Douglas Gitonga Mutembei v Republic

accused, age assessment was Page 2 of 31

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conducted, and it was ascertained that the appellant was 17 years old at the time. The 1st accused was aged 16 years, the 3rd accused, 17 years, and the 4th accused, 18 years. Thus, of the four persons facing the charge, only the 4th accused was an adult. The appellant and his co-accused pleaded not guilty thus setting the stage for trial. 2. The respondent’s case stood on the testimony of eight witnesses. After four prosecution witnesses had been heard, the 1st and 3rd accused jumped bail and absconded court from 16th January 2017 and all efforts to trace them were futile. 3. Edward Kibara Saravi (PW-1) the father of Benson Murathe, the 1st accused, testified that while harvesting green grams together with his wife and children, including the 1st accused, two neighbours walked by at around 11:00am and informed him that some people had indicated that they would pass by with intention to lynch his son, the 1st accused. This shocked him and he opted to take the 1st accused to Makutano Police Station where he would be safe. At the police station, he explained why he had brought his son there. The 1st accused was taken in, locked in the cells, and later charged. Samuel Mulinge (PW2), an in-law to PW1, testified that on 3 rd March 2016, PW1 asked him to accompany him in taking the 1st accused to Makutano Police Station, which he did, and he confirmed that they left the Page 3 of 31

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1st accused at the police station. Page 4 of 31

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4. Mitambo Nkaratu (PW3), testified that on the morning of 29 th February 2016, while on his way to his farm, he saw a body of a person on the side of the road. He went and reported the incident to a village elder, one Nkori Mbori, and returned to the locality with him. It is then that he recognized that the person lying on the ground was his brother’s daughter (the deceased). The deceased was naked waist down and had two injuries, one at the back of the head and the other on the forehead. She was still alive as she was moving her hand but could not talk. There were clothes on the ground including a girl’s panty. They took the deceased to a hospital at Kamacabi and then proceeded to Makutano Police Station. Later, she was taken to Marimanti Hospital by the police where she died. 5. John Njoka (PW-4), the deceased’s father, testified that on 28th February 2016, the deceased failed to report back home after she had taken goats to river Mbuku. He unsuccessfully looked for her until the following day when he found the deceased at Kamacabi Dispensary. She unfortunately died and on 3rd March 2016 he went to Meru General Hospital Mortuary to identify the deceased’s body for post-mortem purposes. 6. PW1, PW2, PW3 and PW4 testified before Mabeya J. PW4 testified on 30 th August 2016, after which the case was adjourned for further hearing. It is after this adjournment that the 1st and 4th accused absconded trial. Limo J Page 5 of 31

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took over the matter from where Mabeya J had left and, in a ruling delivered on 20 June 2018, the learned Judge held that the trial would proceed even in absence of the 1st and 4th accused, and the findings of the court will be binding on them, their absence notwithstanding. 7. Elizabeth Waithera Oyiengo (PW5), a Government Analyst based at the Government Chemist in Nairobi testified that on 17 th March 2016 she received from Police Constable Christopher Mosop of Makutano Police Station, the following items being : 1. Marked A - a panty in khaki envelop indicated as belonging to the deceased; 2. Marked B - a vaginal Swab in a plastic tube; 3. Marked C – soil wrapped on a white paper and indicated as having been collected from the crime scene; 4. Items D, E, F & G in plastic containers, indicated to be pubic hairs belonging to the appellant-Douglas Mutembei Gitonga, the 3rd accused, Simon Mukundi Muturi, the 1st accused-Benson Murathi and the 4th accused -Daniel Gitonga Mwangangi respectively; 8. Additionally, on 4th April 2016, she received 5 items marked M, W, X, Y and Z from I.P Charles Maeke Kyalo of Makutano Police Station as follows: M - in a test tube, a blood sample belonging to the deceased’s mother Elizabeth Gatura; W - in a test tube, a blood sample belonging to the 1st accused Benson Murathi; X - in a test tube, a blood sample belonging to the appellant (as 2nd accused): Y - in a test tube, a blood sample belonging to the 4th accused Daniel Gitonga Mwangangi: Z- in a test tube, a blood sample belonging to the 3rd accused, Simon Mukundi. Page 6 of 31

