Introduction
1. The Appellant, Woyisi William, was charged in the first count with arson contrary to section 332(a) of the Penal Code in Murang’a Chief Magistrate’s Court. The particulars were that on 10th April 2024, at Kiyu Village, Kagaa Sub-location in Kahuro Sub-County within Murang’a County, he wilfully and unlawfully set fire to a dwelling house, granary and kitchen valued at Kshs.2,000,000, the property of Pharis Karanja.
2. In the alternative, the Appellant was charged with malicious damage to property contrary to section 339(1) of the Penal Code. The particulars were that on the same date and place, he wilfully and unlawfully destroyed the dwelling house, granary and kitchen by means of petrol, the property of Pharis Karanja.
3. The Appellant pleaded not guilty. The prosecution called fourteen witnesses. At the close of the prosecution case, he was placed on his defence and gave an unsworn statement without calling any witness.
4. In a judgment delivered on 27th March 2025, the trial court found the Appellant guilty of both arson and malicious damage to property. Following mitigation, the court sentenced him to fifty years’ imprisonment for arson and ten years’ imprisonment for malicious damage to property. The sentences were ordered to run consecutively.
5. Aggrieved by the convictions and sentences, the Appellant lodged the present appeal.
6. In his original petition of appeal, the Appellant contended that:
a) The prosecution evidence was inconsistent and insufficient to sustain the convictions;
b) His right to a fair trial under article 50 of the constitution was violated because he was not afforded an opportunity to make final submissions;
c) The trial court failed to consider his defence;
d) The trial court failed to consider his mitigation and imposed harsh sentences; and
e) The trial court failed to obtain a pre-sentence report.
7. The Appellant subsequently attached purported amended grounds of appeal to his written submissions. He did not file an application seeking leave to amend the petition, and no leave was granted.
8. Section 350(2) of the Criminal Procedure Code provides that an Appellant shall not be permitted at the hearing to rely on a ground other than those set out in the petition of appeal. Under section 350(2)(iv), save for the limited exception provided under paragraph (i), a petition of appeal may only be amended with leave of the High Court.
9. The Appellant neither sought nor obtained leave to amend his petition. There is also no evidence that he complied with the exceptional procedure permitting amendment without leave, including the requisite written notice to the Registrar and the Director of Public Prosecutions.
10. Written submissions cannot, by themselves, amend a petition of appeal. In Dennis Kibaara v Republic [2019] eKLR, the court declined to consider additional grounds introduced without leave. A similar position was taken in Kamenwa v Republic [2025] KEHC 10829 (KLR).
11. Accordingly, the purported amended grounds are irregularly before the Court and are disregarded. The appeal shall be determined upon the original petition. I nevertheless observe that the original petition sufficiently challenges the adequacy of the prosecution evidence, the Appellant’s fair-trial rights, the treatment of his defence and the legality and severity of the sentences.
12. The Appellant submitted that no witness saw him enter the compound or set the structures on fire. He argued that PW2 merely transported him to a petrol station but did not see him purchase petrol. He further contended that no fingerprints were recovered from the petrol containers and that the telephone number relied upon by the prosecution was not registered in his name.
13. The Appellant maintained that he completed the work assigned to him, received payment and returned to Nairobi. He therefore urged the Court to find that the prosecution evidence was hearsay and did not connect him to the fire.
14. The respondent opposed the appeal. It submitted that the prosecution proved every ingredient of arson. The respondent relied upon the Appellant’s threats, the forensic extraction of text messages, his journey to the petrol station, recovery of petrol containers, the Government Analyst’s report and his subsequent admissions.
15. On sentence, the respondent submitted that arson attracts life imprisonment and that the fifty-year term was lawful and proportionate to the gravity of the offence.
16. This being a first appeal, the Court is required to reconsider and re-evaluate the evidence and draw its own conclusions, bearing in mind that it neither saw nor heard the witnesses testify.
17. In Okeno v Republic [1972] EA 32, the Court of Appeal stated that a first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not sufficient merely to scrutinise the evidence to determine whether there was some evidence supporting the trial court’s findings.
19. The following issues arise:
a) Whether the prosecution proved the offence of arson beyond
reasonable doubt;
b) Whether the electronic evidence and the Appellant’s admissions were properly relied upon;
c) Whether the Appellant’s defence raised a reasonable doubt;
d) Whether the Appellant’s right to a fair trial was violated;
e) Whether the conviction and sentence on the alternative count were lawful; and
f) Whether the sentence for arson should be interfered with.
