prosecution witnesses testied to having seen him attack or kill the deceased. The case against him was based solely on the allegation that he had been found near animals believed to belong to the deceased. 27. Counsel submitted that mere suspicion, however strong, cannot form the basis of a criminal conviction and, in support of this proposition, relied on the case of Sawe v Republic (Criminal Appeal 2 of 2002) [2003] KECA 182 (KLR). He contended that the circumstantial evidence relied upon by the prosecution was inadequate because the contradictory accounts concerning the recovery of the animals and the appellant's arrest destroyed the integrity of the evidentiary chain. Consequently, there was no complete and unbroken chain of circumstances pointing irresistibly to the appellant’s guilt, as required by law for a conviction founded on circumstantial evidence. The prosecution therefore failed to discharge its burden of proving the oence beyond reasonable doubt. 28. Counsel buttressed that the burden of proof always rests on the prosecution and, in support, relied on Sekitolo v Uganda [1967] EA 53, Oketch Okale v Republic [1965] EA 555, Gordon Omondi Ochieng v Republic [2021] KEHC 9392 (KLR). 29. Counsel also challenged the trial court’s rejection of the appellant’s defence, yet the appellant testied that he had been arrested from his home on 2nd September 2014 by Hussein and a member of the KPR, rather than at the scene where the animals were allegedly recovered. Further, the appellant had testied that he was a crop farmer who did not own livestock and maintained that he had been falsely implicated due to a longstanding land dispute with Hussein. His co-accused similarly claimed that they had been framed because of personal grudges and vendettas involving prosecution witnesses and they were not found culpable. 30. Counsel argued that the appellant’s defence was plausible, consistent, and capable of raising reasonable doubt when weighed against the contradictory prosecution evidence. He submitted that the trial court failed to properly evaluate his defence, ignored the possibility that a prosecution witness may have been motivated by malice, and eectively shifted the burden of proof onto him. Such an approach, he argued, violated his constitutional right to a fair trial and resulted in an unsafe conviction. 31. In conclusion, counsel urged that the prosecution’s case was not watertight and was riddled with doubts and inconsistencies that undermined its credibility. He argued that the prosecution failed to establish the essential elements of murder to the required standard of proof beyond reasonable doubt. He relied on Nyanjui v Republic (Criminal Appeal 96 of 2021) [2023] KECA 1122 (KLR), where the court held that it is the duty of the prosecution to prove its case against an accused person beyond reasonable doubt and if there is doubt, it must be resolved in favour of the accused. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1856/eng@2026-09-25 6

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32. Learned prosecution counsel Miss Mengo led submissions and a list of authorities both dated 25th August 2025. Counsel noted that the appellant’s appeal is founded on three principal grounds: the trial court relied on contradictory and inconsistent prosecution evidence; the prosecution failed to prove the case beyond reasonable doubt; and the court failed to adequately consider the appellant’s defence. 33. In addressing the rst ground, counsel argued that any inconsistencies in the prosecution evidence were neither material nor prejudicial. The prosecution's evidence showed that those searching for the stolen goats had divided into groups and gone in dierent directions, making it natural for witnesses to have varying accounts of the events. The trial court carefully assessed these discrepancies and found them signicant enough to acquit the rst four accused persons. However, the evidence against the appellant remained consistent, particularly the testimony of PW4 and PW5, who stated that the appellant was found with some of the stolen goats together with two other individuals before escaping and later being arrested on 2nd September 2014. Counsel relied on the decision in Joseph Maina Mwangi v Republic, Criminal Appeal No. 73 of 1993, to argue that not every discrepancy in evidence is fatal and that only contradictions that prejudice an accused person should aect a conviction. 34. Regarding the second ground of appeal, counsel cited Anthony Ndegwa Ngari v Republic [2014] KECA 424 (KLR) and submitted that the prosecution proved all the ingredients of the oence of murder; proof of the deceased’s death, proof that the accused committed the unlawful act causing death, and proof of malice aforethought. He urged further that although there was no eyewitness to the murder, the conviction was properly based on circumstantial evidence. Counsel relied on Republic vs Taylor Weaver & Donovan [1928] 21 Criminal Appeal CA 20, PON v Republic [2019] KECA 650 (KLR) and Mwangi & Another v Republic [2004] 2 KLR 32, and emphasized that circumstantial evidence can be as strong and reliable as direct evidence when it forms a complete chain pointing exclusively to the guilt of the accused. 35. Counsel submitted further that the prosecution’s case established that the deceased was tending goats when he was killed and that some of those goats were recovered in the appellant’s possession less than a day after the murder. The trial court therefore concluded that the appellant’s recent possession of the stolen goats irresistibly linked him to the robbery and killing of the deceased. According to counsel, this evidence formed a complete chain that could not reasonably be explained on any hypothesis other than the appellant’s guilt. 36. On the third ground, counsel contended that the trial court fully considered and correctly rejected the appellant’s defence. The appellant had claimed that the case was fabricated because he had previously acted as a police informer and had reported PW4 and PW5 for possessing illegal rearms. He denied involvement in the oence but admitted being arrested on 2nd September 2014 and stated that he did not own livestock; instead, he reared chickens and rabbits. Counsel argued that the trial court properly evaluated this explanation and found it unconvincing. The court observed that the appellant had not cross-examined PW4 and PW5 regarding the alleged grudge and therefore treated the allegation as an afterthought lacking evidential support. In light of the strong prosecution evidence, particularly the recovery of the stolen goats from the appellant shortly after the deceased’s death, the court inferred that he was responsible for the murder and dismissed his defence as incredible and unsubstantiated. 37. Counsel further argues that the sentence of twenty-ve years’ imprisonment was appropriate and proportionate to the gravity of the oence. Consequently, this Court is urged to dismiss the appeal in its entirety and uphold both the conviction and sentence imposed by the trial court. 38. We have considered the record of appeal, the rival submissions by counsel, case law cited and the law and are of the view that the following issues arise for determination: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1856/eng@2026-09-25 7

