(Being an appeal against the conviction and sentence by Hon. H. Onkwani (SPM) In Kithimani CM’s Court in Criminal SO Case No. E031 of 2023 delivered on 11th August, 2025)
1. The Appellant, Paul Nzevela Kivuva, was initially charged before the Chief Magistrate's Court at Kithimani with rape contrary to Section 3(1)(a)(b)(3) of the Sexual Offences Act No. 3 of 2006, arising from an incident alleged to have occurred on the night of 7th July 2023 at Kathiini Village, Masinga Sub-County, Machakos County. The complainant was Mbula Mwithi Ntheketha (hereinafter 'the deceased'), a 95-year-old woman. An alternative count of committing an indecent act contrary to Section 11(A) of the Sexual Offences Act was also preferred. The charges were read to the Appellant in the language he understood (Swahili) and a plea of not guilty was entered to each charge on 10th July 2023.
2. On 14th December 2023, the prosecution applied to amend the charges. The rape count was substituted with a charge of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. It is noted that there was no second count or alternative counts on the amended charge sheet dated 14/12/2023.
3. The Appellant pleaded not guilty to the manslaughter charge and the matter proceeded to full trial. The prosecution called five witnesses (PW1–PW5). The Appellant gave an unsworn statement and called no witnesses.
4. After hearing and evaluating the evidence of both sides the learned trial Magistrate, Hon. H. Onkwani, found the Appellant guilty of both manslaughter noted as count I and rape noted as count II on 11th August 2025 and sentenced him to 30 years' imprisonment for manslaughter and 10 years' imprisonment for rape.
5. Being aggrieved, the Appellant lodged this appeal on six grounds:”
(i) that the charge sheet was defective;
(ii) that the learned magistrate erred in law and in fact by convicting and sentencing the appellant yet the case was replete with contradictions and inconsistencies;
(iii) that the learned magistrate erred in law and in fact by convicting and sentencing the appellant notwithstanding the fact that the medical evidence relied upon is questionable and therefore inadmissible;
(iv) that the learned magistrate erred in law and in fact by convicting and sentencing the appellant yet the ingredient of the offences were not proved and therefore cases not proved beyond reasonable doubt;
(v) that the learned magistrate erred in law and in fact by disregarding my cogent defence, and
(vi) that the sentence was illegal, harsh and excessive. The Appellant is self-represented.”
Issues for Determination
6. Being the first appellate court, I have reconsidered and evaluated the evidence in the court below while keeping in mind that I did not see or hear the witnesses as did the learned magistrate. I have also considered the grounds of appeal, the record of the lower court, the submissions on record and the law and have identified the following as the principal issues for determination :
(i) Whether the substitution of the rape charge with manslaughter on 14/12/2023 rendered the subsequent rape conviction incompetent;
(ii) Whether the prosecution proved the identity of the Appellant as the perpetrator of the offences charged beyond reasonable doubt; and
(iii) Whether this court ought to uphold the convictions and sentences imposed by the learned magistrate.
Analysis And Findings
(i): Whether the substitution of the rape charge with manslaughter on 14th December, 2023 rendered the subsequent rape conviction incompetent
7. Section 214(1) of the Criminal Procedure Code (Cap 75) empowers a trial court to order the alteration of a charge at any stage before the close of the prosecution’s case, whether by amendment, substitution or addition of a new charge. Where a charge is substituted, the original charge is extinguished and the accused faces only the substituted charge going forward. On 14th December 2023, the prosecution did not merely amend the rape count — it substituted it entirely with manslaughter. The Appellant was rightly called upon to plead afresh to the substituted charge of manslaughter, which he did. The prosecution had the options to add a charge or alter the charges as provided for under Section 214 of the Criminal Procedure Code or to add counts including the creation of alternative counts but chose not to. The result therefore is that the amended charge only left one charge of manslaughter for the accused to answer. The trial court nevertheless proceeded to convict and sentence the Appellant for rape, as count II which offence was no longer on the charge sheet before it. This was a fundamental error of law. A conviction cannot be sustained for an offence that is not on the charge sheet. The rape conviction and the attendant sentence of 10 years therefore cannot stand.
(ii)Whether the offence of manslaughter was proved beyond reasonable doubt
8. For the offence of murder rested mainly on evidence that footprints at the scene were traced to the Appellant’s house where he was found wearing shoes fitting the prints the deceased's grandchildren followed from the scene approximately 500 metres to the Appellant's homestead. PW2 confirmed that the prints led to the Appellant's grandmother's compound, where the Appellant was found wearing shoes similar to the prints. PW2 further observed that blood stains were seen on the Appellant's white trousers. PW4, the investigating officer, stated that the prints indeed matched the shoes found with the Appellant. It is noted that the deceased did not identify the perpetrator as according to her he was wearing a mask. Therefore, as there was no direct evidence, the case against the Appellant rested entirely, on circumstantial evidence.
