REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL APPEAL NO.E 035 OF 2025
EVANS MANYARA OMBIRO……………………………………APPELLANT
VERSUS
REPUBLIC…...................................................................... RESPONDENT
(Being an appeal from the judgment, conviction and sentence of the Honourable B. O. Omwanza, Senior Principal Magistrate, delivered on 9 th October, 2025 in Kisii CMCRC No. E 1656 of 2024).
JUDGMENT
The appellant and one Clinton Nyankeya Jomo ,were jointly charged with the offence of robbery with violence contrary to S. 296(2) of the Penal Code. The particulars of the offence stated that on the night of 20 th April, 2024 at Nyataro sub-location in, Nyansakia location in Etago Sub-County within Kisii County they robbed the late Brizil Nyamburi of motorcycle registration No. KMGK 198 F make TVS Star, red in colour, valued at Kshs. 100,000/= and immediately before the time of such robbery fatally injured the said Brizil Nyamburi. The appellant denied the charges, after a full trial, the appellant was convicted and sentenced to suffer death as a punishment for the offence.
It is prudent to capture the history of the case before the trial court before delving into the analysis of evidence. The record shows that the trial commenced before Hon. Mugendi Nyaga, Principal Magistrate, at Etago Law Courts, before it was transferred to Kisii Law Courts. The transfer was prompted by an application for recusal by the prosecutor who was handling the case who cited lack of cooperation from the investigative agencies. It appears the prosecutor had suggested the recording of a confession from the 2 nd subject who was a minor. The prosecutor also cited the unexplained release of the main suspect in the case and apprehension over the personal security of the prosecutor. The prosecutor that the record shows is called Mr. Shabola, is said to have been the only prosecutor posted to Etago Law Courts. In a ruling delivered on 11 th September, 2024, Hon. Mugendi referred the file for placement before a Judge for directions under S. 81 of the Criminal Procedure Code.
Lady Justice T.A. Odera, in a ruling delivered on 14 th November, 2024 directed that the case be transferred to Kisii Chief Magistrate’s court for hearing. It is apparent that the 2 nd subject, known as C.N.J, had escaped from lawful custody when the hearing commenced before Kisii CM’s court.
Evidence adduced before the trial court.
The evidence before the trial court shows that Mr. Clifford Mogoi Isaboke bought a motorcycle Reg. No. KMGK 198 F from one Daniel Onyancha on 3 rd April, 2024 and hired the late Brizil Nyamburi as a rider. The deceased was to be remitting Kshs. 2,000/= to Mr. Clifford every week. Sadly, on 22 nd April, 2024 Mr. Clifford leaned that the deceased had been killed and that his motorcycle was at Etago Police station. He went and identified the motorcycle by presenting the logbook and purchase agreement (see exhibits 1 & 2 respectively).
Peter Onyonko who is a motorcycle rider told the court that he carried two pillion passengers on 20 th April, 2024 called Evans and Clinton to Kenyenya town. It is not clear from his evidence where he picked the said pillion passengers, he told the court that he was paid Kshs. 50/= for the ride. He identified the appellant as one of the passengers that he gave a ride to which was paid for by Clinton who had asked the witness for the ride. Daniel Onyacha confirmed selling motorcycle Reg. No. KMGK 198 F to Clifford on 3 rd April, 2024. When Daniel was summoned to the DCI offices on 23 rd April, 2024 he found that the motorcycle he had sold to Clifford had been tampered with and fitted with a fake number plate No. KMFZ 466 J. He told the court that he identified the motorcycle through its chassis and engine numbers. Daniel was told by the police that the rider who had the motorcycle had been killed.
No. 248873 I.P. Tobias Ouko told the court that he learned of the death of the deceased from the chief of Nyansakia location on 21 st April, 2024. He says he mobilized police officers and visited the scene where he noted a deep cut wound on the head of the deceased. According to IP Tobias, the appellant, C.N.J, Jeremiah Matagaro and Newton Omweri were arrested as suspects. It is the evidence of IP Tobias that C.N.J led police officers to the home of one Evans Ombiro where a motorcycle fitted with number plate KMFZ 466 J was recovered.