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39. i. Whether the prosecution proved its case beyond reasonable doubt despite contradictions and inconsistencies. ii. Whether circumstantial evidence and the doctrine of recent possession were properly invoked. iii. Whether appellant’s defence was plausible. This Court has stated in a number of its decisions that not every inconsistency or contradiction in the prosecution case will vitiate a conviction. In Watu v Republic (Criminal Appeal 29 of 2015) [2016] KECA 696 (KLR), the Court held that: “ The rst question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satised of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self- contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, diering fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satised beyond reasonable doubt. However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.” (Emphasis ours) 40. The evidence on record demonstrates that the search party had split into dierent groups and approached the recovery site from two directions. It is therefore unsurprising that witnesses gave varying accounts regarding the precise circumstances under which the suspects were encountered; not all saw the appellant and may have narrated what they heard from others (hearsay). 41. The key witnesses who saw and recognized the appellant were PW4 and PW5 who both testied that they saw the appellant among the persons guarding the stolen animals the day after the incident before he escaped. Both witnesses knew the appellant previously, thereby eliminating any possibility of mistaken identity. PW4 knew him well as they lived in the same village. They also testied that the appellant did not go to his house as a search there was in vain. He was arrested on 2nd of September 2014, several days later in a bush near the GSU Camp. 42. The learned trial Judge carefully evaluated the discrepancies and indeed found them signicant enough to acquit the rst four accused persons. However, the court correctly distinguished the appellant’s case because the evidence placing him at the recovery scene remained direct, consistent, and mutually corroborative. We therefore nd no merit in the complaint that the conviction was founded on contradictory evidence. 43. It is correct that there is no direct evidence pointing at the appellant as the perpetrator of the murder. The prosecution solely relied on circumstantial evidence and the doctrine of recent possession. In Munge v Republic (Criminal Appeal 55 of 2022) [2022] KECA 1377 (KLR), this Court referred to https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1856/eng@2026-09-25 8