9. Circumstantial evidence must form a complete chain pointing irresistibly to the accused, and any gaps or alternative explanations must be resolved in favour of the accused person. This was of the finding further reiterated in the case of Pius Arap Maina v Republic (2013) eKLR, where it was held:
“It is gainsaid that the prosecution must prove a criminal charge beyond reasonable doubt. As a corollary, any evidential gaps in the prosecution’s case raising material doubts must be interpreted in favour of the accused.”
………………….
This Court is also alive to the principle in Sawe v Republic (2003) KLR laid down the guiding principles on reliance upon circumstantial evidence. It held that:
“In order to justify 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 guilt. Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.”
10. The court is always cautious that the burden of proof rests entirely on the prosecution and it must prove its case beyond reasonable doubt. It is never the duty of the accused to prove his innocence. In the case of Bakare v State (1987) 1 NWLR (PT 52) 579, the Supreme Court of Nigeria observed:
“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says it does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability.”(emphasis)
11. In this case, PW2 stated that there was a trail of prints leading from the scene to where the Appellant was found. PW5 noted however, that there were patches of grass and sand. PW2 also stated that the prints first led to the nephew and that later a child disclosed that the accused had gone to the grandparent’s house at around 2100-2200 hours although this cannot be verified as the child’s father was not a witness. The Appellant's unsworn statement was that he was in his house throughout that night.
12. Since the evidence against the appellant was purely circumstantial, the issue for determination is whether or not it meets the criteria in the case of Sawe v Republic (Supra) in order for this court to find the charges of murder proved beyond reasonable doubt. It is my finding that in this case, the circumstantial evidence fell short of the standard required to prove the charge of murder. This is for the following reasons: firstly no evidence was adduced to prove that the Appellant was the only person in that vicinity, with shoes that fitted the prints found at the scene of crime. There was therefore no proof beyond reasonable doubt that the shoes that made those prints belonged to the Appellant. Secondly, and more importantly, whereas it was alleged that clothes with blood were found in the house of the Appellant, no forensic evidence was adduced to link or connect that blood to the deceased. The evidence of a forensic investigation would have gone a long way in filling the gap left by the omission to prove that the Appellant was the only person who had the type of shoes that made the trail of prints found at the scene. It is my finding therefore that it was not demonstrated that the inculpatory facts were capable of no other hypothesis other than the guilt of the Appellant. It is for those reasons that I consider the conviction unsafe.
Disposition
13. The appeal herein succeeds both against the conviction for the offence of manslaughter and the offence of rape. The conviction is hereby quashed and the sentences are hereby set aside. The Appellant shall be set at liberty forthwith unless otherwise lawfully held.
Orders accordingly.
Dated and delivered at Machakos virtually this 30th day of June 2026.
In the presence of:
Madam Otieno for the state
The Appellant in person at Kamiti Maximum prison
Court Assistant/Interpreter/ Benson
1. The Appellant, Paul Nzevela Kivuva, was initially charged before the Chief Magistrate's Court at Kithimani with rape contrary to Section 3(1)(a)(b)(3) of the Sexual Offences Act No. 3 of 2006, arising from an incident alleged to have occurred on the night of 7th July 2023 at Kathiini Village, Masinga Sub-County, Machakos County. The complainant was Mbula Mwithi Ntheketha (hereinafter 'the deceased'), a 95-year-old woman. An alternative count of committing an indecent act contrary to Section 11(A) of the Sexual Offences Act was also preferred. The charges were read to the Appellant in the language he understood (Swahili) and a plea of not guilty was entered to each charge on 10th July 2023.
2. On 14th December 2023, the prosecution applied to amend the charges. The rape count was substituted with a charge of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. It is noted that there was no second count or alternative counts on the amended charge sheet dated 14/12/2023.
3. The Appellant pleaded not guilty to the manslaughter charge and the matter proceeded to full trial. The prosecution called five witnesses (PW1–PW5). The Appellant gave an unsworn statement and called no witnesses.
4. After hearing and evaluating the evidence of both sides the learned trial Magistrate, Hon. H. Onkwani, found the Appellant guilty of both manslaughter noted as count I and rape noted as count II on 11th August 2025 and sentenced him to 30 years' imprisonment for manslaughter and 10 years' imprisonment for rape.
5. Being aggrieved, the Appellant lodged this appeal on six grounds:”
(i) that the charge sheet was defective;
(ii) that the learned magistrate erred in law and in fact by convicting and sentencing the appellant yet the case was replete with contradictions and inconsistencies;
(iii) that the learned magistrate erred in law and in fact by convicting and sentencing the appellant notwithstanding the fact that the medical evidence relied upon is questionable and therefore inadmissible;
(iv) that the learned magistrate erred in law and in fact by convicting and sentencing the appellant yet the ingredient of the offences were not proved and therefore cases not proved beyond reasonable doubt;
(v) that the learned magistrate erred in law and in fact by disregarding my cogent defence, and
(vi) that the sentence was illegal, harsh and excessive. The Appellant is self-represented.”