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9. PW5 prepared and signed the DNA analysis report, which she produced as P. Exhibit 1, with the following results: a) Item A – the panty, was heavily stained with human semen and lightly with human blood. The DNA profile generated from the semen in item A matched the DNA profile generated from the blood sample Y belonging to the 4th accused Daniel Gitonga Mwangangi; b) The DNA profile generated from item M matched the DNA profile generated from the blood stained soil wrapped in white paper (item C) and the DNA generated from the vaginal swab in item B. She concluded that the blood stains on the soil matched the vaginal swab hence from the same person. 10. Susan Mugari Mburi (PW6), a neighbour to the deceased, testified that on the Monday of 29th February 2016 at about 7:00 am, one Kanyangu informed her that there was a body lying on her farm. Together with her husband and the said Kanyagu, they went to the farm where they found the body of a girl lying face down, her clothes pushed up to her shoulders, and naked downwards. On lifting her up, they realised that she was still breathing, and underneath her, buried in a heap of soil, was a panty. She could not recognise the person as her face was mutilated and she was bleeding from 3 cuts on her head, one which was just above her eye. They later recognised the girl as the deceased-Kambura Njoka, and sent someone to fetch her father. The mother of the deceased came and took the deceased on a motorcycle to Kamacabi Dispensary as they followed behind on another motorcycle. She later learnt that the deceased succumbed the Page 7 of 31

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following day while undergoing treatment. Page 8 of 31

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11. Dr. Jacklyne Wendoh Kubai (PW7), a medical Officer at Meru Level 5 Hospital, produced the Post-mortem Report, on behalf of Dr. Paul Ombogo, who prepared it, but was unavailable to testify. Dr. Ombogo found a crushing head injury, ejaculates on the vaginal walls, bruises on the vaginal region, multiple cuts and abrasions on the head, an exposed skull at the occipital region, and massive occipital haematoma. The sperm specimen was taken for analysis. The cause of death was blunt trauma to the head. 12. PW8- Inspector Kyalo Maeke, the Investigating Officer, and Deputy OCS Makutano Police Station, testified that on 29 th February 2016 he received a report that the deceased - a girl aged 16 years- had been assaulted and defiled by unknown persons. The deceased’s father reported that on 28 th February 2016 he had sent his daughter to graze cattle at Thungu village but she never returned home that day. The following day, the deceased was found lying unconscious on Mbuku seasonal river and was taken to hospital. The deceased was then brought to the police and PW8 was present when the report was made. The deceased was in company of PW6 and the village elder who brought a pant recovered besides the deceased. The deceased was taken to Marimanti Hospital. He visited the scene after receiving the report on the same day (29th February 2016) together with one PC Paul Wanderi, a police driver. At the scene, he drew both a rough and Page 9 of 31

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fair sketch of the scene which Page 10 of 31

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sketches he produced as exhibits. The deceased died on 2nd March 2016 after which her body was taken to Meru Level 5 hospital and post-mortem done on 3rd March 2016. On 4th March 2016, the 1st accused was brought to the police station by his father accompanied by a relative. 13. He testified further, that a statement under inquiry was taken from the 1st accused by Inspector Ekirapa, which statement he produced as an exhibit. He testified that in that statement, the 1st accused stated that on 28th February 2016, he had a quarrel with the deceased over Kshs. 100/- which the deceased alleged he had stolen from her father’s house. He stated that the deceased took a stick and started assaulting him; that he took a stone and hit the deceased on the head and she fell down. He then ran and stood about 150m away. He stated that he then saw the appellant, 3 rd and the 4th accused, go to where she lay; that the appellant handed over a panga to the 3rd accused; that the appellant and the 4th accused pulled the deceased up to where the body was found and they defiled her. He said he saw the 3rd accused (Simon) remove her pants and the appellant started having sex with the deceased. 14. There was objection to the production of the statement under inquiry on the basis that it is a statement of a minor taken in absence of an adult. The objection was overruled with the court reasoning that the statement was taken after his father had delivered him to the police station. It is on that Page 11 of 31

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basis that the statement was produced as an exhibit. Page 12 of 31

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15. PW8 testified further that he arrested the other accused persons; that he interrogated them; that they conceded that they were around the scene of crime at the material time; that the appellant stated that they visited the seasonal river to water his father’s cattle. On 10th March 2016, he escorted the accused persons for collection of DNA samples taken pursuant to an order of court and collected a vaginal swab taken at Meru Level 5 hospital during the post-mortem. When he visited the scene, he scooped bloodstained sand from the scene which he placed in an envelope. He filled an exhibit memo and took the samples to one PC Christopher Mosop who delivered them at the Government Chemist. During investigations, he escorted the four suspects to Marimanti Police Station where charge and cautionary statements were taken by CIP Wekesa, the OCS Marimanti, in the presence of their relatives. Convinced that they had committed the offence, he preferred murder charges against them. He acknowledged that the case was based on circumstantial evidence. 16. Cross-examined, he testified that he relied on the statement of the 1st accused when he started his investigations. He testified that the statement of the appellant and the 3rd accused indicated that the appellant had made a call through the phone of the 3rd accused. He averred that in the statement of the appellant, the appellant stated that it was the 1st accused who killed the deceased. Page 13 of 31

