Nyaga v Republic (Criminal Appeal 18 of 2020) [2025] KECA 1280 (KLR)
The bottom line
#Kenya's Court of Appeal freed David Nyaga, ruling that broken circumstantial evidence and shoddy investigations could not sustain a murder conviction.
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 the ingredients of the offence of murder beyond reasonable doubt against the appellant
- 2.Whether the circumstantial evidence adduced was sufficient to sustain the conviction against the appellant
- 3.Whether the sentence was lawful
Key legal issues
#Ingredients of murder
Death was proved, but the court found causation unproven and therefore did not need to consider malice aforethought.
The court accepted that death occurred and was corroborated by the post mortem report. However, since no witness saw the appellant cause the death, and the circumstantial chain was broken, the court stopped at the causation ingredient without addressing malice aforethought.
Sufficiency of circumstantial evidence
The circumstantial evidence did not satisfy the three-pronged Abanga test; the chain was broken because Mbai was never arrested or called as a witness and the distance of the dam from the scene was never established.
PW4, the star witness, was drunk and admitted he never saw the appellant inflict injuries or carry a weapon. Mbai, the last person seen with the deceased, was neither arrested nor called as a witness. The distance of the dam from the scene was not established. The investigation was shoddy and failed to tie up loose ends.
Doctrine of 'last seen'
The doctrine of 'last seen alive' was not properly applicable because the last person seen with the deceased was Mbai, not the appellant.
The doctrine places responsibility on the person last seen with the deceased and requires that person to explain what happened. Since Mbai, not the appellant, was the last person with the deceased, and the prosecution failed to link the appellant to subsequent events, the doctrine did not assist the prosecution.
Shifting the burden of proof / section 111 Evidence Act
The respondent's reliance on section 111(1) of the Evidence Act to submit that the appellant bore a burden to explain the death was rejected.
The court held that the burden of proof remains on the prosecution throughout the trial and never shifts. Invoking section 111(1) to require the appellant to explain how the body came to be in the dam was characterised as desperate and unmerited.
Legal principles established
#- On a first appeal, the appellate court must reconsider and re-evaluate the evidence afresh and reach its own independent determination on the conviction and sentence.
- A conviction on circumstantial evidence can only stand where the circumstances are cogently established, point unerringly to guilt, and form a complete chain excluding any reasonable hypothesis of innocence; the burden never shifts to the accused.
- The prosecution's burden of proving guilt beyond reasonable doubt is sustained throughout the trial and never shifts to the accused by reliance on section 111(1) of the Evidence Act.
Court orders
#- 1.Appeal allowed
- 2.Conviction quashed
- 3.Sentence of 25 years imprisonment 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
- null
- Jurisdiction invoked
- First appeal to the Court of Appeal against conviction and sentence for murder under section 203 as read with section 204 of the Penal Code
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.
In conclusion, we find that this appeal has merit and we allow it. We quash the conviction and set aside the sentence. The appellant shall be set free forthwith unless otherwise lawfully held.
The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remains with the prosecution. It is a burden, which never shifts to the party accused.
The chain between what happened after that and the retrieval of the body in the dam the following day was broken.
It is the epitome of shoddy investigations and a classic example of how the guilty escape the dragnet of justice.
Issues in the judgment
#Internal inconsistency in the evidence dates: PW5 IP Maure Birindu testified that he received the report on 12th June 2016 while the offence is pleaded as having occurred on the night of 11th and 12th June 2015.
The bar is referred to inconsistently as 'Kahuruko Bar' and 'Karuroko bar' within the judgment.
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.
- Nderitu v Republic (Criminal Appeal E005 of 2023) [2026] KECA 339 (KLR)[2026] KECA 339 (KLR)27 Feb 2026
Cite this brief
#Cite this brief
Caselaw, "Nyaga v Republic (Criminal Appeal 18 of 2020) [2025] KECA 1280 (KLR)", Case Analysis (2025). Criminal Appeal (not stated on record). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1280/eng@2025-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.