20. Section 332(a) of the Penal Code provides: “Any person who wilfully and unlawfully sets fire to any building or structure whatever, whether completed or not, is guilty of a felony and is liable to imprisonment for life.”
21. In Kimaku & 4 others v Republic [2024] KEHC 8720 (KLR), the Court identified the ingredients of arson as:
a) Proof of the existence and ownership of a building or structure;
b) Proof that the building or structure was set on fire;
c) Proof that the accused was the person who set it on fire; and
d) Proof that the fire was set wilfully and unlawfully.
22. On the eexistence and ownership of the structures PW1, Emily Wanjiru Karanja, testified that the burnt dwelling was her home. It had been constructed and furnished through the financial contribution of her son, Pharis Karanja, PW9, and her other children.
23. PW1 described the dwelling house, kitchen, granary and the household goods and food supplies kept within them. PW5, PW6 and PW9 confirmed the existence and use of those structures. PW7 had participated in their construction and renovation.
24. Ownership in criminal proceedings may be established through credible oral testimony and does not invariably require production of title documents. The evidence of PW1 and PW9 concerning the existence, possession and ownership of the structures was consistent and was not displaced in cross-examination.
25. I am satisfied that the prosecution proved the existence of the dwelling house, kitchen and granary and their connection to the complainant’s family.
26. On addressing the issue of whether the structures were set on fire PW1 testified that shortly after midnight she was asleep in the house with her caregiver and two children when the caregiver heard maize popping as a result of fire in the granary. The caregiver raised the alarm and assisted PW1, who had limited mobility, to leave the house.
27. PW3 responded to the screams. He cut through the fence to gain access to the compound and assisted in moving PW1 to safety. Neighbours attempted to extinguish the fire, but it spread rapidly.
28. Photographs of the burnt premises were taken, processed, certified and produced by the scenes-of-crime personnel. They depicted the extensive destruction of the dwelling house, kitchen, granary and household property.
29. Two containers containing a liquid suspected to be petrol were recovered near the fence. Samples from the scene and the liquids in the containers were submitted to the Government Chemist.
30. PW12, the Government Analyst, testified that the liquid in the containers was petrol and that petrol residues were detected in samples collected from the scene. Petrol is a flammable accelerant. Her report and accompanying exhibit memo were produced in evidence.
31. That evidence excluded an accidental or natural fire. The recovery of petrol containers and the presence of petrol residues at the point of origin demonstrated that an accelerant had deliberately been introduced.
32. The second ingredient was therefore proved beyond reasonable doubt.
33. Addressing its mind to the issue whether the Court notes that no witness saw the Appellant physically ignite the fire. The prosecution case on this element rested upon electronic evidence, the Appellant’s threats and admissions, his movements before the incident, the forensic evidence and the surrounding circumstances.
34. The absence of an eyewitness is not fatal. An offence may be proved by circumstantial evidence provided the circumstances are firmly established, point irresistibly to the accused and exclude any reasonable hypothesis consistent with innocence.
35. In Kipkering arap Koske & Another v Republic (1949) 16 EACA 135, the court held that inculpatory facts must be incompatible with innocence and incapable of explanation upon any other reasonable hypothesis than guilt. In Sawe v Republic [2003] KLR 364, the Court of Appeal cautioned that suspicion, however strong, cannot supply the basis for inferring guilt unless the circumstantial chain excludes other reasonable hypotheses.
36. The prosecution established that the Appellant had been working at the compound and knew the property and its occupants. A disagreement arose over the landscaping works, following which his engagement was terminated.
37. The Appellant demanded Kshs.5,000 from the complainant. He sent text messages threatening to set the house on fire and burn the complainant’s family unless the money was paid. These were specific threats directed at a known property and its occupants.
38. The telephone line used to send the messages had been registered using PW8’s identity card. PW8 explained that she was then the Appellant’s girlfriend and had registered and handed the line to him. She thereby provided the evidential link between the Appellant and the line.
39. The messages were forensically retrieved from the relevant mobile-phone devices. PW14, a cybercrime forensic expert, explained the extraction process and produced the text messages, recorded conversation, compact disc, chain-of-custody documentation and the certificate required for electronic evidence.
