(Being an appeal from the original conviction and sentence by Hon. R. Amwayi, Principal Magistrate in Kaloleni Principal Magistrate’s Court Criminal Case No.E026 of 2024 delivered on 24/4/2025)
JUDGMENT
1. The appellant was convicted of the offence of arson contrary to section 332(a) of the Penal Code. The particulars of the offence were that on the 3 rd day of January 2024 at St. John’s Girls Secondary School in Kaloleni sub county within Kilifi county she wilfully and unlawfully set fire to Elgon 10 dormitory valued at Ksh.7,548,254/= belonging to St. John`s Girls Secondary School.
2. The appellant was sentenced to pay a fine of Ksh.2,000,000/= in default to serve three years imprisonment. She was aggrieved by the conviction and the sentence and filled the instant appeal. The grounds of appeal are that:
(1) The Learned Magistrate erred in law and fact by making a finding that the prosecution had proved its case beyond reasonable doubt and proceeded to convict the Appellant.
(2) The Learned Magistrate erred in law and fact by failing to analyse the evidence produced by the prosecution and thereby arriving at a wrong decision that the Appellant was guilty as charged.
(3) The Learned Magistrate erred in law and fact by making a finding that the circumstantial evidence tendered before the court was enough to draw an inference of guilt on the part of the Appellant.
(4) The Learned Magistrate erred in law and fact by failing to analysed the evidence tendered by the Appellant, which exonerated the Appellant from the charge facing her.
(5) The Learned Magistrate erred in law and fact by failing to accord the appellant a benefit of doubt despite the evidence tendered by the Appellant.
Case for prosecution
3. The case for the prosecution was that the Appellant was a matron at the aforementioned school. Santa PW1 was a colleague matron. That on the material day a student called Dinah PW2 had a case of indiscipline with the school principal PW8. That in the evening at 8.30 pm the principal called the appellant and instructed her to take the girl with her for her to spend the night at her (appellant`s) house. The appellant took the girl PW2 with her. The appellant called the other two matrons, Santa PW1 and another called Martha and they escorted the girl to her dormitory, Elgon 10, for her to collect her belongings. They went with the girl and she collected her belongings. The appellant went with her to her house.
4. It was the evidence of the girl student Dinah PW2 that upon the appellant taking her to her house the appellant received a phone call and left to collect her (PW2`s) supper and warm bathing water. She locked her in the house. That after some time there was a black out and students started to scream. That the appellant then went back at around 9am while shouting that dormitory 10 was on fire. She told her to remain in the house for her to go and attend to other students. That later the appellant went back to the house before taking students to hospital. She took a shower and changed clothes. That she left and when she returned, she took a shower again. That on that evening she took showers about 3 times which she PW2 did not consider normal given the circumstances.
5. Matron Santa PW1 confirmed that they escorted Dinah PW2 for her to collect her belongings from Elgon 10 dormitory. That after she collected her belongings the child complained that she had not eaten. The appellant took the girl to her house after which she went and found her, PW1, at the dining. The appellant told her that she had forgotten her phone at Elgon dormitory and went to pick it. That the students were at the time in their classes. That after about 15 minutes some students went to her running and told them that Elgon dormitory was on fire. She screamed and members of the public went to assist in putting out the fire.
6. The ICT manager/technician of the school PW5 testified that his duties included maintenance of CCTV infrastructure at the school. That on the evening of the material day at 9.24 pm he was called at the school and informed that there was a fire at the school. He rushed to the school and found Elgon dormitory on fire.
7. It was his evidence that there were 2 cameras mounted facing the said dormitory, one at the front and another at the rear. That on the following day he reviewed the footage and found that the appellant was captured entering Elgon dormitory at 2107 hours and captured coming out of the dorm hurriedly at 2112 hours. Shortly after at 2114 hours fire was seen coming out of the said dormitory. He extracted the footage and stored it in a flash disc which he handed over to the investigating officer.