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17. The learned trial Judge was persuaded that a prima facie case had been established and put the accused on their defence. 18. The appellant (DW1) gave a sworn testimony. At that time, he was a Form 4 student. He testified that on 28th February 2016, he was herding goats in the company of his cousin, the 4th accused, when they decided to water the goats at river Mbuku, at about 5:00 pm. At the river, they met the deceased also watering her goats. They greeted her and left, and the deceased also left for her home. After about 200 meters, they met the 1 st accused with a machete indicating that he is looking for a calf. They proceeded with their journey home. The next day, 29th February 2016, while harvesting cow peas at their farm, the deceased’s mother Elizabeth, in the company of the deceased’s brother, passed by on their way to the crime scene and asked them whether they knew that someone had been killed at river Mbuku. He followed them to the scene, but found that they had already left with the deceased to Kamacabi Dispensary. They did not find her at the Dispensary as an ambulance had taken her. He went to Makutano Police Station where the deceased’s father and the village elder wrote statements. He proceeded to Marimanti Hospital, where the deceased was with her mother, and he stayed at the hospital the whole night. The following day, he was told that the deceased succumbed and he went home. On 6th March 2016, police officers came to his school looking for him and he was arrested. He Page 14 of 31

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was told to Page 15 of 31

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explain how the deceased died and he wrote a statement. He denied killing the deceased. 19. Cross-examined, the appellant stated that the deceased was his girlfriend, that they were lovers, and her family was aware of this affair. He testified that he saw the 3rd accused standing near the river. He acknowledged that all the four persons charged were at the river. Earlier, he had sent the 3rd accused to the home of the deceased to look for her as he had wanted the deceased to come and help them the following day to harvest the green grams, which they ordinarily do. The 3rd accused found her and he was able to talk to her through his phone. They agreed to meet at the river. He engaged in a private chat with the deceased, about 100m away, and part of the conversation involved him asking her whether she had been given permission by her parents to come help them harvest the following day. He saw the mother to the deceased the following day at 9.00am. He called John Nyaga, a brother- in-law to the deceased, and asked him if the deceased was at home as her mother had inquired from him whether he had seen her. He stated that when he was taken to the police station, he was fearful, and did not include in his statement all details of what he knew about the incident. 20. DW2- the 4th accused, then a Form 3 student, testified that on 28th February 2016, at about 2pm, he drove goats to the river. He met the appellant who Page 16 of 31

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was similarly taking his goats to the river. At the river, they met the deceased Page 17 of 31

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and there was also an old man called Musoma, who equally, had come to water his goats. They greeted them. He stated that the appellant and the deceased went on their own, a distance away for a discussion, and he was left watering the goats. He thereafter left with the appellant and the deceased also left for home. On the way, they met the 1st accused with a panga. The appellant asked him what he was looking for and he said he was looking for a calf. They then went their separate ways. The following day, he learnt from fellow students that the deceased had been raped and killed. On 6th March 2016 he was arrested at his school and told to give a statement concerning the deceased’s death. He wrote a statement. He denied any involvement in the death of the deceased. Cross-examined, he testified that he did not see the 3rd accused. He was not aware that the appellant had a relationship with the deceased. 21. With that evidence, the defence closed their case. 22. In his judgment, the learned trial Judge appreciated that the case of the prosecution was based on circumstantial evidence. Regarding the statement under inquiry, he found that it revealed what transpired and provided ‘links to the jigsaw puzzle of who murdered the deceased.’ He found that in the statement, the 1st accused had confessed; that the evidence of his father, who took him to the police station, is consistent with the culpability of the 1st accused; that by running away, the 1st and 3rd accused, ‘demonstrated that Page 18 of 31

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the Page 19 of 31

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guilty are afraid’; and that all the accused persons were at the scene of crime on the material day. Pursuant to the statement of the 1st accused, he hypothesized that after he had hit the deceased with a stone on the head, she fell down and the 4th accused defiled her in the company of the 2nd and 3rd accused; that from the post-mortem report, which found bruises around the genital region, the persons who took part in defiling the deceased were more than one; that the 2nd and 3rd accused, and the 4th accused, defiled the deceased in turns. Relying on Section 10 of the Evidence Act and Section 21 of the Penal he held that the appellant and the 4th accused harboured a common intention to defile the deceased and cause harm to her. He held that in those circumstances, malice aforethought had been proven. He held further, that the appellant and the 4th accused were the ones last seen with the deceased before she was found the following morning. He found all the persons charged guilty of murder and duly convicted them. 23. On sentence, he found that although at the time trial commenced the appellant was a minor, he had become an adult of 19 years at the time of sentence. He referred to Section 25 (2) of the Penal Code which contains the provision that a person cannot be sentenced to death if he commits murder while below 18 years but be held at the pleasure of the President. He was not persuaded that holding such person at the pleasure of the President would be in the best interest of the appellant. He also referred to Page 20 of 31

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Section 190 (2) of the Page 21 of 31

