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Court of AppealPartially AllowedCriminal Appeal (not numbered in judgment as supplied)

Makokha v Republic (Criminal Appeal 16 of 2019) [2024] KECA 1582 (KLR)

Court of Appeal of Kenya
8 November 2024
6,210 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~25 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal upheld a murder conviction based on circumstantial 'last seen with' evidence but replaced the death sentence with 30 years' imprisonment.

What this practically means

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Executive summary

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The appellant was convicted by the High Court of the murder of a five-year-old child contrary to Section 203 of the Penal Code and sentenced to death. The evidence against him was wholly circumstantial: a neighbour saw him riding his motorcycle with the deceased as a pillion passenger on the day she disappeared; her body, bearing a head injury and wrapped in a sack, was later recovered from a well; and witnesses testified that he resented the deceased, the child of his partner Cherono, who was in custody at the material time. Before the Court of Appeal, the appellant challenged the reliance on uncorroborated single-witness and circumstantial evidence, the proof of malice aforethought, alleged violations of his constitutional rights, and the constitutionality of the death sentence. The Court re-evaluated the evidence as a first appellate court, applied the circumstantial evidence principles in Koskei and Musoke and the 'last seen with' doctrine, and held that under the proviso to section 111(1) of the Evidence Act the burden shifted to the appellant to explain the deceased's fate, which he failed to do. It found corroboration of the single identifying witness desirable but not mandatory under section 143 of the Evidence Act, rejected the constitutional violations claim as unparticularised, and inferred malice aforethought under section 206 of the Penal Code. The appeal against conviction was dismissed. Relying on Muruatetu, the Court set aside the death sentence and substituted thirty years' imprisonment, computed from January 21, 2015 under section 333(2) of the Criminal Procedure Code.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the death of the deceased was proved
  2. 2.Whether the death was caused by an unlawful act or omission of the appellant
  3. 3.Whether malice aforethought was proved
  4. 4.Whether the appellant's conviction on uncorroborated evidence of a single witness was proper
  5. 5.Whether the circumstantial evidence and the 'last seen with' doctrine supported the conviction
  6. 6.Whether the appellant's constitutional rights were violated during the trial
  7. 7.Whether the mandatory death sentence should be revisited

Key legal issues

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01

Elements of murder

Holding

Murder requires proof of death, that death was caused by an unlawful act or omission of the accused, and malice aforethought

Reasoning

The court restated the three elements from Section 203 of the Penal Code: proof of the death of the deceased, proof that it was caused by the accused's unlawful act or omission, and proof of malice aforethought. The fact of death was not substantially disputed; the dispute centred on causation and intent.

p. 5
02

Circumstantial evidence and last seen with doctrine

Holding

A conviction may rest on circumstantial evidence where the inculpatory facts are incompatible with innocence and the accused fails to explain what befell the deceased while in his company

Reasoning

The court applied the Koskei and Musoke principles and the three-test formulation, holding the chain complete: the appellant was last seen carrying the deceased, the body showed a fatal head injury, and he offered no explanation for the intervening period. The burden under section 111(1) of the Evidence Act shifted to him. Malice aforethought was inferred under section 206.

p. 10
03

Single witness and corroboration

Holding

Evidence of a single identifying witness is sufficient absent a statutory corroboration requirement

Reasoning

Relying on section 143 of the Evidence Act, the court held that corroboration of Erick's evidence, though desirable, was not mandatory. The trial judge who assessed demeanour believed the witness and the appellate court had no reason to doubt his credibility.

p. 9
04

Sentence

Holding

Following Muruatetu, the mandatory death sentence is unconstitutional; a determinate sentence may be substituted and computed under section 333(2) CPC from the date custody began

Reasoning

The appellant offered no mitigation and the trial judge had regarded death as the only available punishment. In the spirit of Muruatetu, the Court set aside the death sentence, substituted thirty years' imprisonment as a deterrent for the heinous killing of a child, and directed computation from January 21, 2015.

p. 11

Legal principles established

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  • The duty of a first appellate court is to analyse and re-evaluate the evidence afresh and reach its own conclusions, not merely to scrutinise the trial court's findings
  • Corroboration of a single witness's evidence is desirable but not mandatory; no particular number of witnesses is required to prove any fact
  • Under the 'last seen with' doctrine, where the accused was last seen with the deceased, the accused bears a duty to explain how the deceased met their death, failing which an inference of guilt may be drawn
  • Under the proviso to section 111(1) of the Evidence Act, special knowledge of facts shifts the burden of explanation to the accused

Court orders

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  1. 1.Appeal against conviction dismissed; conviction upheld
  2. 2.Death sentence set aside and substituted with thirty (30) years imprisonment
  3. 3.Sentence computed from January 21, 2015 under section 333(2) of the Criminal Procedure Code

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya
null
Jurisdiction invoked
Section 379(1) of the Criminal Procedure Code

Relief refused

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Appeal against conviction

Circumstantial evidence and the last seen with doctrine established the appellant's guilt; no violation of rights shown

p. 10

Complaint of constitutional rights violations

Appellant did not identify any specific right violated

p. 10

Costs

No order as to costs was made in the judgment as supplied.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot of the above is that the appeal against conviction is dismissed, and the appeal against sentence is allowed to the limited extent of substituting the death sentence with a term sentence of thirty (30) years imprisonment.
p. 11Disposition
By dint of section 333(2) of the Criminal Procedure Code, the same shall be computed from January 21, 2015 as the appellant has been in custody since that day.
p. 11Sentence computation
We are satisfied that the appellant was established to have been the person last seen with the deceased prior to the deceased's death and that the deceased was dressed in her school uniform.
p. 10Last seen with doctrine
To base a conviction entirely or substantially upon circumstantial evidence, it is necessary that guilt of the suspect should not only be rational inference but also it should be the only rational inference that could be drawn from the circumstances.
p. 6Standard for circumstantial evidence

Issues in the judgment

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minor

Minor date inconsistency in the High Court extract: it states the accused met Erick on 30.5.2012 who told him the child was lost on 31.5.2012, whereas Erick testified the meeting was on 29th May 2012, the day of the disappearance

minor

Minor inconsistency in identifying the witness who first found the deceased missing: paragraph 3 states E informed Linet after failing to find the deceased, while paragraph 35 states the deceased was found missing by Esther

minor

No case number appears in the coram or body of the judgment as supplied

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Makokha v Republic (Criminal Appeal 16 of 2019) [2024] KECA 1582 (KLR)", Case Analysis (2024). Criminal Appeal (not numbered in judgment as supplied). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1582/eng@2024-11-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.