8. The case was investigated by Senior Sargent Maneno PW9 of the DCI office Kilifi. He said that on 1/2/2024 he travelled to the school with the scenes of crime officer from Malindi PW6. That he collected ashes and debris from the dormitory. The scenes of crime officer took photographs of the scene. The ICT officer of the school reviewed a CCTV footage that showed the appellant entering the said dormitory at 9.07pm and coming out at 9.12pm. That at 9.13 pm fire was seen coming out at the back of the dormitory. That after viewing the CCTV footage he drew a sketch plan of the scene. He arrested the appellant. He searched her house and found a 5 litre-plastic containing some liquid. He later prepared an exhibit memo of the ashes, the debris and the liquid and forwarded them to the government chemist for analysis. He prepared another exhibit memo and forwarded the CCTV footage to the Forensic and Acoustic Department at DCI headquarters for analysis. He charged the appellant with the offence. He later reports from the said officers. He also received a report and photographs from the scenes of crime officer. During the hearing he produced the sketch plan as exhibit, P.Exh.10. He produced the exhibit memo for the ashes and debris, for the liquid and for the CCTV footage as exhibits, P.Exh.12, 13 and 14 respectively.
9. The scenes of crime officer PW6 said that he took 25 photographs of the scene which were processed under his supervision. He produced them in court together with his certificate of photographic print as exhibits, P.Exh.1 – 24.
10. The government analyst PW9 testified that he received from SSgt Maneno 2 plastic containers and a khaki envelope containing ash/burnt debris marked A1, A2 and C. He also received a 5-litre plastic jerrican containing purple liquid marked D. He was requested to find out if the exhibits had fire accelerants. He did an analysis and found that the first three exhibits did not have fire accelerants but the purple liquid was methylated spirit which is a flammable liquid and can cause fire. The officer prepared an exhibit memo to that end. During the hearing, he produced the two exhibit memos as exhibits, P.Exh.15(a) and (b) respectively. He also produced his report as exhibit, P.Exh.16. He produced the container with purple liquid as P.Exh.16, the ash containers (A and B) as P.Exh.18 and the khaki envelop with debris as P.Exh.16.
11. A forensic Imaging analyst at DCI Headquarters CI Timothy Bett PW4 testified that he received an exhibit memo together with a flash disk with CCTV footage. He subjected it to a review to ascertain that it was not interfered with and did not find any interference. He developed 20 still images from the footage. They showed a person entering into the dormitory at 2107.22 hours and coming out in a hurry at 2112.52 hours. Then smoke and flame was seen coming from the upper floor of the dormitory and students who seemed in panic were seen running up and down around the dormitory area which was in flames. He prepared a certificate of photographic print. During the hearing he produced a bundle of 20 photographs, the certificate of photographic print, the exhibit memo and the flash disk as exhibits, P.Exh, 2, 3, 4 and 5 respectively.
12. An officer working with the Civil Works Department PW3 testified that he has a diploma in Electrical Engineering from the Technical University of Mombasa. That he was called by the principal of St. John`s Secondary School Kaloleni to estimate the damage of a burnt dormitory. He proceeded to the scene and did an inspection. He did an estimate of Ksh.2,834,796/=. He prepared a report and signed it. He produced his report as exhibit, P.Exh.1.
Defence Case
13. The appellant stated in her defence that she was working at the aforementioned school as a matron. That on the material day at 8.30 pm she received a report that she was required by the principal. She met the Deputy Principal and went to the Principal`s office with Dinah the student (PW2) and Alice. The principal started to question the girl student as to why she was in possession of a cigarette and march box in school. The principal directed that she, the appellant, goes with the girl for her to sleep at her house. That she called Matron May for them to escort the girl to the dormitory for her to pick her basics. They went to the dormitory. They found a student in the dormitory. That while they were there the bell rang at 8.15. She left May and Dinah at the dormitory and went to give the special needs students their medication. After she did so she went back and picked Dinah. She went with her to her house. That when she reached the house, she realized that her phone was missing. She went back to Elgon dormitory where she found the phone. She used it as a torch. She denied that she set the dormitory on fire. She said that she learnt of the fire when she heard students shouting. She said that Elgon 9 and 10 have 3 entry doors. That one can access Elgon 10 through Elgon 9. She denied in cross-examination that she took a shower.
Reasons for conviction by the trial court
14. The trial court held that there was evidence that there was no power outrage and therefore that the cause of the fire was arson and not electrical fault.