40. Section 78A of the Evidence Act expressly recognises the admissibility of electronic messages and digital material. Sections 106A and 106B prescribe the manner in which electronic records may be produced. In Republic v Barisa Wayu Matuguda [2011] eKLR, the Court emphasised the requirement for a certificate identifying the electronic record, the manner of its production and the device involved.
41. In the present case, the expert identified the devices submitted for examination, the forensic tool used, the material extracted and the chain of custody. He produced the requisite certificate. The Appellant cross-examined him but did not demonstrate alteration, manipulation or any break in the chain of custody.
42. The fact that the line was registered in PW8’s name did not mean that she was its actual user. Registration and use are distinct questions. PW8’s evidence that she registered the line and handed it to the Appellant was corroborated by the content of the communications, the evidence of PW7 and the Appellant’s subsequent request that she deactivate the line to avoid being traced.
43. PW2 testified that on the evening preceding the fire he transported the Appellant to a petrol station. Although PW2 did not see the Appellant purchase petrol, that fact must not be considered in isolation. It acquired probative force when considered alongside the Appellant’s prior threats, the recovery of petrol containers and the scientific confirmation of petrol at the scene.
44. The threatened event thereafter occurred substantially as communicated. The dwelling house, granary and kitchen were deliberately set on fire at night while members of the complainant’s family were present. The correspondence between the threat and its execution was too precise to be coincidental.
45. After the incident, the Appellant told PW7 that he had caused the fire. PW7’s phone had automatically recorded their conversation. The recording was subsequently extracted and produced by the cybercrime expert.
46. PW8 also testified that the Appellant told her he had burnt someone’s house and directed her to deactivate the line because he feared being traced.
47. Section 25A of the Evidence Act principally regulates confessions made to police officers and other persons in authority. It does not bar proof of a voluntary admission made to a private citizen. In Wamboi v Republic [2026] KECA 542 (KLR), the Court of Appeal affirmed that a confession or admission voluntarily made to a private citizen is admissible and may be proved against the maker.
48. PW7 and PW8 were private citizens. There was no suggestion that either induced, coerced or improperly obtained the Appellant’s statements. Their evidence was admissible and corroborated the threatening messages and forensic evidence.
49. The failure to obtain fingerprints from the containers did not invalidate the prosecution case. Fingerprint evidence would have been additional evidence, but it was not the only lawful means of establishing the Appellant’s involvement. The prosecution was not required to prove its case through any predetermined number or category of witnesses.
50. When considered cumulatively, the evidence established the following chain: the Appellant had worked within the compound and knew the property and its occupants; his engagement was terminated following a disagreement; he demanded Kshs.5,000 and threatened to burn the house and the complainant’s family; the threatening messages were traced to a line PW8 had registered and handed to him; he travelled to a petrol station shortly before the fire; petrol containers were recovered near the compound; petrol and its residues were scientifically detected at the scene; the threatened structures were set on fire at night; and the Appellant subsequently admitted the act to PW7 and PW8.
51. These circumstances formed a complete and unbroken chain pointing irresistibly to the Appellant. They excluded any reasonable hypothesis consistent with innocence.
52. The terms “willfully and unlawfully” require proof of a deliberate act undertaken without justification. An accidental or merely negligent fire would not constitute arson.
53. In Kimaku & 4 Others v Republic and Sigei & another v Republic [2025] KEHC 3908 (KLR), the Courts reiterated that the prosecution must prove that the accused deliberately and without lawful justification set the relevant building or structure on fire.
54. The Appellant’s messages expressly threatened the very act that subsequently occurred. he procured an accelerant and set fire to the premises at night. His demand for money and retaliatory threats disclosed motive and intention. The use of petrol demonstrated preparation and excluded accident.
55. There was no lawful justification for setting fire to the complainant’s property. If the Appellant believed money was owed to him, the law provided civil and other lawful processes for recovery, a disputed debt could not justify threatening and endangering the lives of the complainant’s family.
56. I therefore find that the act was both willful and unlawful. All the ingredients of arson were proved beyond reasonable doubt.
57. In his defence, the Appellant stated that he completed the assigned work, received his payment and returned to Nairobi. He maintained that he knew nothing about the fire until his arrest.
58. An accused person bears no obligation to prove his innocence. The burden remained throughout upon the prosecution: Woolmington v Director of Public Prosecutions [1935] AC 462.