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Children’s Act, which prohibits sentencing of child offenders to death. He proceeded to sentence the appellant to 12 years imprisonment. 24. Aggrieved by the judgment of the trial court, the appellant has preferred this appeal on both conviction and sentence. The appellant initially raised 10 grounds of appeal, in summary, that the prosecution evidence was riddled with contradictions; that key witnesses were not called; that there were contradictions on the colour of the inner garment; that investigations were shoddy; that his defence was not considered; that it was the 1st and 3rd accused who absconded trial who committed the offence; that the appellant was underage at the time of the incident and was school going, and the Judge ought to have made a CSO order; that the Judge erred in law in rejecting his defence without giving cogent reasons in spite of it being credible, and for failing to note that the evidence adduced against him was hearsay. In his supplementary memorandum of appeal dated 17th April 2026, the appellant raised 5 more grounds of appeal, in summary, that the learned judge erred in law and fact in admitting and relying on the statement under inquiry, and the charge and cautionary statement; that the judge erred in basing a conviction on circumstantial evidence which was not sufficient; that the learned Judge made finding of facts and conclusions which were not supported by the evidence; that vital witnesses were not availed and the court ought to have inferred that they would have tendered Page 22 of 31

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evidence adverse to the prosecution Page 23 of 31

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case; that the learned Judge erred in rejecting the appellant’s evidence. The appellant prays that his appeal be allowed, his conviction be quashed, and the sentence of 12 years imprisonment be set aside. 25. This appeal proceeded by way of written submissions which were highlighted on 20th April 2026 during the hearing of the appeal, by Ms. Athieno, learned counsel holding brief for Ms. J.K Ntarangwi for the appellant, and Ms. Gacheru, learned Prosecution Counsel, for the respondent. 26. In her written submissions dated 18th April 2026, counsel for the appellant, identified that the trial court relied heavily on the evidence of PW5, the Government Analyst, and PW8, the Investigating Officer, who produced P. Exhibit 5, the 1st accused’s statement under inquiry, which implicated the appellant together with the other persons charged. She submitted that the statement under inquiry was taken on 4th March 2016 by one Inspector Ekirapa, and that the said IP Ekirapa should have been availed as a witness. She submitted that if the statement had been made in court, this would have been evidence against a co-accused which would have required corroboration. She further submitted that the court did not test whether the statement made under inquiry was true. She submitted that OCS Wekesa, who was said to have taken the statements of the appellant was similarly not called as a witness. She submitted that the appellant was a child when Page 24 of 31

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such Page 25 of 31

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statement was made and it was not demonstrated that he was properly cautioned by the person who recorded the statement. She submitted that the statements under inquiry were improperly admitted. Relying on Joseph Muriuki v Republic, Nyeri Court of Appeal Criminal Case No. 140 of 2014, counsel submitted that an adverse inference needs to be drawn to witnesses who have not been availed. On the DNA evidence, she submitted that the same did not implicate the appellant but only the 4th accused. She submitted that the trial Judge’s finding that the appellant jointly with the 4 th accused gang raped the deceased is not supported by the evidence and no evidence was presented by the prosecution to that effect. She submitted that the defence of the appellant was that although he was at the scene, he left the deceased, and it was not established that the appellant was the last person seen with the deceased. She relied on the case of Stephen Muthee Macheru v Republic (2001) KECA 11 (KLR) on circumstantial evidence and where the burden of proof lies. 27. In her written submissions dated 15th April 2026, counsel for the respondent relied on the case of Rex v. Kipkerring Arap Koske and 2 Others ([1949] EACA 135) on the legal test for evaluating circumstantial evidence in criminal trials, to contend that the testimony of PW3 and PW6 gave direct Page 26 of 31

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evidence on how they found the deceased abandoned along the road. She submitted that PW8 presented the statement of inquiry which incriminated Page 27 of 31

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the appellant, and the other persons charged, and placed them at the scene of crime. She asserted that they were the persons last seen with the deceased. On this aspect she relied on the case of Dida Ali Mohamed v R (Nakuru Criminal Appeal No. 178 of 2000). She submitted that DNA analysis indicated that the deceased was defiled by the 4th accused, and that the appellant conceded in his defence that he was in the company of the 4 th accused. She submitted that the court properly invoked Section 10 of the Evidence Act and Section 21 of the Penal Code on common intention. On the contention that critical witnesses were not called, counsel referred to Section 143 of the Evidence Act, that no particular number of witnesses are required to prove a fact, and the case of Keter v Republic (2007) 1 EA 135, that it is unnecessary to call a superfluity of witnesses. She submitted that the prosecution called the material witnesses whose evidence was sufficient to prove the offence against the appellant. She contested the argument that the witnesses gave inconsistent and contradictory evidence, and relying on the case of Joseph Maina Mwangi v R, Criminal Appeal No. 73 of 1993, submitted that in a trial there are bound to be discrepancies but what matters is whether they are fundamental. Regarding sentence, she submitted that the aggravating circumstances justified the sentence despite Page 28 of 31