IP Tobias told the court that the motorcycle had been hidden in a kitchen that had to be broken into for recovery. He further told the court that the kitchen belonged to one Evans Ombiro who was away in Nairobi. He told the court that the appellant was arrested at his home and that the motorcycle was not recovered from his home.
Corporal Protuse Chacha who is the investigating officer in this case told the court that he visited the scene where the body of the deceased was recovered on 21 st April, 2024. He says he later learned of the recovery of motorcycle Reg. No. KMFZ 466 J and the arrest of four suspects who were linked to the recovered motorcycle. The I.O. told the court that the motorcycle which was in the custody of the deceased was found hidden in an abandoned house. Its number plate KMGK 198 F had been replaced with a fake number plate KMFZ 466 J. He told the court that that the appellant and C.N.J led the police to the recovery of the motorcycle. C.N.J is said to have shown the police where the ignition key was.
Cpl. Chacha told the court that he forwarded his investigations file to the ODPP which directed that the appellant and C.N.J be charged while the other two suspects were released. He conceded that nothing was recovered from the appellant. According to Cpl. Chacha, a suspect called Jeremiah Matagaro was the first to report the incident when the stolen motorcycle was taken to his house. Matagaro’s wife reportedly protested when the stolen motorcycle was taken to her house.
Cpl. Chacha told the court that his investigations linked the appellant and C.N.J to the offence as the persons who approached the deceased asking for a ride, attacked him and stole his motorcycle, which they took to the house of J. Matagaro. Dr. Evans Monda conducted a post mortem on the body of the deceased on 24 th April, 2024. He told the court that the deceased suffered a deep cut on the head that spilled his brain tissue. He formed the opinion that the deceased died because of severe head and brain injury (see post mortem report produced as exhibit 4).
When placed on his defence, the appellant denied committing the offence of robbery. He gave an account that he was at his home on 20 th April, 2024 after a church service. He narrated that he spent the night at his home and work up to attend to his farm on 21 st April, 2024 when he was arrested by motorcycle riders that took him to Moticho police station where he found two other suspects who had been arrested. He further told the court that he was transferred to Etago police station where he was remanded for three days. It was while there, that he says DCI sleuths asked him for money that he could not raise. He says the rest of the suspects paid money and were released. He averred that he had never engaged in violent robbery his entire life. He named Jeremiah Matagaro and C.N.J, who are his clansmen, as the suspects who paid money and were released. .
Being dissatisfied with both the conviction and sentence imposed by the learned trial magistrate, the appellant has appealed to this court. The appeal is contained in the appellant’s undated petition of appeal lodged with the court on 23 th October, 2025. The appellant is seeking orders to have the conviction quashed, the sentence of death set aside and that the appellant be set at liberty.
The grounds in support of the appeal are as summarized hereunder;
1. That the trial magistrate erred in law and fact by convicting the appellant when the case had not been proved beyond reasonable doubt,
2. That the learned trial magistrate erred in law and fact by accepting evidence lacking in credibility, doubtful and by failing to find that no investigations were carried out, and
3. That the learned trail magistrate erred in law and fact by failing to give reasons for disbelieving the appellant’s defence and for sentencing the appellant to suffer death which sentence was declared unconstitutional in the case of Kariako Muruatetu & Another v Republic , Petition No. 15 of 2015 (2017) eKLR.
The appeal was admitted for hearing with directions that the parties file their respective submissions.
Appellant submission.
In his written submissions dated 19 th February, 202, the appellant submits that he was arrested on the basis of mere suspicion after he was mentioned by another suspect who had been arrested. The appellant faults the trial court for failing to warn the appellant about the need for legal representation considering the charges that he was facing. He contends that his rights under Article 50(2) (g) and (h) were violated.
Citing the cases of Joseph Kieme Philip v R (2019) eKLR and the case of Chacha Mwita v R No. 33 of 2014, the appellant submits that the failure to inform the appellant of his right to legal representation renders the trial a nullity. The appellant gives a summary of the prosecution’s case and submits that the stolen motorcycle was found in a kitchen of someone who was staying in Nairobi. He says that the kitchen was broken into and that the motorcycle was not found in the actual possession of the appellant. The appellant submits that there is no credible evidence linking him to the recovered motorcycle. He faults the prosecution for its failure to charge one Clinton who was in possession of the stolen motorcycle.