59. Nevertheless, the defence must be evaluated against the totality of the prosecution evidence. The Appellant’s account did not explain the threatening messages, PW8’s evidence connecting him to the line, his journey to the petrol station, the recorded admission to PW7 or his statement to PW8 that he had burnt the house.
60. The trial court was entitled to reject that defence, not because it was unsworn or because the Appellant called no witness, but because it was displaced by cogent and consistent evidence. I independently arrive at the same conclusion.
61. On another front, the Appellant complained that he was not given an opportunity to file final submissions. The record shows that the Appellant was informed of the procedure, participated throughout the trial, cross-examined the prosecution witnesses and, upon being placed on his defence under section 211 of the Criminal Procedure Code, elected to give an unsworn statement immediately.
62. After the defence, the court fixed a date for judgment. Neither the prosecution nor the Appellant made final submissions.
63. Final submissions do not constitute evidence. Their function is to assist the court to organise and apply the evidence and law. While parties should ordinarily be afforded an opportunity to address the court, the decisive question is whether the omission occasioned prejudice or a miscarriage of justice.
64. The Appellant has not demonstrated what evidence or defence he was prevented from presenting. He cross-examined all the witnesses and placed his version before the court. The appellate process has further afforded him an opportunity to present detailed written submissions upon the entire record.
65. Viewed in the context of the proceedings as a whole, I am not persuaded that the omission rendered the trial unfair or occasioned a failure of justice. The complaint does not justify quashing an otherwise safe conviction.
66. The charge of malicious damage to property was expressly framed as an alternative to the principal charge of arson. An alternative charge is intended to provide a lawful basis for conviction where the evidence fails to establish the principal offence but proves the lesser or alternative offence. It is not an independent cumulative charge upon which an accused should also be convicted after proof of the principal offence.
67. Having convicted the Appellant of arson, the trial court ought not to have convicted him of malicious damage founded upon the same act and destruction.
68. The second conviction subjected the Appellant to double punishment for the same criminal transaction. It must therefore be quashed.
69. In addition, section 339(1) of the Penal Code prescribes a maximum sentence of five years’ imprisonment for malicious damage to property. The ten-year term imposed by the trial court exceeded the statutory maximum and was unlawful.
70. The respondent’s submission that the ten-year term fell within the legal parameters is incorrect. Both the conviction and sentence on the alternative count must be set aside.
71. Sentencing is primarily a matter of discretion for the trial court. An appellate court will not interfere merely because it might have imposed a different sentence.
72. In Bernard Kimani Gacheru v Republic [2002] eKLR, the Court of Appeal held that interference is justified where the trial court acted upon a wrong principle, overlooked a material factor, considered an irrelevant matter, or imposed a sentence that is manifestly excessive. The principle was recently reaffirmed in Kipkoech alias Chepkwony Sang v Republic [2026] KECA 795 (KLR).
73. Section 332 of the Penal Code provides a maximum sentence of life imprisonment. The fifty-year term was therefore not unlawful merely because of its length. However, the sentencing discretion had to be exercised upon relevant considerations and sound legal principles.
74. The trial court referred to the Appellant’s nationality and questioned whether his conduct reflected how claims were dealt with in Uganda. It also emphasised that he had committed the offence “in a foreign land.” Those considerations were irrelevant. Criminal culpability and punishment cannot be aggravated by an offender’s nationality.
75. The trial court’s reliance upon those considerations entitles this Court to interfere and exercise sentencing discretion afresh.
76. The Appellant was about twenty-five years old, a first offender and had a young family. He sought leniency and stated that he had learnt from his period in custody. These are mitigating factors.
77. They must, however, be balanced against the exceptional aggravating circumstances. The Appellant did not merely destroy unoccupied property. He expressly threatened to set the house on fire and burn the complainant’s family unless he was paid Kshs.5,000.
78. He had worked within the compound. He knew the residence, its layout and the persons ordinarily occupying it. He knew that the complainant’s mother was approximately eighty years old, had limited mobility and required assistance. He also knew that she lived there with her 37-year-old caregiver and two children aged 12 and 8 years.
79. Despite that knowledge, the Appellant procured petrol and set the premises on fire at night while the occupants were asleep. The fire spread rapidly because of the accelerant. The elderly woman had to be pushed and assisted out of the house without her walking aid.
