Musyoka v Republic (Criminal Appeal 76 of 2022) [2025] KECA 1318 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a murder conviction based on a dying declaration and DNA evidence, but cut the sentence by three and a half years spent in remand custody.
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 dying declaration of the deceased was admissible in the context of the competency of the declarant and the person who reported
- 2.whether the statement of the dying declaration was corroborated
- 3.whether the offence of murder was proved to the required standard
- 4.whether the sentence was lawful
Key legal issues
#Competency of the child declarant and necessity of voire dire examination
The trial court properly conducted a voire dire examination of PW4 and satisfied itself of his intelligence and understanding of the oath; the competency challenge fails.
Section 19(1) of the Oaths and Statutory Declarations Act permits the evidence of a child of tender years who does not understand the oath to be received unsworn if the court is satisfied of sufficient intelligence and understanding of the duty to speak the truth. Johnson Nyoike Muiruri sets out that the court must record the terms of its satisfaction. Here Chitembwe, J. conducted the examination on 5th December 2016 and recorded his satisfaction, so the duty was discharged.
Admissibility and corroboration of a dying declaration
A dying declaration is admissible under Section 33(a) of the Evidence Act regardless of expectation of death or competency of the declarant had he lived; corroboration is desirable but not mandatory, though extreme caution is required.
The declaration of the deceased naming the appellant as his attacker met the elements: made by the deceased, referring to the accused, and relating to the cause of death. There is no rule requiring that a declarant be alive, nor that corroboration be mandatory. Courts are cautious because the statement is not subject to cross-examination, but here it was corroborated by PW6's evidence and the DNA match on the panga and the appellant's shorts.
Proof of the perpetrator through circumstantial evidence
Even absent the dying declaration, the circumstantial evidence - the appellant's disappearance from the farm, flight after the incident, and the DNA match linking him to the weapon and the deceased's blood - excludes every reasonable inference other than guilt.
Applying the Abanga and Sawe principles, the incriminating circumstances must be incompatible with innocence and incapable of explanation on any other reasonable hypothesis. The appellant was last seen with the deceased at the farm, could not be found when his grandfather returned, was arrested in hiding, and the forensic DNA analysis on the panga and his green shorts matched the deceased's blood. The chain of circumstances was complete and unbroken.
Malice aforethought
Malice aforethought was established: the appellant inflicted a deep panga cut to the occipital region exposing brain matter, targeting a vital organ, intending to cause death or grievous harm within Section 206 of the Penal Code.
Section 206 deems malice aforethought established by proof of intention to cause death or grievous harm, or knowledge that the act will probably cause death or grievous harm. The nature of the weapon, the force used, the targeting of the head, and the appellant's failure to assist the deceased after the attack all support the inference of the requisite intention, consistent with Nzuki, Hyam and Joseph Kimani Njau.
Lawfulness of sentence and deduction of time spent in custody
The 30-year sentence was lawful and proportional, but the trial court erred in not deducting the 3 years and 6 months spent in remand custody, which is a substantive right under Section 333(2) of the Criminal Procedure Code.
The Supreme Court in Republic v Mwangi (ISLA) affirmed that the period spent in remand custody prior to conclusion of trial must be factored into sentencing. The appellant was arrested on 19th September 2016 and sentenced on 11th March 2022, remaining in remand throughout. The sentence is upheld but varied to deduct that period from the 30-year term.
Legal principles established
#- A trial court must conduct a voire dire examination where a child of tender years is called as a witness, and record the terms in which it was satisfied the child understood the nature of the oath; the trial court here discharged that duty, and unsworn testimony admitted after a proper voire dire satisfies Section 19(1) of the Oaths and Statutory Declarations Act.
- A dying declaration under Section 33(a) of the Evidence Act is admissible whether or not the declarant was under expectation of death, and it is not mandatory that it be corroborated; however, courts must exercise extreme caution in assessing the weight to be attached to it, and corroboration is desirable though not always necessary.
- Where a case rests entirely on circumstantial evidence, the circumstances must be cogently and firmly established, be of a definite tendency unerringly pointing towards guilt, and form a chain so complete that there is no escape from the conclusion that the accused committed the crime and no one else.
- Running away from the crime scene and going into hiding is conduct inconsistent with innocence and may found the inference of guilt on circumstantial evidence.
- A trial court is obliged, under Section 333(2) of the Criminal Procedure Code, to take into account the period an accused spent in remand custody prior to sentencing; this is a substantive right of the accused, and appellate courts will deduct unaccounted-for remand periods from the sentence.
- The duty of a first appellate court is to reconsider, re-evaluate and re-analyse the evidence afresh and draw its own conclusions, while making due allowance for the fact that it neither saw nor heard the witnesses.
Court orders
#- 1.The appeal is dismissed
- 2.The conviction is upheld
- 3.The sentence of 30 years imprisonment is upheld, save that the 3 years and 6 months spent in custody prior to sentencing shall be deducted from the 30-year term
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Malindi
- Murder trial before Nyakundi, J. (judgment dated 11th March 2022 per paragraph 71, though recorded elsewhere as 2020)
- Jurisdiction invoked
- First appellate jurisdiction over a conviction and sentence on a charge of murder under Section 203 as read with Section 204 of the Penal Code, per the Court of Appeal's supervisory review of the High Court judgment
Relief refused
#Quashing of the conviction and setting the appellant at liberty
The prosecution proved the offence beyond reasonable doubt through the dying declaration, circumstantial evidence and DNA analysis; the conviction was based on sound evidence
Setting aside the 30-year sentence and substitution with a non-custodial/probationary sentence
The extenuating circumstances, particularly the brutal murder of an 8-year-old by his 22-year-old brother, weighed against a non-custodial sentence; the sentence must be proportional and serve deterrence, retribution and denunciation
Costs
No costs order 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.
In the end, we find that the appeal fails and is hereby dismissed. We uphold both the conviction and sentence as pronounced the Judgment of the High Court at Malindi (Nyakundi, J.) dated 11th March 2020 save that the 3 years and 6 months which the appellant spent in custody prior to being sentenced shall be deducted from the 30-year term of imprisonment.
Whereas there is no standing rule on the need for corroboration of a dying declaration, extreme caution must be taken in assessing the weight to be attached to a dying declaration.
Such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
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 no one else.
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 remain with the prosecution. It is a burden which never shift to the party accused.
the trial court is obligated to deduct the period spent in custody from the total sentence. The Court emphasized that the requirement is not merely a procedural formality, but a substantive right of the accused so as to ensure that the punishment is fair and just.
Issues in the judgment
#The judgment states the sentence date inconsistently: paragraph 70 says the appellant was sentenced on 11th March 2022, while paragraph 71 refers to the judgment of the High Court dated 11th March 2020.
The period in remand custody is described as 4 years in the appellant's submission, but the court computes it as 3 years and 6 months (arrest 19th September 2016, sentenced 11th March 2022, which would be approximately 5 years and 6 months).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musyoka v Republic (Criminal Appeal 76 of 2022) [2025] KECA 1318 (KLR)", Case Analysis (2025). Criminal Appeal (undated memorandum of appeal, first appeal from High Court at Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1318/eng@2025-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.