The appellant submits that he is a mere sugarcane harvester, who does not know how to ride a motorcycle. He avers that he was falsely implicated in the commission of the offence. The appellant contends that he did not lead the police to the recovery of the stolen motorcycle as suggested. The appellant submits that the prosecution evidence is contradictory and the same should have been rejected by the trial court. The appellant characterizes the investigations that led to his conviction as being shoddy. He sums up by pointing that the mandatory death sentence as prescribed under the law is unconstitutional. He therefore urges the court to allow his appeal in its entirety.
Respondent submissions.
The respondent did not file any submissions as regards the present appeal. Even though Ms. Kitoto who appeared for the respondent on 20 th May, 2026 intimated that respondent submission were filed on 19 th May, 2026, no such submissions are to be found in the case tracking system (CTS).
As the first appellate court, it is the duty of this court to re-evaluate the evidence tendered before the trial court in order to draw its own conclusion on whether or not the case was proved to the requisite standards. See Okeno v Republic (1972) EA32. It should be borne in mind that it is the sole duty of the prosecution to proof its case beyond any reasonable doubt in order to sustain a conviction. See the decision in Woolmington v DPP (1935) AC 462, the burden never shifts to the defence.
The appellant says in his submissions that he was charged on mere suspicion; it is trite law that suspicion, however strong cannot form the basis for conviction unless there is credible evidence linking a suspect to the commission of the alleged offence. While convicting the appellant, the trial court had this to say, “I have considered the evidence adduced in court in establishing the fact in issue by the prosecution as well as that of the defence trying to disprove this fact issue. I have taken note that largely the evidence adduced is real evidence, exceptions of heresy evidence and circumstantial evidence. It would appear that there is no direct evidence adduced by any prosecution witness.” By reference to “real evidence”, it is not clear if the learned trial magistrate meant direct evidence. Citing the case of Malingi v Republic (1989) KLR 225, the trial court evaluated the applicability of the doctrine of recent possession to the case against the appellant. The doctrine relates to recovery of evidentiary material linking a suspect to the commission of an offence, mostly theft, so soon after the commission of the offence under circumstances where no reasonable explanation is forthcoming from the suspect.
The trial court also cited the case of R v Kipkering Arap Koskei & Another (1949) 16 EACA 135 on the applicability of circumstantial evidence to draw an inference of guilt on the part of a suspect charged with the commission of an offence. In the cited case, it was held that for circumstantial evidence to be relied on to form the basis for a conviction the circumstantial evidence must form a complete chain. The circumstantial evidence ought to point to the guilt of the suspect to the exclusion of any other person and it must be inconsistent with any other reasonable hypothesis as to his innocence. The trial court then pointed to the fact that the deceased was brutally attacked and killed, robbed of the motorcycle that he was riding which was recovered a day or two after his killing. The trial court then draws a nexus to allegations that one Peter Onyonko Menya had on 20 th April, 2024 transport the appellant and C.N.J. to Kenyenya and the fact that C.N.J escaped from lawful custody at Manga Children’s Remand.
In concluding that the appellant was involved in the killing of the deceased and the theft of his motorcycle, the trial court had this to say, and I quote “whereas the defence appears not to dislodge the hypothesis and or there is no other hypothesis conceived and or perceived in the mind of this court to say otherwise. I am not persuaded that the accused person was not one or among the persons who were involved in this heinous crime….”
It would appear from the above excerpt that the trial court is saying the appellant failed to prove his innocence whereas there is strong suspicion that he was involved in the robbery committed against the deceased and his ultimate killing. This would go against the notion of presumption of innocence and the timeless concept that the duty to prove the guilt of an accused person rests with the prosecution at all times unless expressed otherwise by an applicable statute. IP Tobias Ouko who led police officers to the scene where the deceased had been killed and to a house where the motorcycle the deceased was riding was recovered told the court that C.N.J led police officers to the recovery of the said motor cycle. It is the evidence of Tobias that the motorcycle was locked in a kitchen belonging to one Evans Ombiro who stays in Nairobi.
