Benjamin Ndambu Suku v Republic

The Court adopted the Tuwamoi test as reiterated with approval in Bakari Omari and John Martha Komora v Republic, and the re-emphasis in Joseph Njaramba v Republic that a retracted and repudiated confession requires independent independent corroboration. Both lower courts had found the conviction rested on circumstantial evidence plus the repudiated statements (Exhibits 3 and 4), admitted after trials within a trial. Corroboration was found in the appellant's conduct: though left alone with the deceased, he vanished from the house, was not at his Nairobi residence, and was arrested only about six months later at his rural Kitui home.

The Court noted that the first appellate court was 'alive to' the alibi and expressly stated the correct legal position: an accused putting forward an alibi does not thereby assume the burden of proving it, and it suffices if the alibi introduces a reasonable doubt, the burden remaining on the prosecution throughout. The court below had also made findings on the appellant's disappearance from the scene which undermined the alibi. The Court of Appeal therefore held the defence was properly considered and rejected, and found no error in that treatment.

As a second appeal, the Court did not re-hear the evidence but examined whether the courts below had applied the correct principles to the circumstantial evidence, the confession admitted after trials within a trial, and the alibi. It carefully considered the circumstantial evidence implicating the appellant together with his repudiated confession vis-a-vis the alibi, concluded that both courts had adopted the proper approach and come to the right conclusion, and that the conviction was inevitable. No basis for interference having been shown, the appeal was dismissed in its entirety.