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the appellant being 17 years at the time of commission of the offence. She referred us to the case of JKK v Republic (2013) in support. Page 29 of 31

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28. We have considered the foregoing. 29. This is a first appeal and the mandate of this court is now well settled. It is required of this court to re-evaluate the evidence, assess it, and reach its own independent conclusions, while making due allowance for the fact that we neither saw nor heard the witnesses (See Okeno v Republic (1972) EA 32). 30. We have outlined the evidence that the prosecution led to support the charge of murder against the appellant and the persons that he was charged with. PW1 merely took the 1st accused to the police station where he was arrested. PW2 assisted PW1 to take the 1st accused to the police station. PW-3 stumbled upon the deceased in the morning of 29th February 2016. He alerted the village elder and the deceased was taken to hospital. PW4, the father of the deceased narrated that the deceased did not come home on the night of 28th February 2016 and he identified her body for purposes of post-mortem. PW5, the Government Analyst, produced the DNA results. PW6 testified how the deceased was found in her farm. PW7, the doctor, produced the post- mortem report which disclosed that the deceased died from a head injury. PW8, the investigating officer narrated how he visited the scene, took samples, and importantly, produced a statement under inquiry allegedly made by the 1st accused. He acknowledged that he based his investigations on this statement and largely relied on it to prefer the Page 30 of 31

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charges. Page 31 of 31

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31. When we analyse this evidence, we observe that none of the witnesses saw firsthand, what transpired to lead to the injuries that the deceased suffered. None of the prosecution witnesses last saw the deceased with the appellant. Indeed, none of the prosecution witnesses saw the deceased with the appellant, either on 28th or 29th February 2016. It follows that the evidence is circumstantial. The evidence of PW1, PW2, PW3, PW4, PW6, and PW7, when combined, only show how the 1st accused was arrested, how the deceased was found, and what led to the death of the deceased. The evidence of PW5 demonstrates that the deceased was defiled. Importantly, there is nothing in the evidence of PW5 which makes any reference to the appellant as being the one who defiled the deceased, being a participant in the defilement, or even having been present with the deceased at the time that she was defiled. There is no evidence of gang rape, or that the deceased was defiled by more than one person. Clearly, there was no evidence which would have led the trial court to conclude that the deceased was gang raped, or was defiled by more than one person, or that the appellant was a participant in the defilement. The appellant is therefore correct in faulting the learned trial judge on this aspect. 32. It is only the evidence of PW8, the investigating officer, that makes reference to the appellant and we now proceed to analyse it. He took various samples of the scene, and as we have stated above, none of those Page 32 of 31

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samples Page 33 of 31

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point to the appellant having defiled the deceased, and none of the samples point to the appellant as being the perpetrator of the offence. The only evidence pointing at the deceased is what was termed to be the ‘statement of inquiry’ made by the 1st accused and which was produced by PW8 and marked P-exhibit 5. Much of the evidence of PW8 was hearsay, made in reference to what was contained in that statement under inquiry. The trial Judge indeed largely relied on this statement of inquiry in convicting the appellant. It will be recalled that the production of the statement of inquiry was contested but the objection was overruled and it has been raised before us that the trial court erred in admitting the statement as an exhibit or relying on its contents to convict the appellant. Counsel for the appellant and the respondent unfortunately did not refer us to any law or authorities on this very important aspect of the appeal. Nevertheless, we need to determine whether the trial court was correct in admitting this statement as an exhibit in support of the prosecution case. 33. The statement made by the 1st accused was an inculpatory statement. It is not clear to us at what stage that statement was taken in the investigations and whether it is truly a statement under inquiry or a statement under caution, but whatever the case, the statement did amount to a confession. The Constitution has safeguards against a person incriminating himself. Under the Constitution, one has the right to remain silent (Article 50 (2) (i) Page 34 of 31

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and the Page 35 of 31

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right to refuse to give incriminating evidence (Article 50 (2) (l)). At Article 50 (4), evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice. 34. The constitutional safeguards are elaborated at Section 25A of the Evidence Act, which provides as follows: 25A. Confessions generally inadmissible. (1) A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Inspector of Police, and a third party of the person’s choice. (2) The Attorney-General shall in consultation with the Law Society of Kenya, Kenya National Commission on Human Rights and other suitable bodies make rules governing the making of a confession in all instances where the confession is not made in court. 35. Section 25A (2) provided for rules to be made in case of confessions which are not made in Court. These rules were promulgated in Legal Notice No. 41 of 2009, The Evidence (Out of Court Confession) Rules, which commenced on 27th March 2009. The Rules provide for the taking of confessionary statements by the police before a ‘recording officer.’ According to Rule 2, a ‘Recording Officer’ needs to be one who is not below the rank of Chief inspector of Police. Rules 4 and 5 provide as Page 36 of 31