15. Further that the circumstantial evidence irresistibly pointed at the appellant as the person who committed the offence in that she was captured in the CCTV footage entering into the dormitory at 2107 hours and came out hurriedly at 2112 hours, which was 5 minutes later. That immediately after she left the dormitory the footage showed fire at the top floor of the dormitory. That the appellant did not explain why it took her 5 minutes to pick her phone from the dormitory, yet it was her evidence that the cubicle she was going to pick the phone from was near the entrance. That if her defence was true it should not have taken her more than 2 minutes to pick the phone. That the delay in coming out invited the conclusion that she was lighting the fire. That the methylated spirit found in her house could have been hidden in her purse that she was carrying when she entered the dormitory. That she confirmed in her defence that there was nobody else in the dormitory before the fire broke out. That the reason she left in a hurry was to be as far away as possible from the scene.
16. The court further said that the appellant did not explain why she took shower more than three times when the dormitory was on fire. That this showed that she was trying to get rid of any evidence that might have linked her to the offence.
17. The appeal was disposed of by way of written submissions of the counsel for the appellant and the counsel for the respondent.
Appellant`s submissions
18. Counsel for the Appellant submitted that there was no report from Kenya Power produced before the court ruling out the cause of the fire as arising from an electrical fault. That without such a report the investigations on the cause of the fire were not complete. That the student Dinah PW2 stated in her evidence that there was power black-out before the students started screaming. That electrical fault could therefore not be ruled out.
19. Counsel submitted that the circumstantial evidence adduced against the appellant had glaring flaws that were inconsistent with the guilt of the appellant. That nobody saw the appellant set the dormitory on fire. That evidence was adduced that the dormitory had 2 other doors. That CCTV footage covering the other 2 doors were not produced in court. That without that evidence it cannot be said that it is the appellant who had the opportunity to set the dorm on fire to the exclusion of any other person. That it cannot be said with certainty that there was nobody else in the dorm except the appellant. That none of the witnesses who testified saw the appellant with something that could light a fire.
20. Counsel submitted that the ICT manager of the institution PW5 testified that the distance from the entrance to the place where the fire started was 60 meters. That to and from the entrance would make it a distance of 120 meters. It was submitted that this is a substantial distance and therefore that the 5 minutes taken by the appellant in the dormitory was not long.
21. It was submitted that the dera dress that the appellant was wearing at the material time though produced as exhibit in the case was not subjected to any forensic analysis to test whether there was any evidence to link the appellant with the offence.
Respondent`s submissions
22. Counsel for the respondent on the other hand submitted that the charge against the appellant was proved beyond reasonable doubt. That the evidence in the case was circumstantial and it pointed to the guilt of the appellant. Reference was made to the case of Rex v Kipkerring Arap Koske & 2 others [1949] where the court held that:
“In order to justify a conviction on circumstantial evidence the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt and the burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is always on the prosecution and never shifts to the accused.”
23. Counsel submitted that it is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:
(i) the circumstances from which an inference of guilty is to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(iii) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else”
23. It was submitted that the test was met in this case.
24. On the defence evidence tendered by the appellant, the respondent submitted that the trial court analysed the evidence and came to the correct finding that the same did not cast doubt on the prosecution evidence.
25. On the cross-appeal the respondent submitted that the section the appellant was charged under attracts a sentence of life imprisonment. That the sentence of Ksh.2 million was unlawful. The respondent urged the court to set aside the sentence and impose life imprisonment.
Analysis and determination
26. This being a first appeal, this court is mandated to analyze and re-evaluate the evidence afresh in line with the holding in the case of Odhiambo v Republic Cr. App No 280 of 2004 (2005) 1 KLR where the Court of Appeal held that: -
“On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour.”
27. I have considered the grounds of appeal, the judgment and record of the trial court and the submissions tendered by the counsels for the Appellant and the respondent. The issue for consideration is whether the charge against the appellant was proved beyond reasonable doubt and if so whether the cross-appeal on the sentence is merited.
28. The appellant was convicted on the ground that the circumstantial evidence adduced in the case irresistibly pointed at her as the person who committed the offence.
29. The law on circumstantial evidence is well established. In Abanga alias Onyango v Republic Cr. App No. 32 of 1990 the Court of Appeal set out the test for circumstantial evidence as follows:
“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”
30. The trial court held that the evidence showed that the cause of the fire was arson and not out of electrical fault. The appellant submitted that there was no report from Kenya Power ruling out electrical fault.
