Daniel Ondieki Marita v Republic

The appellant allegedly admitted killing the deceased to the assistant chief while in the custody of a crowd of villagers who had apprehended him and summoned the chief to interrogate him publicly. Such circumstances bore the hallmarks of coercion, making it impossible to find the confession voluntary and free of inducement, threat or promise, even if treated as a private confession under section 26.

Both witnesses only obliquely testified that they had heard from unnamed third parties that the appellant was last seen with the deceased. Such untested third-party evidence is inadmissible hearsay incapable of conclusively proving the fact. The doctrine also requires that the interval between the last sighting and recovery of the body be minimal to exclude intervention by another person, which was not demonstrated here.

The court accepted that sections 111 and 119 of the Evidence Act permit a presumption where a body is found in a person's compound without explanation, as stated in Mungai v Republic. However, since the wife and other family members lived in the same compound and the wife was a competent and compellable witness, at least one other person could plausibly have been the author of the death. A co-existing circumstance weakening the inculpatory inference creates reasonable doubt that must benefit the accused.

The court applied the settled principles from Abanga, Sawe, Mwendwa, Wambua, Mugambi and Ketter: the inculpatory facts must be incompatible with innocence and incapable of explanation on any other hypothesis, with no co-existing circumstances weakening the inference. The chain of circumstantial evidence here was broken by the inadmissible confession, the unproved last-seen fact and the shared residence, leaving only suspicion.