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follows: Page 37 of 31

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4. Rights of accused person. (1) Where an accused person intimates to the police that he wishes to make a confession, the recording officer shall take charge of the accused person and shall ensure that the accused person— (a) has stated his preferred language of communication; (b) is provided with an interpreter free of charge where he does not speak either Kiswahili or English; (c) is not subjected to any form of coercion, duress, threat, torture or any other form of cruel, inhuman or degrading treatment or punishment; (d) is informed of his right to have legal representation of his own choice; (e) is not deprived of food, water or sleep; (f) has his duration, including date and time of arrest and detention in police custody, established and recorded; (g) has his medical complaint, if any, adequately addressed; (h) is availed appropriate communication facilities; and (i) communicates with the third party nominated by him under paragraph (3) prior to the caution to be recorded under rule 5. (2) The recording officer shall not record a confession from any accused person who complains to him of being a victim of torture or whose physical appearance shows signs of physical injuries including open wounds, body swelling, or shows extraordinary fatigue or any other indicators that would suggest that the accused person has been tortured. (3) The recording officer shall ask the accused person to nominate a third party who shall be present during the duration of the confession session, and upon the appearance of the third party, the recording officer shall record the third party’s particulars and relationship to the accused person. 5. Caution to the accused person. (1) The recording officer shall caution the accused person in the following terms and shall record his response: “Do you wish to say anything? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence.” (2) While recording the confession, the recording officer shall ensure, and record compliance, that where the confession session is prolonged, the session included rest and relaxation periods. (3) The recording officer shall ensure that the confession is recorded at the same time it is made and shall record the date Page 38 of 31

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and time of commencement of the confession session and the place where the confession is recorded. 36. At this juncture we do observe that Section 25A of the Evidence Act does provide that confessions may be made before an officer of a rank not below Inspector of Police but the Rules provide for confessionary statements to be made before an officer who is at least of the rank of Chief Inspector of Police. This is an apparent conflict. It is trite however, that Rules cannot override what is expressed in statute, and we find that it is sufficient that statements are taken by an officer who is at least of the rank of Inspector of Police. It was said that the statement in issue was made before one IP Ekirapa, presumably, an Inspector of Police. However, the full name of the said IP Ekirapa is not indicated and neither is his Force Number. Neither is it indicated where this IP Ekirapa is stationed. There is no way of vouching that there exists an IP Ekirapa and that it was him who recorded the statement of the 1st accused. Indeed, no such person was called as a witness. 37. We have taken a keen look at the alleged statement of the 1 st accused. It is clear to us that there was a total disregard to the provisions of Section 25A and the Rules thereunder. Our first observation is that the statement is not dated. This is a clear violation of Rule 5 (3) above. There is no indication that the said statement was made before a third party of the choice of the 1 st accused in compliance with Section 25A of the Evidence Act and Rule 4 (3). Page 39 of 31

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There is no accompanying Certificate made by the alleged IP Ekirapa to confirm that he complied with the requirements of Section 25A (1) and Rule 5 (1) ; that he took note of the preferred language of the 1 st accused; that he informed the 1st accused that he has a right to legal representation; that he noted the duration of time that he had been in custody, his time and date of arrest and period of detention; or that he cautioned the 1st accused as required by Rule 5 (1) before taking down his statement. There is similarly no certificate from him giving the context within which the statement was made and confirming that it was made voluntarily and in full compliance with Section 25A (1) and the Rules. There was also no certificate from the 1st accused in compliance with Rule 9 which provides as follows : 9. Certificate of confession. The recording officer shall ensure that the written confession or electronic recording media contains the following certificate at the end of the confession, in the original language of the accused person: “I have read the above statement and I have been told that I can correct, alter or add anything I wish. The statement is true. I have made it of my own free will.” 38. It will further be recalled that there was an objection to the statement being made. Where there is an objection to a confessionary statement being produced, the court is enjoined to conduct a trial within a trial to verify for itself that the statement was indeed made within the stricture of the law. In the case of Owiti v R (1984) KLR 733, an objection was raised to the Page 40 of 31

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admission of a confessionary statement on the basis that it was obtained by violence. The Court of Appeal at page 735 held that: “Before admitting this document as a confession (which in fact it was not) the magistrate should have held a trial within a trial to determine whether the statement in it had been made voluntarily, or whether it had been obtained by violence as the appellant said. In such inquiry the onus is on the prosecution to satisfy the court that the alleged confession is voluntary and admissible.” 39. In Imbindi v Republic (1983) KLR 345, it was held by the Court of Appeal that “where accused persons challenge the admissibility of statements, a separate trial within a trial should be held for each impugned statement and each challenge is entitled to its own individual consideration.” More recently in the case of Musili Tulo v Republic [2014] KECA 412 (KLR), this Court expressed as follows: “27. It is evident therefore that there was objection made to the admissibility of the extra judicial statements and it was not accurate for the trial court to state that there was none. Once the objection was raised, it was the duty of the trial court to make an order for a ‘trial within the trial’ and to deliver a ruling to determine such admissibility, even before the statements were marked for identification. The purpose is to determine the voluntariness of the statement intended to be tendered for the prosecution, because a statement by an accused person is not admissible in evidence against him unless it is proved to have been voluntary. It is a matter of law and is for judge alone to decide upon hearing evidence - see Shah v. Republic 1984 [KLR] 674. Indeed it is an aspect of fair Page 41 of 31