31. The investigating officer Senior Sargent Maneno PW7 testified that they received a report from Kenya Power that the cause of the fire was not an electrical fault. However, no such report was produced in court. There was then no basis for the trial magistrate ruling out the cause of the fire as electrical fault when there was no such a report from Kenya Power or any other expert in that field.
32. The student Dinah testified that there was a power black-out before the students started to scream. Without the evidence of an electrical expert, it is not known what caused the black-out before the fire broke out. I therefore find that the trial court was in error in ruling out electrical fault as the cause of the fire.
33. The appellant was convicted of the offence because she was captured by a CCTV footage entering into the dormitory before the fire started. She stayed in the dormitory for 5 minutes after which she was captured by the CCTV footage coming out of the dormitory in a hurry and shortly after the footage showed fire on the upper storey of the building.
34. It is common ground that the appellant and her colleague matron PW1 escorted Dinah the student to her dormitory to pick her belongings after the principal ordered that she would spend the night at the house of the appellant awaiting a disciplinary case that she was facing.
35. The investigating officer PW7 however dismissed the appellant`s defence that she went back to the dormitory to pick her phone as he was told by Dinah PW2 that the appellant had her two mobile phones when she took her to her house. Therefore, that this was not the reason the appellant returned to the dormitory.
36. Dinah however never told the court whether the appellant had her two mobile phones when she took her to her house. In the absence of such evidence, it remains a possibility that the appellant had forgotten her phone in the dormitory.
37. It was the evidence of matron Santa PW1 that after the appellant went with Dinah to her house, the appellant found her at the dining hall and told her she had forgotten her phone in the dormitory and that she was going to pick it. If the appellant had the intention of burning the dormitory, why would she tell her colleague matron that she was going to the same place she intended to burn?
38. The elephant in the case is that the appellant stayed in the building for 5 minutes before she came out when she had just gone there to pick her phone. The question is what she was doing there in those 5 minutes. The trial magistrate was of the opinion that the appellant was lighting the fire during those minutes.
39. The Appellant in her defence stated that she had worked at the institution for 3 years. The ICT technician PW5 told the court that there were CCTV cameras all over the school compound. That there was one in a dorm opposite Elgon 10 that captured the front entrance to Elgon 10. There was no evidence that the cameras were hidden. The appellant having worked at the school for 3 years definitely knew that there was CCTV coverage outside the front entrance of Elgon 10. In my view she would have been naive to light a fire inside the dorm and come out through a door she knew was well covered by CCTV and not even have her face covered. More so with the same clothes she had worn throughout the day.
40. It was the evidence of the principal PW8 that the CCTV captured the appellant coming out of the dorm with a torch on. That the torch light went on upto her house. Was this the conduct of a person who had committed such a serious crime of setting a school dormitory on fire? To come out of the dormitory with a torch on and go with it on upto her house? Why would the appellant not even attempt to hide herself by putting off the torch light? This despite the fact that there were CCTVs in the school?
41. The trial court took a lot of emphasis on the evidence of Dinah that the Appellant took a bath more than three times when the dormitory was on fire. The court was of the view that the appellant in doing so was trying to erase some evidence. The court however never identified the evidence that the appellant was trying to erase by the mere act of bathing. The court held that the appellant might have been carrying methylated spirit in the purse that she was carrying when she entered the dormitory. This finding was however based on a conjecture rather than on evidence.
42. In view of the foregoing, I find that the circumstantial evidence did not irresistibly point at the appellant as the only person who had the opportunity to commit the offence. The investigations did not rule out electrical fault. The prosecution failed to produce the CCTV footage of the other two doors of the dormitory that was burnt down. More so the conduct of the appellant did not show any guilt mind after the commission of the offence.
43. The upshot is that there was no sufficient evidence to convict the appellant of the offence and consequently the case against her was not proved beyond reasonable doubt. The appellant was entitled to the benefit of doubt. I find the appeal to be merited. The conviction is thereby quashed and the sentence set aside. I order the appellant be set at liberty forthwith unless otherwise lawfully held.