He conceded on cross-examination that the motorcycle was not recovered from the appellant. CPL Protuse Chacha who was the investigating officer, told the court that C.N.J. led the police to the recovery. It is not clear in evidence how each of the four suspects including the appellant were arrested save that the appellant is said to have been arrested at his home. The police did not establish the movements of the deceased before his killing. Not witness saw the appellant with the deceased. The circumstances under which C.N.J. escaped from custody are unclear, it is apparent that no attempt was made to trace him. Equally inexplicable are circumstances under which Jeremiah Matagaro and Newton Omweri were released. Of interest is Mr. Matagaro to whose house the deceased’s motorcycle was said to have been taken, a move, which is wife, thwarted. In the very least, he should have been treated as a prosecution witness if not the main suspect in the commission of the offence. I agree with the appellant that the investigations were shoddy if not out rightly compromised. No wonder a prosecutor recused himself rather than participate in a charade of a trial. It is apparent that the appellant became the fall guy or the sacrificial lamb used to cover the real killers of the deceased. He alluded to the fact that he was charged after he failed to pay a bribe. The fact that he was dropped at Kenyenya is of no evidentiary value, more so, when a single witness who did not state how he knew him is said to been the one linking him to the offence. No evidence was adduced showing that the deceased was ever at Kenyenya before he was waylaid and slayed.
There were glaring omissions and gaps in the prosecution’s case. Even the person from whose house the motorcycle was recovered was never called as a witness. There is no evidence, either direct or circumstantial, linking the appellant to the commission of the offence for which he was convicted. He has tried to explain as much in his submissions, his conviction is evidently unsafe and the same cannot stand. Having said as much about this case, I do allow the appeal in its entirety with the result that the conviction passed against the appellant is quashed and his sentence of death set aside. The appellant is hereby ordered to be set at liberty unless he is otherwise lawfully held.
IT IS HEREBY ORDERED.
Judgment read, dated, signed and delivered virtually this 9 th day of July, 2026
HON. RICHARD K. KOECH
JUDGE
In the presence of :
- appellant appearing virtually from Naivasha GKP
- Mr. Koima appearing virtually for the Respondent
- Mr. Enock Court Assistant
Right of appeal within 14 days
. 10
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL APPEAL NO.E 035 OF 2025
EVANS MANYARA OMBIRO……………………………………APPELLANT
VERSUS
REPUBLIC…...................................................................... RESPONDENT
(Being an appeal from the judgment, conviction and sentence of the Honourable B. O. Omwanza, Senior Principal Magistrate, delivered on 9 th October, 2025 in Kisii CMCRC No. E 1656 of 2024).
JUDGMENT
The appellant and one Clinton Nyankeya Jomo ,were jointly charged with the offence of robbery with violence contrary to S. 296(2) of the Penal Code. The particulars of the offence stated that on the night of 20 th April, 2024 at Nyataro sub-location in, Nyansakia location in Etago Sub-County within Kisii County they robbed the late Brizil Nyamburi of motorcycle registration No. KMGK 198 F make TVS Star, red in colour, valued at Kshs. 100,000/= and immediately before the time of such robbery fatally injured the said Brizil Nyamburi. The appellant denied the charges, after a full trial, the appellant was convicted and sentenced to suffer death as a punishment for the offence.
It is prudent to capture the history of the case before the trial court before delving into the analysis of evidence. The record shows that the trial commenced before Hon. Mugendi Nyaga, Principal Magistrate, at Etago Law Courts, before it was transferred to Kisii Law Courts. The transfer was prompted by an application for recusal by the prosecutor who was handling the case who cited lack of cooperation from the investigative agencies. It appears the prosecutor had suggested the recording of a confession from the 2 nd subject who was a minor. The prosecutor also cited the unexplained release of the main suspect in the case and apprehension over the personal security of the prosecutor. The prosecutor that the record shows is called Mr. Shabola, is said to have been the only prosecutor posted to Etago Law Courts. In a ruling delivered on 11 th September, 2024, Hon. Mugendi referred the file for placement before a Judge for directions under S. 81 of the Criminal Procedure Code.
Lady Justice T.A. Odera, in a ruling delivered on 14 th November, 2024 directed that the case be transferred to Kisii Chief Magistrate’s court for hearing. It is apparent that the 2 nd subject, known as C.N.J, had escaped from lawful custody when the hearing commenced before Kisii CM’s court.