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the case of Abanga alias Onyango v Republic CR. A No. 32 of 1990 (UR), it was Court held that before drawing an inference of guilt from circumstantial evidence, the court must be satised that: a. the circumstances from which an inference of guilt is sought to be drawn are cogently and rmly established; b. those circumstances should be of a denite tendency unerringly pointing towards the guilt of the accused; and c. the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else 44. The prosecution’s case established that the deceased was brutally killed while herding livestock, and a portion of the stolen animal comprising 35 goats and 3 sheep were recovered less than twenty-four hours later. The appellant was positively identied by PW4 and PW5 at the exact location where these stolen animals were found, directly linking him to the stolen property before he ed into the bush. The animals were positively identied by the owners at the police station. In Erick Odhiambo Okumu v Republic [2015] KECA 714 (KLR) this Court reiterated that it has long been accepted that the guilt of an accused person does not have to be proved by direct evidence alone. Circumstantial evidence, namely evidence that enables a court to deduce a particular fact from circumstances or facts that have been proved, can form as strong a basis for establishing the guilt of an accused person as direct evidence. 45. Under the doctrine of recent possession, where an accused person is found in possession of property recently stolen during the commission of oence, and fails to oer a reasonable or plausible explanation, a court is entitled to infer that the possessor either took part in the theft or participated in the violent act itself. This Court in Abdi Yusuf Maalim v Republic [2015] KECA 141 (KLR) held that: The doctrine of recent possession is of course applicable in cases of robbery with violence, manslaughter, murder, among other charges, see Stephen Njenga Mukiria & Another V R Nkr Criminal Appeal no. 175/2003, wherein it was also determined that before relying on the recent possession doctrine, possession must be positively proved, that is to say that the recently stolen property was found with the suspect; the ownership of the property by the complainant must be proved and nally that there must be evidence that the property was recently stolen.” 46. The appellant’s conduct of taking ight and not being at his home for a number of days is suspect, especially taken commutatively with the prosecution’s evidence implicating him. It has been held that the conduct of an accused person before, during and after the commission of an oence is a relevant circumstance from which guilt may be inferred. 47. The Evidence Act, section 8(2) states that; The conduct of any party… to any suit or proceeding, in reference to such suit or proceeding or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an oence against whom is the subject of any proceeding, is relevant, if such conduct inuences or is inuenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. 48. The exceptionally brief interval between the murder of the deceased, the loss and the recovery of the livestock from the appellant and his accomplices who remain at large creates an unbroken chain of circumstantial evidence. This timeline excludes any reasonable hypothesis consistent with the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1856/eng@2026-09-25 9

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appellant's innocence. We are therefore satised that the circumstantial evidence, fortied by the doctrine of recent possession, and the appellant’s conduct suciently proved the appellant’s guilt beyond reasonable doubt. 49. The appellant oered sworn testimony stating that he was a crop farmer who did not own livestock and asserted that he was falsely implicated due to a grudge over his past activities as a police informant. He maintained that he was lured into an ambush and arrested on 2nd September 2014. 50. While the burden of proof in criminal proceedings rests squarely on the prosecution and never shifts to the accused, any defence raised must be weighed against the totality of the evidence. As the learned trial Judge rightly observed, the appellant failed to cross-examine PW4 and PW5 regarding the alleged grudge or the claims of illegal rearm reports. By failing to confront the key witnesses with these serious allegations during the trial, the defence was properly characterized as an unsubstantiated afterthought lacking any evidential foundation. In Stephen Nguli Mulili v Republic [2014] KECA 408 (KLR), this Court stated that a trial court must consider the defence but is entitled to reject it if it does not raise reasonable doubt. The Court held that: “ From the facts on record it appears that the prosecution made a strong and watertight case against the appellant. The evidence of the prosecution witnesses corroborate each other and form a clear and logical sequence of events establishing the appellant’s guilt.” 51. When juxtaposed with the independent, corroborative testimonies of the search and tracking parties who placed him at the scene of the recovered livestock, the appellant's defence fails to raise any reasonable doubt. We nd that the trial Judge properly evaluated and correctly rejected the defence. 52. The nal issue is whether the appellant's conviction for the oence of murder was safe. The medical evidence tendered by PW11 established that the deceased died from severe head and chest trauma caused by crash injuries, demonstrating an unmistakable intent to cause death or grievous bodily harm. Having established that the contradictions raised by the defence were immaterial, that the circumstantial evidence and the doctrine of recent possession irresistibly pointed to the appellant, and that his defence was untenable, we are satised that all the ingredients of the oence were proved to the required standard. 53. Sentencing is a matter of discretion. This Court will only interfere where the trial court acted on wrong principles, ignored relevant factors, considered irrelevant factors, or where the sentence is manifestly excessive as stated in Silas Mwiti Gikunda v Republic [2007] KECA 307 (KLR). Further, this Court has consistently held that sentencing must be individualized and proportionate to the oence and circumstances. 54. Accordingly, we hold that the appellant’s conviction was safe and the sentence of 25 years’ imprisonment was lawful, appropriate, and proportionate to the gravity of the oence. 55. For the reasons stated above, we nd that this appeal is devoid of merit and it is hereby dismissed in its entirety. DATED AND DELIVERED AT NYERI THIS 25TH DAY OF SEPTEMBER, 2026. K. M’INOTI ……………………………… JUDGE OF APPEAL ALI-ARONI https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1856/eng@2026-09-25 10

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……………………………… JUDGE OF APPEAL M. GACHOKA, C.Arb, FCIArb ……………………………… JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1856/eng@2026-09-25 11

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