Wanjohi & another v Republic (Criminal Appeal 81 of 2016) [2020] KECA 482 (KLR)
The bottom line
#Kenya's Court of Appeal freed two men convicted of murder, ruling that hearsay and suspicion cannot substitute for proof beyond reasonable doubt.
What this practically means
#Executive summary
#Key legal issues
#Admissibility and weight of hearsay evidence in a circumstantial case
What the star witness relayed about the recovery of the motorcycle and the arrest of the appellants was hearsay and inadmissible; without it there was no evidence, direct or circumstantial, on which to found a conviction.
Gladys Njeri did not witness the recovery of the motorcycle, the arrest, or the discovery of the body; she testified only to what Waweru, Maritim and Mwangi told her. Statements of persons not called as witnesses, offered to prove the truth of their contents, are inadmissible hearsay and highly prejudicial. The trial court erred in admitting them, and removing them left the prosecution case built on mere suspicion.
Duty to call material witnesses
Though no particular number of witnesses is required, the prosecution must make available all witnesses necessary to establish the truth; unexplained failure to call the only three eyewitnesses should have led the trial judge to infer their evidence was adverse to the prosecution.
Section 143 of the Evidence Act removes a numerical requirement, but the prosecution must call witnesses necessary to establish the truth. The court has power and duty to call essential witnesses. Here three alleged eyewitnesses existed and none testified; without explanation, the trial court ought to have concluded either that they did not exist or that their evidence would have been adverse to the prosecution.
Co-existing circumstances destroying the inference of guilt
Multiple intervening factors - an unfenced, unfarmed thoroughfare near a public road, an unsecured motorcycle, Mungiki threats against boda boda operators, an attempted robbery three days earlier, no ignition key, and the body's discovery three hours after arrest - destroyed any inference of guilt.
The circumstantial chain was not unbroken: the farm was unfenced and a thoroughfare; the area was crime-prone with Mungiki extorting boda boda operators; there had been an attempted robbery on the same farm days earlier; the body surfaced nearly three hours after the police had collected the motorcycle and appellants from the same spot; and the appellants had no ignition key. These factors weakened and destroyed the inference of guilt, and the conviction rested on mere suspicion.
Burden and standard of proof
An accused is presumed innocent unless the prosecution proves guilt beyond reasonable doubt; the threshold was not met here.
The court reaffirmed that the burden lies throughout on the prosecution to prove guilt beyond all reasonable doubt. Evaluating the evidence afresh, the court found the trial judge misapprehended the prosecution case, which was built on suspicion rather than on circumstances irresistibly pointing to guilt, and therefore arrived at a wrong conclusion warranting reversal of both conviction and sentence.
Legal principles established
#- A conviction on circumstantial evidence is permissible only where the evidence unerringly and irresistibly points to the guilt of the accused and there are no co-existing circumstances weakening or destroying that inference.
- Evidence of what an uncalled witness said to the testifying witness, offered for the truth of its contents, is inadmissible hearsay and must be rejected.
- Where the prosecution fails, without explanation, to call witnesses essential to its case, the court may infer their evidence would have been adverse to the prosecution.
- A first appellate court must evaluate the evidence afresh and reach its own independent conclusion, making allowance for the trial court's advantage of seeing and hearing the witnesses.
Court orders
#- 1.Appeal allowed
- 2.Conviction of the appellants for murder quashed
- 3.Death sentence set aside
- 4.Appellants to be set free forthwith unless otherwise lawfully held
- On appeal from
- High Court at Nairobi
- H.C.CR.C No. 11 of 2010
- Jurisdiction invoked
- First appellate jurisdiction over an appeal from the High Court on conviction and sentence (Court of Appeal's appellate criminal jurisdiction under the Constitution and the Court of Appeal Act; appeal as of right against conviction and death sentence for murder)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Omambia & 2 others v Republic (Criminal Appeal 99 of 2020) [2026] KECA 966 (KLR)[2026] KECA 966 (KLR)15 May 2026followed
Cite this brief
#Cite this brief
Caselaw, "Wanjohi & another v Republic (Criminal Appeal 81 of 2016) [2020] KECA 482 (KLR)", Case Analysis (2020). Criminal Appeal No. 81 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/482/eng@2020-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.