Furaha v Republic (Criminal Appeal 45 of 2020) [2025] KECA 286 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a murder conviction but cut a 30-year sentence to 20 years because the trial judge never heard mitigation before sentencing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the prosecution proved that the autopsy carried out by PW3 was carried out on the body of the deceased
- 2.Whether motive was proved
- 3.Whether the learned trial Judge erred to rely on the doctrine of 'last seen with'
- 4.Whether the cause of death was conclusive
- 5.Whether circumstantial evidence adduced in this case could found a conviction
- 6.Whether the learned trial Judge considered the relevant factors before passing sentence
- 7.The issue of violation of the appellant's constitutional rights
Key legal issues
#Identity of the body on which the autopsy was conducted
The cumulative evidence established that the child treated for poisoning, who died a day later, was the same child whose autopsy was done by PW3 and whose organs were analysed by PW5.
The issue never arose at trial. On fresh analysis, the clinician PW4 received and treated the deceased and the appellant for poisoning; the investigating officer PW6 delivered the samples personally to the Government Chemist PW5, who confirmed the same pesticide in the organs and in the bottle from the appellant's house. The conclusion was that the autopsy was performed on the deceased.
Proof of motive
Motive was immaterial; the prosecution is not under a duty to prove motive, motive not having arisen at trial and being immaterial under section 9(3) of the Penal Code.
Relying on Karukenya and Libambula, the court held that motive is not material in criminal liability unless expressly declared to be so by the definition of the offence, and that under section 9(3) of the Penal Code motive is immaterial as a criterion to commit a crime.
Reliance on the 'last seen with' doctrine and section 111(1) of the Evidence Act
The trial Judge was not at fault in applying section 111(1); the appellant, having collected the deceased in good health and both being later admitted with pesticide poisoning, bore a statutory burden to explain which he did not discharge.
While the general burden rests on the prosecution beyond reasonable doubt, section 111(1) creates a statutory burden on the accused to prove facts especially within his knowledge. The appellant picked the deceased from PW2, and within ten minutes the child was dying of poisoning; the appellant gave no reasonable explanation of what happened.
Conclusiveness of the cause of death
The Government Chemist's confirmation of pesticide in the organs resolved the pathologist's question mark, concluding that poisoning with pesticide was the cause of death.
The pathologist had posted a question mark against poisoning, but the internal organs were harvested precisely so the chemist could confirm poisoning. PW5 confirmed the pesticide in the liver, kidney and stomach matched that in the bottle recovered from the appellant's house.
Whether circumstantial evidence could found a conviction
The circumstantial evidence satisfied the three-part test in Abanga; there was no broken chain of custody and no failure to call crucial witnesses fatal to the case.
The organs and bottle were recorded in the post mortem report and exhibit memo; PW6 personally handled all exhibits and delivered them to PW5. Though inventories and the exhibit memo were not produced, the single un-delegated custodian of the exhibits meant no broken chain. The uncalled witnesses (bodaboda rider, transporters, body identifiers) would not have added value and the evidence was not barely adequate.
Sentence without a pre-sentence hearing
No mitigation was ever received before sentencing; the sentence procedure offended fair-hearing and procedural laws, justifying interference, and 30 years was harsh in the circumstances.
The record showed judgment and sentence delivered together without adjournment, pre-sentence report or mitigation, contrary to paragraphs 23 and 4.2 of the Sentencing Policy Guidelines and sections 216 and 329 of the Criminal Procedure Code as explained in Muruatetu. The appellant was a 22-year-old first offender; the court substituted 20 years.
Alleged violation of Article 49(1)(f) (delay in arraignment)
The complaint could not be entertained as it was raised for the first time on appeal.
The purpose of an appeal is to consider whether the courts below erred; a court cannot be said to have erred on an issue never argued before it. The complaint of being held from 3rd September 2018 until 2nd October 2018 without arraignment should have been raised at trial.
Legal principles established
#- On a first appeal, the appellate court must subject the evidence to a fresh and exhaustive examination, weigh conflicting evidence and draw its own conclusions, making allowance for the trial court's advantage of seeing and hearing the witnesses.
- Where a case rests entirely on circumstantial evidence, the circumstances must be cogently established, be of a definite tendency unerringly pointing to guilt, and form a chain so complete that there is no escape from the conclusion that the accused committed the crime.
- Section 111(1) of the Evidence Act casts a statutory burden on an accused, including one last seen with the deceased, to explain facts especially within his knowledge.
- Motive is not material in criminal liability unless expressly declared to be so by the definition of the offence.
- A court must conduct a sentencing hearing and receive mitigation before passing sentence; failure to do so offends fair-hearing and procedural law and is a ground for interference with sentence.
- A constitutional complaint raised for the first time on appeal cannot be entertained because an appellate court can only consider issues that were presented before the trial court.
Court orders
#- 1.The appeal against the conviction fails and is dismissed; the judgment of the High Court Criminal Case No 45 of 2020 delivered by R. Nyakundi, J. is upheld
- 2.The appeal against sentence succeeds; the sentence of 30 years imprisonment is set aside and substituted by a sentence of 20 years imprisonment from the date of taking plea on 2nd October 2018
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Criminal Case No 45 of 2020
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Constitution and the Court of Appeal Act (appellate jurisdiction over the High Court in a criminal matter)
Relief refused
#Setting aside the conviction for murder
The circumstantial evidence, the statutory burden under section 111(1) of the Evidence Act, the conclusiveness of the cause of death and the chain of custody all supported the conviction
Damages of Kshs.2 million for violation of Article 49(1)(f) rights (delay in presentation to court)
The constitutional complaint was raised for the first time on appeal and should have been raised at the trial court
Reduction of sentence to the term already served
The court found the appeal against sentence merited only partial interference and substituted 20 years
Costs
No order as to costs was made in the judgment.
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.
The appeal against the conviction fails and is dismissed. The judgment of the High Court Criminal Case No 45 of 2020 delivered by R. Nyakundi, J. dated is upheld.
The appeal against sentence succeeds. The sentence of 30 years imprisonment is set aside, and is substituted by a sentence of 20 years imprisonment from the date of taking plea on the 2nd October 2018.
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.
Section 111 (1) creates a statutory presumption that the appellant having left with the deceased in good health knew what happened to him and the deceased to ingest the pesticide.
There is no doubt that there was no pre-sentence hearing.
We are unable to consider this complaint as it has been raised for the first time on appeal.
Issues in the judgment
#The judgment does not state the Court of Appeal appeal number for this matter.
The final order on conviction refers to the High Court judgment as 'dated' without completing the date, though the date appears earlier in the judgment as 21st April 2020.
The same authority is rendered inconsistently in the judgment as 'Lubambula vs. Republic' and 'Libambula v R.'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Furaha v Republic (Criminal Appeal 45 of 2020) [2025] KECA 286 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/286/eng@2025-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.