Evidence adduced before the trial court.
The evidence before the trial court shows that Mr. Clifford Mogoi Isaboke bought a motorcycle Reg. No. KMGK 198 F from one Daniel Onyancha on 3 rd April, 2024 and hired the late Brizil Nyamburi as a rider. The deceased was to be remitting Kshs. 2,000/= to Mr. Clifford every week. Sadly, on 22 nd April, 2024 Mr. Clifford leaned that the deceased had been killed and that his motorcycle was at Etago Police station. He went and identified the motorcycle by presenting the logbook and purchase agreement (see exhibits 1 & 2 respectively).
Peter Onyonko who is a motorcycle rider told the court that he carried two pillion passengers on 20 th April, 2024 called Evans and Clinton to Kenyenya town. It is not clear from his evidence where he picked the said pillion passengers, he told the court that he was paid Kshs. 50/= for the ride. He identified the appellant as one of the passengers that he gave a ride to which was paid for by Clinton who had asked the witness for the ride. Daniel Onyacha confirmed selling motorcycle Reg. No. KMGK 198 F to Clifford on 3 rd April, 2024. When Daniel was summoned to the DCI offices on 23 rd April, 2024 he found that the motorcycle he had sold to Clifford had been tampered with and fitted with a fake number plate No. KMFZ 466 J. He told the court that he identified the motorcycle through its chassis and engine numbers. Daniel was told by the police that the rider who had the motorcycle had been killed.
No. 248873 I.P. Tobias Ouko told the court that he learned of the death of the deceased from the chief of Nyansakia location on 21 st April, 2024. He says he mobilized police officers and visited the scene where he noted a deep cut wound on the head of the deceased. According to IP Tobias, the appellant, C.N.J, Jeremiah Matagaro and Newton Omweri were arrested as suspects. It is the evidence of IP Tobias that C.N.J led police officers to the home of one Evans Ombiro where a motorcycle fitted with number plate KMFZ 466 J was recovered.
IP Tobias told the court that the motorcycle had been hidden in a kitchen that had to be broken into for recovery. He further told the court that the kitchen belonged to one Evans Ombiro who was away in Nairobi. He told the court that the appellant was arrested at his home and that the motorcycle was not recovered from his home.
Corporal Protuse Chacha who is the investigating officer in this case told the court that he visited the scene where the body of the deceased was recovered on 21 st April, 2024. He says he later learned of the recovery of motorcycle Reg. No. KMFZ 466 J and the arrest of four suspects who were linked to the recovered motorcycle. The I.O. told the court that the motorcycle which was in the custody of the deceased was found hidden in an abandoned house. Its number plate KMGK 198 F had been replaced with a fake number plate KMFZ 466 J. He told the court that that the appellant and C.N.J led the police to the recovery of the motorcycle. C.N.J is said to have shown the police where the ignition key was.
Cpl. Chacha told the court that he forwarded his investigations file to the ODPP which directed that the appellant and C.N.J be charged while the other two suspects were released. He conceded that nothing was recovered from the appellant. According to Cpl. Chacha, a suspect called Jeremiah Matagaro was the first to report the incident when the stolen motorcycle was taken to his house. Matagaro’s wife reportedly protested when the stolen motorcycle was taken to her house.
Cpl. Chacha told the court that his investigations linked the appellant and C.N.J to the offence as the persons who approached the deceased asking for a ride, attacked him and stole his motorcycle, which they took to the house of J. Matagaro. Dr. Evans Monda conducted a post mortem on the body of the deceased on 24 th April, 2024. He told the court that the deceased suffered a deep cut on the head that spilled his brain tissue. He formed the opinion that the deceased died because of severe head and brain injury (see post mortem report produced as exhibit 4).
When placed on his defence, the appellant denied committing the offence of robbery. He gave an account that he was at his home on 20 th April, 2024 after a church service. He narrated that he spent the night at his home and work up to attend to his farm on 21 st April, 2024 when he was arrested by motorcycle riders that took him to Moticho police station where he found two other suspects who had been arrested. He further told the court that he was transferred to Etago police station where he was remanded for three days. It was while there, that he says DCI sleuths asked him for money that he could not raise. He says the rest of the suspects paid money and were released. He averred that he had never engaged in violent robbery his entire life. He named Jeremiah Matagaro and C.N.J, who are his clansmen, as the suspects who paid money and were released. .