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trial. We do not know what decision the trial court would have arrived at had it held a trial within the trial. What we can say for certain is that the court fell Page 42 of 31

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into error by failing to determine the issue of admissibility of the two extra-judicial statements.” In the same case the Court proceeded to find as follows : “31. Take what happened in this case: On the face of it, the two statements were recorded in a lackadaisical manner. At 4p.m. on 14th July, 2010, Chief Inspector Wafula was recording a ‘Charge and Cautionary statement’. One hour later, IP. Kombo was recording a “statement under Inquiry’. Logically, it is the statement under inquiry which should inform the Charge and cautionary statement! At any rate, IP. Kombo had no business recording the statement as it would be contrary to Section 25A (1) of the Evidence Act (supra). There was no third party as the section requires. None of the officers followed the Confession Rules on language and the various certifications stated therein. In sum, there is considerable doubt that the statements were recorded in accordance with the law and, therefore, they are for exclusion as evidence in the case. We so find.” 40. We reiterate that immediately there is a challenge to an extra-curial statement being introduced in evidence, then a court must hold a trial within a trial before such statement may be produced as an exhibit, or otherwise admitted in evidence. The trial court needs to be persuaded that such statement was made in accordance with the law and is admissible. In such trial within a trial, it is the person who recorded the statements who ought to present them for production as exhibits, unless for good reason to be recorded, such person is incapable of being present in court, for example if he is dead. The defence needs to be given an opportunity to crossexamine such witness before a decision can be made on the admissibility of the statement. In our case, the trial court did not bother to conduct a trial Page 43 of 31

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within a trial but summarily Page 44 of 31

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overruled the objection to the admission of the statement. This was a grave error on the part of the trial Judge. PW8 also mentioned some statements made by the appellant and made reference to what was allegedly contained in those statements, but which statements were never produced in evidence. Any admission of such evidence was hearsay and ought not to have been relied upon by the trial Court. 41. Where no trial within a trial is held such statements ought to be excluded as elaborated in the case of Musili Tulo v R (supra). Consequently, a conviction based on a statement which ought not to have been admitted in the first place cannot stand. 42. In Ndiba v Ndiba (1981) KLR 103, the appellant was convicted of murder. The conviction was largely based on a statement made to the police in which he admitted his guilt. He retracted that statement at trial, claiming that he was tortured to make it, which the trial judge rejected. The Court of Appeal was not persuaded that the statement was voluntarily made as there was suspicion that it was made under torture. The Court of Appeal held that it ought not to have been admitted in evidence and a conviction based on it could not stand in law. The Court expressed as follows: “Upon a re-evaluation of the evidence we are unable to rule out that this statement was extracted from the appellant by torture and we doubt that it was a voluntary statement. Accordingly, it should not have been admitted in evidence and a conviction based on it cannot in law stand. As we find no other sufficient evidence connecting the appellant with the Page 45 of 31

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offence of which he Page 46 of 31

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was convicted we allow this appeal, quash the conviction and set aside the sentence of death passed on the appellant.” In Ngoya v R (1985) KLR 309, the 2nd appellant was found guilty based on a confession statement which was allowed by the trial court but excluded on first appeal. Nevertheless, the High Court found his conviction proper. On second appeal to the Court of Appeal, the Court of Appeal, in allowing his appeal, expressed as follows at page 314: “Mr Odero made the point in favour of the 2nd appellant Ohonjo, that once his confession statement was excluded (as it was on first appeal) his appeal should have been allowed, as all that then remained against him was his presence in the stolen Mazda on June 9, for which presence he gave the explanation that he was an innocent passenger, and the fact that he was implicated by being referred to in the confession statements made by some of his co-accused. Such implication is evidence of the weakest sort, which can be taken into consideration, under section 32(1) of the Evidence Act, but only to lend assurance to other evidence. The only other evidence against the 2nd appellant is his presence in the stolen car, 9 days after it was stolen, for which he gave an explanation that could possibly be true. Mr Mugo conceded that the case against the 2nd appellant, once his extra-judicial statement was excluded, was very weak. We agree, and allow his appeal against conviction…”. 43. We find that there was no basis to admit the statement of the 1st accused. Stripped of that statement, the only other evidence available was that of PW5. That evidence constituted DNA evidence including DNA of the semen sample. The semen sample did not match the DNA of the appellant. There is therefore absolutely no evidence that supports the contention that the appellant defiled the deceased in anyway. There is also no evidence Page 47 of 31

