Kelvin Masika Wasike v Republic [2019] KECA 539 (KLR)
The bottom line
#Kenya's Court of Appeal quashed a murder conviction because circumstantial evidence didn't conclusively point to the accused, freeing him after years on death row.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether, considering all the evidence adduced before the trial court, the elements of the charge of murder against the appellant were proved to the required standard
- 2.Whether the appellant's defence (including his alibi) was properly considered by the trial court
- 3.Whether the circumstantial evidence adduced pointed irresistibly to the appellant to the exclusion of all others
Key legal issues
#Adequacy of circumstantial evidence to sustain a murder conviction
The circumstantial evidence did not satisfy the Abanga tests; it did not point irresistibly to the appellant to the exclusion of all others, and the conviction was unsafe.
The trial judge, though recognising an element of doubt, did not apply the three-part Abanga test. Contradictions between Erick and Caroline's evidence, the fact that Erick was himself a suspect with a motive to discipline the deceased, the uncorroborated accomplice evidence of Erick, and the prosecution's failure to call Bob Wanjoya meant the chain of circumstances was incomplete. Where two persons could have committed the offence, the inference of guilt against one alone cannot be drawn irresistibly.
Duty of a first appellate court
As a first appeal court, the Court of Appeal must reconsider and evaluate the evidence afresh, allowing for the trial court's advantage in assessing demeanour.
The Court restated the settled duty on first appeal, drawing on Okeno v Republic and Muthoka v Republic, and applied it by independently analysing the prosecution evidence and contradictions before reaching its own conclusion on the safety of the conviction.
Admissibility of improperly obtained admissions
Admissions not obtained in accordance with the Evidence Act are improperly obtained and must not be acted upon or admitted.
PC Khisa recorded no properly obtained cautioned statements from either suspect; the oral accounts implicating the appellant were therefore improperly obtained admissions. The Court treated them as inadmissible and relied instead on its independent evaluation of the circumstantial evidence.
Legal principles established
#- Where a case rests entirely on circumstantial evidence, the three Abanga tests must be satisfied before a conviction can be sustained
- An adverse inference may be drawn against the prosecution for failure to call a material witness whose evidence would have been adverse to the prosecution case
- Admissions or statements not obtained in accordance with the Evidence Act ought not to be acted upon or admitted in evidence
Court orders
#- 1.Appeal allowed
- 2.Conviction for murder quashed
- 3.Sentence of death set aside
- 4.Appellant to be set free forthwith unless otherwise lawfully held
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Bungoma
- HCCRA No. 21 of 2007
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court exercising original criminal jurisdiction (section on appeals to the Court of Appeal; judgment rendered pursuant to the Court's duty on a first appeal)
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.
Accordingly, we allow this appeal quash the appellant’s conviction and set aside the sentence imposed upon him. The appellant shall be set free forthwith unless otherwise lawfully held.
It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (iii) 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 none else.
In light of the above it cannot be said that the inculpatory facts pointed irresistibly to the appellant and no one else, or that they formed a complete chain from which a conclusion can be drawn that the crime was committed by the appellant and no one else.
In the circumstances of this case, an adverse inference must be drawn from the prosecution’s failure to call Bob Wanjoya as a witness, that his evidence would have been adverse to the prosecution case.
Issues in the judgment
#The judgment inconsistently spells the medical officer's name as 'Dr. Isaac Obore Omeri' and later 'Dr Omieri'; also the respondent's counsel appears as 'Mr. Tumaini Wafula' while the appeal was argued on written submissions by the DPP.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kelvin Masika Wasike v Republic [2019] KECA 539 (KLR)", Case Analysis (2019). Criminal Appeal No. 198 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/539/eng@2019-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.