Delivered, dated and signed at GARSEN this 18 th day of September 2026
In the presence of:
Mr. Okanga for Appellant
Mr. Oluoch for Respondent
Appellant – present virtually at Shimo-La-Tewa Women GK Prison
Court Assistant- Ms Rahma
JUDGMENT
1. The appellant was convicted of the offence of arson contrary to section 332(a) of the Penal Code. The particulars of the offence were that on the 3 rd day of January 2024 at St. John’s Girls Secondary School in Kaloleni sub county within Kilifi county she wilfully and unlawfully set fire to Elgon 10 dormitory valued at Ksh.7,548,254/= belonging to St. John`s Girls Secondary School.
2. The appellant was sentenced to pay a fine of Ksh.2,000,000/= in default to serve three years imprisonment. She was aggrieved by the conviction and the sentence and filled the instant appeal. The grounds of appeal are that:
(1) The Learned Magistrate erred in law and fact by making a finding that the prosecution had proved its case beyond reasonable doubt and proceeded to convict the Appellant.
(2) The Learned Magistrate erred in law and fact by failing to analyse the evidence produced by the prosecution and thereby arriving at a wrong decision that the Appellant was guilty as charged.
(3) The Learned Magistrate erred in law and fact by making a finding that the circumstantial evidence tendered before the court was enough to draw an inference of guilt on the part of the Appellant.
(4) The Learned Magistrate erred in law and fact by failing to analysed the evidence tendered by the Appellant, which exonerated the Appellant from the charge facing her.
(5) The Learned Magistrate erred in law and fact by failing to accord the appellant a benefit of doubt despite the evidence tendered by the Appellant.
Case for prosecution
3. The case for the prosecution was that the Appellant was a matron at the aforementioned school. Santa PW1 was a colleague matron. That on the material day a student called Dinah PW2 had a case of indiscipline with the school principal PW8. That in the evening at 8.30 pm the principal called the appellant and instructed her to take the girl with her for her to spend the night at her (appellant`s) house. The appellant took the girl PW2 with her. The appellant called the other two matrons, Santa PW1 and another called Martha and they escorted the girl to her dormitory, Elgon 10, for her to collect her belongings. They went with the girl and she collected her belongings. The appellant went with her to her house.
4. It was the evidence of the girl student Dinah PW2 that upon the appellant taking her to her house the appellant received a phone call and left to collect her (PW2`s) supper and warm bathing water. She locked her in the house. That after some time there was a black out and students started to scream. That the appellant then went back at around 9am while shouting that dormitory 10 was on fire. She told her to remain in the house for her to go and attend to other students. That later the appellant went back to the house before taking students to hospital. She took a shower and changed clothes. That she left and when she returned, she took a shower again. That on that evening she took showers about 3 times which she PW2 did not consider normal given the circumstances.
5. Matron Santa PW1 confirmed that they escorted Dinah PW2 for her to collect her belongings from Elgon 10 dormitory. That after she collected her belongings the child complained that she had not eaten. The appellant took the girl to her house after which she went and found her, PW1, at the dining. The appellant told her that she had forgotten her phone at Elgon dormitory and went to pick it. That the students were at the time in their classes. That after about 15 minutes some students went to her running and told them that Elgon dormitory was on fire. She screamed and members of the public went to assist in putting out the fire.
6. The ICT manager/technician of the school PW5 testified that his duties included maintenance of CCTV infrastructure at the school. That on the evening of the material day at 9.24 pm he was called at the school and informed that there was a fire at the school. He rushed to the school and found Elgon dormitory on fire.
7. It was his evidence that there were 2 cameras mounted facing the said dormitory, one at the front and another at the rear. That on the following day he reviewed the footage and found that the appellant was captured entering Elgon dormitory at 2107 hours and captured coming out of the dorm hurriedly at 2112 hours. Shortly after at 2114 hours fire was seen coming out of the said dormitory. He extracted the footage and stored it in a flash disc which he handed over to the investigating officer.