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that supports the assertion that the deceased was defiled in the presence of the Page 48 of 31

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appellant. The conclusions of the Judge that there was gang rape and that the deceased was defiled in turns by all the four persons charged is not supported by any evidence. In those circumstances we find it difficult to connect the appellant to the defilement, or assault, of the deceased so that it can be said that the perpetrator had a common intention with the appellant. We find no basis whatsoever for reliance on the doctrine of common intention. 44. The prosecution’s case was also based on the doctrine of ‘Last Seen’; that it was the appellant who was last seen with the deceased. Before the ‘Last Seen’ doctrine can apply, there must be conclusive proof that the person was in fact the last person seen with the deceased, so that an explanation may be required from the person charged to explain the circumstances leading to the death of the deceased. In the case of Marita v Republic (Criminal Appeal No. 280 of 2018) (2023) KECA 580 (KLR), the Court of Appeal elaborated on this doctrine as follows: “22. The Last Seen Doctrine essentially provides that if a person is the last one seen with the deceased just before his death or within a reasonable period of his death and no other person could have intervened in between them, then the presumption can be taken that he (the person who was last seen with the deceased) is the author of the crime causing the deceased’s death. In such a case, the burden of proof shifts to the person last seen with the deceased to negate this fact and if he is not able to give a lucid and sufficient explanation about his innocence then the presumption becomes even stronger. Ideally, for the Last Seen Doctrine to safely apply, the duration Page 49 of 31

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of the accused and deceased last seen together and the recovery of the dead body should be minimal. This rule out the possibility that another person intervened. In cases where there exists a Page 50 of 31

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significant time gap between the time the deceased was last seen with the accused person and the time when the body was recovered, the presumption is considerably weakened.” 45. In the case herein, was it ever proved beyond reasonable doubt that it was the appellant who was last seen with the deceased? We are not persuaded. Whereas there is evidence that the appellant was among the persons who were with the deceased in the evening of 28 th February 2016, and the appellant confirmed this in his defence, there is no conclusive evidence that the appellant was the person last seen with the deceased. What was established was that the deceased was defiled before her death. We have already analysed that evidence in the preceding paragraphs and we did not find any evidence suggesting that the appellant defiled the deceased or was in company of the person who may have defiled the deceased. Additionally, there is significant time lapse between the time that the appellant was in the company of the deceased and the time that the body was found to rule out intervening events. In his defence, the appellant testified that he was with the deceased at around 5:00pm on 28th February 2016 at river Mbuku while herding goats. He was not alone, as he was with the 3rd accused, the 4th accused, and one Mzee Musoma. He testified that after having a chat with the deceased and watering their goats, they went their separate ways. On the way they met the 1st accused. It is the next morning, around 7.00am that the deceased was found. There was significant time lapse, from the Page 51 of 31

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evening of Page 52 of 31

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28th February to the morning of 29th February 2016 for intervening events to occur. 46. There is no evidence to dispel the version of events given by the appellant. It is not clear whether the deceased went home, after meeting the appellant, and later disappeared, as no evidence was led as to how the goats that she was herding found their way home. Although PW4, the deceased’s father, stated that he went looking for the deceased that night, he did not mention whether he looked for the deceased in the place where she was found, or whether he mobilised other people to look for the deceased. What we have is evidence of semen belonging another person who is not the appellant, and there is no DNA evidence linking the appellant to any sexual assault, or being present at the time of the sexual assault. There is no conclusive evidence of the time that the defilement may have occurred and no indication of the time that the injuries were inflicted upon the deceased. No witness was called to state when the appellant arrived home on the evening of 28th February 2016 or the following morning. There is therefore no supporting evidence whatsoever that it was the appellant who was last seen with the deceased. In those circumstances, we find difficulty in applying the doctrine of ‘Last Seen’ to the circumstances of this case. In essence, we do not find conclusive evidence that the appellant was the person last seen with the deceased as the probability of other intervening events having Page 53 of 31

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occurred cannot be ruled out. Page 54 of 31

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47. For the foregoing reasons, we are not persuaded that the conviction of the appellant was safe and we hereby quash it and set aside the sentence. The appellant to be set forth at liberty unless otherwise lawfully held under a separate warrant. 48. Judgment accordingly. Dated and delivered at Meru this 25th day of September, 2026. S. GATEMBU KAIRU, FCIArb, C.Arb ………………..…………. JUDGE OF APPEAL H.I. ONG’UDI ……………….…………… JUDGE OF APPEAL MUNYAO SILA …………………………. JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. Page 55 of 31

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