Being dissatisfied with both the conviction and sentence imposed by the learned trial magistrate, the appellant has appealed to this court. The appeal is contained in the appellant’s undated petition of appeal lodged with the court on 23 th October, 2025. The appellant is seeking orders to have the conviction quashed, the sentence of death set aside and that the appellant be set at liberty.
The grounds in support of the appeal are as summarized hereunder;
1. That the trial magistrate erred in law and fact by convicting the appellant when the case had not been proved beyond reasonable doubt,
2. That the learned trial magistrate erred in law and fact by accepting evidence lacking in credibility, doubtful and by failing to find that no investigations were carried out, and
3. That the learned trail magistrate erred in law and fact by failing to give reasons for disbelieving the appellant’s defence and for sentencing the appellant to suffer death which sentence was declared unconstitutional in the case of Kariako Muruatetu & Another v Republic , Petition No. 15 of 2015 (2017) eKLR.
The appeal was admitted for hearing with directions that the parties file their respective submissions.
Appellant submission.
In his written submissions dated 19 th February, 202, the appellant submits that he was arrested on the basis of mere suspicion after he was mentioned by another suspect who had been arrested. The appellant faults the trial court for failing to warn the appellant about the need for legal representation considering the charges that he was facing. He contends that his rights under Article 50(2) (g) and (h) were violated.
Citing the cases of Joseph Kieme Philip v R (2019) eKLR and the case of Chacha Mwita v R No. 33 of 2014, the appellant submits that the failure to inform the appellant of his right to legal representation renders the trial a nullity. The appellant gives a summary of the prosecution’s case and submits that the stolen motorcycle was found in a kitchen of someone who was staying in Nairobi. He says that the kitchen was broken into and that the motorcycle was not found in the actual possession of the appellant. The appellant submits that there is no credible evidence linking him to the recovered motorcycle. He faults the prosecution for its failure to charge one Clinton who was in possession of the stolen motorcycle.
The appellant submits that he is a mere sugarcane harvester, who does not know how to ride a motorcycle. He avers that he was falsely implicated in the commission of the offence. The appellant contends that he did not lead the police to the recovery of the stolen motorcycle as suggested. The appellant submits that the prosecution evidence is contradictory and the same should have been rejected by the trial court. The appellant characterizes the investigations that led to his conviction as being shoddy. He sums up by pointing that the mandatory death sentence as prescribed under the law is unconstitutional. He therefore urges the court to allow his appeal in its entirety.
Respondent submissions.
The respondent did not file any submissions as regards the present appeal. Even though Ms. Kitoto who appeared for the respondent on 20 th May, 2026 intimated that respondent submission were filed on 19 th May, 2026, no such submissions are to be found in the case tracking system (CTS).
As the first appellate court, it is the duty of this court to re-evaluate the evidence tendered before the trial court in order to draw its own conclusion on whether or not the case was proved to the requisite standards. See Okeno v Republic (1972) EA32. It should be borne in mind that it is the sole duty of the prosecution to proof its case beyond any reasonable doubt in order to sustain a conviction. See the decision in Woolmington v DPP (1935) AC 462, the burden never shifts to the defence.
The appellant says in his submissions that he was charged on mere suspicion; it is trite law that suspicion, however strong cannot form the basis for conviction unless there is credible evidence linking a suspect to the commission of the alleged offence. While convicting the appellant, the trial court had this to say, “I have considered the evidence adduced in court in establishing the fact in issue by the prosecution as well as that of the defence trying to disprove this fact issue. I have taken note that largely the evidence adduced is real evidence, exceptions of heresy evidence and circumstantial evidence. It would appear that there is no direct evidence adduced by any prosecution witness.” By reference to “real evidence”, it is not clear if the learned trial magistrate meant direct evidence. Citing the case of Malingi v Republic (1989) KLR 225, the trial court evaluated the applicability of the doctrine of recent possession to the case against the appellant. The doctrine relates to recovery of evidentiary material linking a suspect to the commission of an offence, mostly theft, so soon after the commission of the offence under circumstances where no reasonable explanation is forthcoming from the suspect.