8. The case was investigated by Senior Sargent Maneno PW9 of the DCI office Kilifi. He said that on 1/2/2024 he travelled to the school with the scenes of crime officer from Malindi PW6. That he collected ashes and debris from the dormitory. The scenes of crime officer took photographs of the scene. The ICT officer of the school reviewed a CCTV footage that showed the appellant entering the said dormitory at 9.07pm and coming out at 9.12pm. That at 9.13 pm fire was seen coming out at the back of the dormitory. That after viewing the CCTV footage he drew a sketch plan of the scene. He arrested the appellant. He searched her house and found a 5 litre-plastic containing some liquid. He later prepared an exhibit memo of the ashes, the debris and the liquid and forwarded them to the government chemist for analysis. He prepared another exhibit memo and forwarded the CCTV footage to the Forensic and Acoustic Department at DCI headquarters for analysis. He charged the appellant with the offence. He later reports from the said officers. He also received a report and photographs from the scenes of crime officer. During the hearing he produced the sketch plan as exhibit, P.Exh.10. He produced the exhibit memo for the ashes and debris, for the liquid and for the CCTV footage as exhibits, P.Exh.12, 13 and 14 respectively.
9. The scenes of crime officer PW6 said that he took 25 photographs of the scene which were processed under his supervision. He produced them in court together with his certificate of photographic print as exhibits, P.Exh.1 – 24.
10. The government analyst PW9 testified that he received from SSgt Maneno 2 plastic containers and a khaki envelope containing ash/burnt debris marked A1, A2 and C. He also received a 5-litre plastic jerrican containing purple liquid marked D. He was requested to find out if the exhibits had fire accelerants. He did an analysis and found that the first three exhibits did not have fire accelerants but the purple liquid was methylated spirit which is a flammable liquid and can cause fire. The officer prepared an exhibit memo to that end. During the hearing, he produced the two exhibit memos as exhibits, P.Exh.15(a) and (b) respectively. He also produced his report as exhibit, P.Exh.16. He produced the container with purple liquid as P.Exh.16, the ash containers (A and B) as P.Exh.18 and the khaki envelop with debris as P.Exh.16.
11. A forensic Imaging analyst at DCI Headquarters CI Timothy Bett PW4 testified that he received an exhibit memo together with a flash disk with CCTV footage. He subjected it to a review to ascertain that it was not interfered with and did not find any interference. He developed 20 still images from the footage. They showed a person entering into the dormitory at 2107.22 hours and coming out in a hurry at 2112.52 hours. Then smoke and flame was seen coming from the upper floor of the dormitory and students who seemed in panic were seen running up and down around the dormitory area which was in flames. He prepared a certificate of photographic print. During the hearing he produced a bundle of 20 photographs, the certificate of photographic print, the exhibit memo and the flash disk as exhibits, P.Exh, 2, 3, 4 and 5 respectively.
12. An officer working with the Civil Works Department PW3 testified that he has a diploma in Electrical Engineering from the Technical University of Mombasa. That he was called by the principal of St. John`s Secondary School Kaloleni to estimate the damage of a burnt dormitory. He proceeded to the scene and did an inspection. He did an estimate of Ksh.2,834,796/=. He prepared a report and signed it. He produced his report as exhibit, P.Exh.1.
Defence Case
13. The appellant stated in her defence that she was working at the aforementioned school as a matron. That on the material day at 8.30 pm she received a report that she was required by the principal. She met the Deputy Principal and went to the Principal`s office with Dinah the student (PW2) and Alice. The principal started to question the girl student as to why she was in possession of a cigarette and march box in school. The principal directed that she, the appellant, goes with the girl for her to sleep at her house. That she called Matron May for them to escort the girl to the dormitory for her to pick her basics. They went to the dormitory. They found a student in the dormitory. That while they were there the bell rang at 8.15. She left May and Dinah at the dormitory and went to give the special needs students their medication. After she did so she went back and picked Dinah. She went with her to her house. That when she reached the house, she realized that her phone was missing. She went back to Elgon dormitory where she found the phone. She used it as a torch. She denied that she set the dormitory on fire. She said that she learnt of the fire when she heard students shouting. She said that Elgon 9 and 10 have 3 entry doors. That one can access Elgon 10 through Elgon 9. She denied in cross-examination that she took a shower.
Reasons for conviction by the trial court
14. The trial court held that there was evidence that there was no power outrage and therefore that the cause of the fire was arson and not electrical fault.
