Kombe v Republic (Criminal Appeal E090 of 2023) [2025] KECA 2073 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a murder conviction based on circumstantial evidence, confirming that being last seen with the deceased and selling his phone can prove guilt.
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 circumstantial evidence adduced by the prosecution met the necessary threshold to sustain the conviction of the appellant for the offence of murder
- 2.Whether the prosecution proved the cause of death and production of the post-mortem report by the Investigating Officer
- 3.Whether the 'last seen with' doctrine and recent possession of the deceased's items supported the conviction
- 4.Whether malice aforethought was established
- 5.Whether the sentence of 35 years' imprisonment was lawful and reasonable
Key legal issues
#Sufficiency of circumstantial evidence for murder conviction
The chain of circumstances - last seen with the deceased, possession of his items, failure to surrender and sale of his phone, and unsatisfactory explanations - pointed beyond reasonable doubt to the appellant's guilt
The court applied the Abanga three-part test and Sawe principles. The appellant was last seen with the deceased, was found with his working tools and phone, returned some items but sold the phone while the family searched for the deceased, and offered explanations the court found unsatisfactory. His actions were held to infer knowledge that the deceased would not return, completing the chain of evidence.
Cause of death and production of the post-mortem report
The post-mortem report was properly produced under section 77 of the Evidence Act; the appellant did not object or seek to summon the medical officer, and the report indicated asphyxia
Section 77 of the Evidence Act permits reports by medical practitioners to be used in evidence without the maker testifying, with the court able but not obliged to summon the maker. The appellant neither objected to production nor requested summoning of the Medical Officer, and the report clearly stated the cause of death as asphyxia.
Malice aforethought
Strangulation and throwing the body into the ocean evidenced an intention to cause death or grievous harm
The court agreed with the trial judge that the manner of killing - strangulation causing asphyxia - combined with disposal of the body in the ocean, demonstrated malice aforethought as required under sections 203 and 206 of the Penal Code.
Sentence
The 35-year sentence was lawful and reasonable given the circumstances of the death
Murder attracts the death penalty under section 204 of the Penal Code. The trial judge considered the Muruatetu mitigation principles. Given the circumstances of the deceased's death, the appellate court found the discretionary 35-year sentence neither unlawful nor excessive.
Duty of a first appellate court
A first appellate court must re-examine and re-evaluate the evidence afresh and draw its own conclusions, making allowance for the trial court's advantage of seeing the witnesses
Relying on Okeno v Republic, the court restated that a first appeal is by way of retrial: the evidence as a whole must be submitted to fresh and exhaustive examination, the appellate court must weigh conflicting evidence and draw its own conclusions before deciding whether the lower court's findings should be supported.
Legal principles established
#- Where a case rests entirely on circumstantial evidence, the circumstances must be cogently established, point unerringly to guilt, and form a complete chain excluding any other conclusion
- The burden of proving facts justifying an inference of guilt from circumstantial evidence remains with the prosecution and never shifts
- Under the 'last seen with' doctrine, where the deceased was last seen with the accused, the accused bears a duty to explain how the deceased met death, failing which an inference of guilt may be drawn
- The doctrine of recent possession applies only to the offence of robbery and cannot be invoked to found a murder conviction; possession of the deceased's items may only corroborate other circumstances
Court orders
#- 1.The appeal against both the conviction for murder and the sentence of 35 years imprisonment is dismissed in its entirety
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Malindi
- Criminal Case No. 22 of 2018
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (2022); appellate jurisdiction over High Court criminal convictions
Relief refused
#Appeal against conviction for murder
Circumstantial evidence sufficiently pointed to the appellant's culpability and his defence raised no doubt
Appeal against sentence of 35 years' imprisonment
Sentence was lawful and reasonable; trial judge considered Muruatetu mitigation principles
Costs
No costs order stated 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.
It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests
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 doctrine of recent possession only applies to the ofience of robbery, and in the present appeal, the evidence of possession of the deceased items served the purpose of corroborating “the last seen with” doctrine
the act of strangulation, which is the main cause of asphyxia, and of throwing a body to the ocean in itself point to an intention to cause death or grievous harm to a person with malice aforethought
Consequently, we find that the appellant’s appeal against the both the conviction for murder and sentence of 35 years imprisonment not to be merited and it is hereby dismissed in its entirety.
Issues in the judgment
#The judgment repeatedly dates the key events as 16th, 17th and 18th December 2018, while the opening paragraphs and charge particulars state the murder occurred on 16th November 2018 - an internal inconsistency between 'November' and 'December'
The appellant is described as admitting he was with the deceased on '16th December 2018', again conflicting with the November date in the charge
The judgment records a three-judge bench but the signature block names only two judges, with a note explaining the third judge died before delivery
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kombe v Republic (Criminal Appeal E090 of 2023) [2025] KECA 2073 (KLR)", Case Analysis (2025). Criminal Appeal (from Criminal Case No. 22 of 2018, High Court Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2073/eng@2025-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.