Issues for Determination
6. Being the first appellate court, I have reconsidered and evaluated the evidence in the court below while keeping in mind that I did not see or hear the witnesses as did the learned magistrate. I have also considered the grounds of appeal, the record of the lower court, the submissions on record and the law and have identified the following as the principal issues for determination :
(i) Whether the substitution of the rape charge with manslaughter on 14/12/2023 rendered the subsequent rape conviction incompetent;
(ii) Whether the prosecution proved the identity of the Appellant as the perpetrator of the offences charged beyond reasonable doubt; and
(iii) Whether this court ought to uphold the convictions and sentences imposed by the learned magistrate.
Analysis And Findings
(i): Whether the substitution of the rape charge with manslaughter on 14th December, 2023 rendered the subsequent rape conviction incompetent
7. Section 214(1) of the Criminal Procedure Code (Cap 75) empowers a trial court to order the alteration of a charge at any stage before the close of the prosecution’s case, whether by amendment, substitution or addition of a new charge. Where a charge is substituted, the original charge is extinguished and the accused faces only the substituted charge going forward. On 14th December 2023, the prosecution did not merely amend the rape count — it substituted it entirely with manslaughter. The Appellant was rightly called upon to plead afresh to the substituted charge of manslaughter, which he did. The prosecution had the options to add a charge or alter the charges as provided for under Section 214 of the Criminal Procedure Code or to add counts including the creation of alternative counts but chose not to. The result therefore is that the amended charge only left one charge of manslaughter for the accused to answer. The trial court nevertheless proceeded to convict and sentence the Appellant for rape, as count II which offence was no longer on the charge sheet before it. This was a fundamental error of law. A conviction cannot be sustained for an offence that is not on the charge sheet. The rape conviction and the attendant sentence of 10 years therefore cannot stand.
(ii)Whether the offence of manslaughter was proved beyond reasonable doubt
8. For the offence of murder rested mainly on evidence that footprints at the scene were traced to the Appellant’s house where he was found wearing shoes fitting the prints the deceased's grandchildren followed from the scene approximately 500 metres to the Appellant's homestead. PW2 confirmed that the prints led to the Appellant's grandmother's compound, where the Appellant was found wearing shoes similar to the prints. PW2 further observed that blood stains were seen on the Appellant's white trousers. PW4, the investigating officer, stated that the prints indeed matched the shoes found with the Appellant. It is noted that the deceased did not identify the perpetrator as according to her he was wearing a mask. Therefore, as there was no direct evidence, the case against the Appellant rested entirely, on circumstantial evidence.
9. Circumstantial evidence must form a complete chain pointing irresistibly to the accused, and any gaps or alternative explanations must be resolved in favour of the accused person. This was of the finding further reiterated in the case of Pius Arap Maina v Republic (2013) eKLR, where it was held:
“It is gainsaid that the prosecution must prove a criminal charge beyond reasonable doubt. As a corollary, any evidential gaps in the prosecution’s case raising material doubts must be interpreted in favour of the accused.”
………………….
This Court is also alive to the principle in Sawe v Republic (2003) KLR laid down the guiding principles on reliance upon circumstantial evidence. It held that:
“In order to justify 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 guilt. Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.”
10. The court is always cautious that the burden of proof rests entirely on the prosecution and it must prove its case beyond reasonable doubt. It is never the duty of the accused to prove his innocence. In the case of Bakare v State (1987) 1 NWLR (PT 52) 579, the Supreme Court of Nigeria observed:
“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says it does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability.”(emphasis)
11. In this case, PW2 stated that there was a trail of prints leading from the scene to where the Appellant was found. PW5 noted however, that there were patches of grass and sand. PW2 also stated that the prints first led to the nephew and that later a child disclosed that the accused had gone to the grandparent’s house at around 2100-2200 hours although this cannot be verified as the child’s father was not a witness. The Appellant's unsworn statement was that he was in his house throughout that night.
12. Since the evidence against the appellant was purely circumstantial, the issue for determination is whether or not it meets the criteria in the case of Sawe v Republic (Supra) in order for this court to find the charges of murder proved beyond reasonable doubt. It is my finding that in this case, the circumstantial evidence fell short of the standard required to prove the charge of murder. This is for the following reasons: firstly no evidence was adduced to prove that the Appellant was the only person in that vicinity, with shoes that fitted the prints found at the scene of crime. There was therefore no proof beyond reasonable doubt that the shoes that made those prints belonged to the Appellant. Secondly, and more importantly, whereas it was alleged that clothes with blood were found in the house of the Appellant, no forensic evidence was adduced to link or connect that blood to the deceased. The evidence of a forensic investigation would have gone a long way in filling the gap left by the omission to prove that the Appellant was the only person who had the type of shoes that made the trail of prints found at the scene. It is my finding therefore that it was not demonstrated that the inculpatory facts were capable of no other hypothesis other than the guilt of the Appellant. It is for those reasons that I consider the conviction unsafe.
Disposition
13. The appeal herein succeeds both against the conviction for the offence of manslaughter and the offence of rape. The conviction is hereby quashed and the sentences are hereby set aside. The Appellant shall be set at liberty forthwith unless otherwise lawfully held.
Orders accordingly.
Dated and delivered at Machakos virtually this 30th day of June 2026.
In the presence of:
Madam Otieno for the state
The Appellant in person at Kamiti Maximum prison
Court Assistant/Interpreter/ Benson