15. Further that the circumstantial evidence irresistibly pointed at the appellant as the person who committed the offence in that she was captured in the CCTV footage entering into the dormitory at 2107 hours and came out hurriedly at 2112 hours, which was 5 minutes later. That immediately after she left the dormitory the footage showed fire at the top floor of the dormitory. That the appellant did not explain why it took her 5 minutes to pick her phone from the dormitory, yet it was her evidence that the cubicle she was going to pick the phone from was near the entrance. That if her defence was true it should not have taken her more than 2 minutes to pick the phone. That the delay in coming out invited the conclusion that she was lighting the fire. That the methylated spirit found in her house could have been hidden in her purse that she was carrying when she entered the dormitory. That she confirmed in her defence that there was nobody else in the dormitory before the fire broke out. That the reason she left in a hurry was to be as far away as possible from the scene.
16. The court further said that the appellant did not explain why she took shower more than three times when the dormitory was on fire. That this showed that she was trying to get rid of any evidence that might have linked her to the offence.
17. The appeal was disposed of by way of written submissions of the counsel for the appellant and the counsel for the respondent.
Appellant`s submissions
18. Counsel for the Appellant submitted that there was no report from Kenya Power produced before the court ruling out the cause of the fire as arising from an electrical fault. That without such a report the investigations on the cause of the fire were not complete. That the student Dinah PW2 stated in her evidence that there was power black-out before the students started screaming. That electrical fault could therefore not be ruled out.
19. Counsel submitted that the circumstantial evidence adduced against the appellant had glaring flaws that were inconsistent with the guilt of the appellant. That nobody saw the appellant set the dormitory on fire. That evidence was adduced that the dormitory had 2 other doors. That CCTV footage covering the other 2 doors were not produced in court. That without that evidence it cannot be said that it is the appellant who had the opportunity to set the dorm on fire to the exclusion of any other person. That it cannot be said with certainty that there was nobody else in the dorm except the appellant. That none of the witnesses who testified saw the appellant with something that could light a fire.
20. Counsel submitted that the ICT manager of the institution PW5 testified that the distance from the entrance to the place where the fire started was 60 meters. That to and from the entrance would make it a distance of 120 meters. It was submitted that this is a substantial distance and therefore that the 5 minutes taken by the appellant in the dormitory was not long.
21. It was submitted that the dera dress that the appellant was wearing at the material time though produced as exhibit in the case was not subjected to any forensic analysis to test whether there was any evidence to link the appellant with the offence.
Respondent`s submissions
22. Counsel for the respondent on the other hand submitted that the charge against the appellant was proved beyond reasonable doubt. That the evidence in the case was circumstantial and it pointed to the guilt of the appellant. Reference was made to the case of Rex v Kipkerring Arap Koske & 2 others [1949] where the court held that:
“In order to justify a conviction on circumstantial evidence the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt and the burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is always on the prosecution and never shifts to the accused.”
23. Counsel submitted that it is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:
(i) the circumstances from which an inference of guilty is to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(iii) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else”
23. It was submitted that the test was met in this case.
24. On the defence evidence tendered by the appellant, the respondent submitted that the trial court analysed the evidence and came to the correct finding that the same did not cast doubt on the prosecution evidence.
25. On the cross-appeal the respondent submitted that the section the appellant was charged under attracts a sentence of life imprisonment. That the sentence of Ksh.2 million was unlawful. The respondent urged the court to set aside the sentence and impose life imprisonment.
Analysis and determination
26. This being a first appeal, this court is mandated to analyze and re-evaluate the evidence afresh in line with the holding in the case of Odhiambo v Republic Cr. App No 280 of 2004 (2005) 1 KLR where the Court of Appeal held that: -
“On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour.”
27. I have considered the grounds of appeal, the judgment and record of the trial court and the submissions tendered by the counsels for the Appellant and the respondent. The issue for consideration is whether the charge against the appellant was proved beyond reasonable doubt and if so whether the cross-appeal on the sentence is merited.
28. The appellant was convicted on the ground that the circumstantial evidence adduced in the case irresistibly pointed at her as the person who committed the offence.
29. The law on circumstantial evidence is well established. In Abanga alias Onyango v Republic Cr. App No. 32 of 1990 the Court of Appeal set out the test for circumstantial evidence as follows:
“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”
30. The trial court held that the evidence showed that the cause of the fire was arson and not out of electrical fault. The appellant submitted that there was no report from Kenya Power ruling out electrical fault.