80. The occupants survived because the caregiver heard maize popping in the burning granary, awakened them and raised the alarm. Their survival resulted from timely detection and rescue, not from any restraint, remorse or change of heart by the Appellant.
81. The consequences could easily have involved the loss of four lives, including those of an elderly and mobility-impaired woman and two children. The absence of death or physical injury does not substantially diminish the Appellant’s culpability for the danger he deliberately created.
82. The offence was retaliatory, premeditated and executed with an accelerant. It caused extensive destruction and profound psychological trauma to the occupants, particularly the elderly woman who lost her home, clothing, household goods, food supplies and the security ordinarily associated with one’s residence.
83. In Opiyo & 2 others v Republic [2023] KEHC 1687 (KLR), the High Court recognised that a lengthy determinate custodial sentence may properly be imposed for serious arson. The facts before this Court carry even greater aggravation because the offence was preceded by an express threat to burn the occupants and was executed while vulnerable persons were within the homestead.
84. Having considered the statutory maximum, the Appellant’s mitigation, the objectives of punishment, the need for deterrence and community protection, the vulnerability of the occupants and the potentially fatal consequences, I find that only a modest reduction of the fifty-year term is justified.
85. A sentence of forty-five years’ imprisonment is severe but proportionate to the Appellant’s culpability. It corrects the trial court’s reliance on irrelevant considerations without diminishing the extraordinary gravity of the offence.
86. Section 333(2) of the Criminal Procedure Code requires the sentencing court to take account of time spent in custody before sentence. In Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR, the Court of Appeal held that the period spent in pre-sentence custody must be credited as part of the custodial term.
Disposition
87. The prosecution proved beyond reasonable doubt that the Appellant wilfully and unlawfully set fire to the complainant’s dwelling house, kitchen and granary. The conviction for arson was safe and is affirmed.
88. The conviction on the alternative charge of malicious damage to property was erroneous, and the accompanying ten-year sentence was additionally unlawful.
Orders:
a) The appeal against conviction for arson contrary to section 332(a) of the Penal Code is dismissed. The conviction is upheld.
b) The conviction for malicious damage to property contrary to section 339(1) of the Penal Code is quashed and the ten-year sentence imposed thereon is set aside.
c) The sentence of fifty years’ imprisonment for arson is set aside and substituted with a sentence of forty-five years’ imprisonment.
d) Pursuant to section 333(2) of the Criminal Procedure Code, the forty-five-year sentence shall run from 10th April 2024, being the date the Appellant was first placed in custody.
90. The appeal therefore succeeds only to the extent stated above.
It is so ordered.
1. The Appellant, Woyisi William, was charged in the first count with arson contrary to section 332(a) of the Penal Code in Murang’a Chief Magistrate’s Court. The particulars were that on 10th April 2024, at Kiyu Village, Kagaa Sub-location in Kahuro Sub-County within Murang’a County, he wilfully and unlawfully set fire to a dwelling house, granary and kitchen valued at Kshs.2,000,000, the property of Pharis Karanja.
2. In the alternative, the Appellant was charged with malicious damage to property contrary to section 339(1) of the Penal Code. The particulars were that on the same date and place, he wilfully and unlawfully destroyed the dwelling house, granary and kitchen by means of petrol, the property of Pharis Karanja.
3. The Appellant pleaded not guilty. The prosecution called fourteen witnesses. At the close of the prosecution case, he was placed on his defence and gave an unsworn statement without calling any witness.
4. In a judgment delivered on 27th March 2025, the trial court found the Appellant guilty of both arson and malicious damage to property. Following mitigation, the court sentenced him to fifty years’ imprisonment for arson and ten years’ imprisonment for malicious damage to property. The sentences were ordered to run consecutively.
5. Aggrieved by the convictions and sentences, the Appellant lodged the present appeal.
6. In his original petition of appeal, the Appellant contended that:
a) The prosecution evidence was inconsistent and insufficient to sustain the convictions;
b) His right to a fair trial under article 50 of the constitution was violated because he was not afforded an opportunity to make final submissions;
c) The trial court failed to consider his defence;
d) The trial court failed to consider his mitigation and imposed harsh sentences; and
e) The trial court failed to obtain a pre-sentence report.
7. The Appellant subsequently attached purported amended grounds of appeal to his written submissions. He did not file an application seeking leave to amend the petition, and no leave was granted.