The trial court also cited the case of R v Kipkering Arap Koskei & Another (1949) 16 EACA 135 on the applicability of circumstantial evidence to draw an inference of guilt on the part of a suspect charged with the commission of an offence. In the cited case, it was held that for circumstantial evidence to be relied on to form the basis for a conviction the circumstantial evidence must form a complete chain. The circumstantial evidence ought to point to the guilt of the suspect to the exclusion of any other person and it must be inconsistent with any other reasonable hypothesis as to his innocence. The trial court then pointed to the fact that the deceased was brutally attacked and killed, robbed of the motorcycle that he was riding which was recovered a day or two after his killing. The trial court then draws a nexus to allegations that one Peter Onyonko Menya had on 20 th April, 2024 transport the appellant and C.N.J. to Kenyenya and the fact that C.N.J escaped from lawful custody at Manga Children’s Remand.
In concluding that the appellant was involved in the killing of the deceased and the theft of his motorcycle, the trial court had this to say, and I quote “whereas the defence appears not to dislodge the hypothesis and or there is no other hypothesis conceived and or perceived in the mind of this court to say otherwise. I am not persuaded that the accused person was not one or among the persons who were involved in this heinous crime….”
It would appear from the above excerpt that the trial court is saying the appellant failed to prove his innocence whereas there is strong suspicion that he was involved in the robbery committed against the deceased and his ultimate killing. This would go against the notion of presumption of innocence and the timeless concept that the duty to prove the guilt of an accused person rests with the prosecution at all times unless expressed otherwise by an applicable statute. IP Tobias Ouko who led police officers to the scene where the deceased had been killed and to a house where the motorcycle the deceased was riding was recovered told the court that C.N.J led police officers to the recovery of the said motor cycle. It is the evidence of Tobias that the motorcycle was locked in a kitchen belonging to one Evans Ombiro who stays in Nairobi.
He conceded on cross-examination that the motorcycle was not recovered from the appellant. CPL Protuse Chacha who was the investigating officer, told the court that C.N.J. led the police to the recovery. It is not clear in evidence how each of the four suspects including the appellant were arrested save that the appellant is said to have been arrested at his home. The police did not establish the movements of the deceased before his killing. Not witness saw the appellant with the deceased. The circumstances under which C.N.J. escaped from custody are unclear, it is apparent that no attempt was made to trace him. Equally inexplicable are circumstances under which Jeremiah Matagaro and Newton Omweri were released. Of interest is Mr. Matagaro to whose house the deceased’s motorcycle was said to have been taken, a move, which is wife, thwarted. In the very least, he should have been treated as a prosecution witness if not the main suspect in the commission of the offence. I agree with the appellant that the investigations were shoddy if not out rightly compromised. No wonder a prosecutor recused himself rather than participate in a charade of a trial. It is apparent that the appellant became the fall guy or the sacrificial lamb used to cover the real killers of the deceased. He alluded to the fact that he was charged after he failed to pay a bribe. The fact that he was dropped at Kenyenya is of no evidentiary value, more so, when a single witness who did not state how he knew him is said to been the one linking him to the offence. No evidence was adduced showing that the deceased was ever at Kenyenya before he was waylaid and slayed.
There were glaring omissions and gaps in the prosecution’s case. Even the person from whose house the motorcycle was recovered was never called as a witness. There is no evidence, either direct or circumstantial, linking the appellant to the commission of the offence for which he was convicted. He has tried to explain as much in his submissions, his conviction is evidently unsafe and the same cannot stand. Having said as much about this case, I do allow the appeal in its entirety with the result that the conviction passed against the appellant is quashed and his sentence of death set aside. The appellant is hereby ordered to be set at liberty unless he is otherwise lawfully held.
IT IS HEREBY ORDERED.
Judgment read, dated, signed and delivered virtually this 9 th day of July, 2026
HON. RICHARD K. KOECH
JUDGE
In the presence of :
- appellant appearing virtually from Naivasha GKP
- Mr. Koima appearing virtually for the Respondent
- Mr. Enock Court Assistant
Right of appeal within 14 days
. 10