31. The investigating officer Senior Sargent Maneno PW7 testified that they received a report from Kenya Power that the cause of the fire was not an electrical fault. However, no such report was produced in court. There was then no basis for the trial magistrate ruling out the cause of the fire as electrical fault when there was no such a report from Kenya Power or any other expert in that field.
32. The student Dinah testified that there was a power black-out before the students started to scream. Without the evidence of an electrical expert, it is not known what caused the black-out before the fire broke out. I therefore find that the trial court was in error in ruling out electrical fault as the cause of the fire.
33. The appellant was convicted of the offence because she was captured by a CCTV footage entering into the dormitory before the fire started. She stayed in the dormitory for 5 minutes after which she was captured by the CCTV footage coming out of the dormitory in a hurry and shortly after the footage showed fire on the upper storey of the building.
34. It is common ground that the appellant and her colleague matron PW1 escorted Dinah the student to her dormitory to pick her belongings after the principal ordered that she would spend the night at the house of the appellant awaiting a disciplinary case that she was facing.
35. The investigating officer PW7 however dismissed the appellant`s defence that she went back to the dormitory to pick her phone as he was told by Dinah PW2 that the appellant had her two mobile phones when she took her to her house. Therefore, that this was not the reason the appellant returned to the dormitory.
36. Dinah however never told the court whether the appellant had her two mobile phones when she took her to her house. In the absence of such evidence, it remains a possibility that the appellant had forgotten her phone in the dormitory.
37. It was the evidence of matron Santa PW1 that after the appellant went with Dinah to her house, the appellant found her at the dining hall and told her she had forgotten her phone in the dormitory and that she was going to pick it. If the appellant had the intention of burning the dormitory, why would she tell her colleague matron that she was going to the same place she intended to burn?
38. The elephant in the case is that the appellant stayed in the building for 5 minutes before she came out when she had just gone there to pick her phone. The question is what she was doing there in those 5 minutes. The trial magistrate was of the opinion that the appellant was lighting the fire during those minutes.
39. The Appellant in her defence stated that she had worked at the institution for 3 years. The ICT technician PW5 told the court that there were CCTV cameras all over the school compound. That there was one in a dorm opposite Elgon 10 that captured the front entrance to Elgon 10. There was no evidence that the cameras were hidden. The appellant having worked at the school for 3 years definitely knew that there was CCTV coverage outside the front entrance of Elgon 10. In my view she would have been naive to light a fire inside the dorm and come out through a door she knew was well covered by CCTV and not even have her face covered. More so with the same clothes she had worn throughout the day.
40. It was the evidence of the principal PW8 that the CCTV captured the appellant coming out of the dorm with a torch on. That the torch light went on upto her house. Was this the conduct of a person who had committed such a serious crime of setting a school dormitory on fire? To come out of the dormitory with a torch on and go with it on upto her house? Why would the appellant not even attempt to hide herself by putting off the torch light? This despite the fact that there were CCTVs in the school?
41. The trial court took a lot of emphasis on the evidence of Dinah that the Appellant took a bath more than three times when the dormitory was on fire. The court was of the view that the appellant in doing so was trying to erase some evidence. The court however never identified the evidence that the appellant was trying to erase by the mere act of bathing. The court held that the appellant might have been carrying methylated spirit in the purse that she was carrying when she entered the dormitory. This finding was however based on a conjecture rather than on evidence.
42. In view of the foregoing, I find that the circumstantial evidence did not irresistibly point at the appellant as the only person who had the opportunity to commit the offence. The investigations did not rule out electrical fault. The prosecution failed to produce the CCTV footage of the other two doors of the dormitory that was burnt down. More so the conduct of the appellant did not show any guilt mind after the commission of the offence.
43. The upshot is that there was no sufficient evidence to convict the appellant of the offence and consequently the case against her was not proved beyond reasonable doubt. The appellant was entitled to the benefit of doubt. I find the appeal to be merited. The conviction is thereby quashed and the sentence set aside. I order the appellant be set at liberty forthwith unless otherwise lawfully held.
Delivered, dated and signed at GARSEN this 18 th day of September 2026
In the presence of:
Mr. Okanga for Appellant
Mr. Oluoch for Respondent
Appellant – present virtually at Shimo-La-Tewa Women GK Prison
Court Assistant- Ms Rahma