8. Section 350(2) of the Criminal Procedure Code provides that an Appellant shall not be permitted at the hearing to rely on a ground other than those set out in the petition of appeal. Under section 350(2)(iv), save for the limited exception provided under paragraph (i), a petition of appeal may only be amended with leave of the High Court.
9. The Appellant neither sought nor obtained leave to amend his petition. There is also no evidence that he complied with the exceptional procedure permitting amendment without leave, including the requisite written notice to the Registrar and the Director of Public Prosecutions.
10. Written submissions cannot, by themselves, amend a petition of appeal. In Dennis Kibaara v Republic [2019] eKLR, the court declined to consider additional grounds introduced without leave. A similar position was taken in Kamenwa v Republic [2025] KEHC 10829 (KLR).
11. Accordingly, the purported amended grounds are irregularly before the Court and are disregarded. The appeal shall be determined upon the original petition. I nevertheless observe that the original petition sufficiently challenges the adequacy of the prosecution evidence, the Appellant’s fair-trial rights, the treatment of his defence and the legality and severity of the sentences.
12. The Appellant submitted that no witness saw him enter the compound or set the structures on fire. He argued that PW2 merely transported him to a petrol station but did not see him purchase petrol. He further contended that no fingerprints were recovered from the petrol containers and that the telephone number relied upon by the prosecution was not registered in his name.
13. The Appellant maintained that he completed the work assigned to him, received payment and returned to Nairobi. He therefore urged the Court to find that the prosecution evidence was hearsay and did not connect him to the fire.
14. The respondent opposed the appeal. It submitted that the prosecution proved every ingredient of arson. The respondent relied upon the Appellant’s threats, the forensic extraction of text messages, his journey to the petrol station, recovery of petrol containers, the Government Analyst’s report and his subsequent admissions.
15. On sentence, the respondent submitted that arson attracts life imprisonment and that the fifty-year term was lawful and proportionate to the gravity of the offence.
16. This being a first appeal, the Court is required to reconsider and re-evaluate the evidence and draw its own conclusions, bearing in mind that it neither saw nor heard the witnesses testify.
17. In Okeno v Republic [1972] EA 32, the Court of Appeal stated that a first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not sufficient merely to scrutinise the evidence to determine whether there was some evidence supporting the trial court’s findings.
19. The following issues arise:
a) Whether the prosecution proved the offence of arson beyond
reasonable doubt;
b) Whether the electronic evidence and the Appellant’s admissions were properly relied upon;
c) Whether the Appellant’s defence raised a reasonable doubt;
d) Whether the Appellant’s right to a fair trial was violated;
e) Whether the conviction and sentence on the alternative count were lawful; and
f) Whether the sentence for arson should be interfered with.
20. Section 332(a) of the Penal Code provides: “Any person who wilfully and unlawfully sets fire to any building or structure whatever, whether completed or not, is guilty of a felony and is liable to imprisonment for life.”
21. In Kimaku & 4 others v Republic [2024] KEHC 8720 (KLR), the Court identified the ingredients of arson as:
a) Proof of the existence and ownership of a building or structure;
b) Proof that the building or structure was set on fire;
c) Proof that the accused was the person who set it on fire; and
d) Proof that the fire was set wilfully and unlawfully.
22. On the eexistence and ownership of the structures PW1, Emily Wanjiru Karanja, testified that the burnt dwelling was her home. It had been constructed and furnished through the financial contribution of her son, Pharis Karanja, PW9, and her other children.
23. PW1 described the dwelling house, kitchen, granary and the household goods and food supplies kept within them. PW5, PW6 and PW9 confirmed the existence and use of those structures. PW7 had participated in their construction and renovation.
24. Ownership in criminal proceedings may be established through credible oral testimony and does not invariably require production of title documents. The evidence of PW1 and PW9 concerning the existence, possession and ownership of the structures was consistent and was not displaced in cross-examination.
25. I am satisfied that the prosecution proved the existence of the dwelling house, kitchen and granary and their connection to the complainant’s family.
26. On addressing the issue of whether the structures were set on fire PW1 testified that shortly after midnight she was asleep in the house with her caregiver and two children when the caregiver heard maize popping as a result of fire in the granary. The caregiver raised the alarm and assisted PW1, who had limited mobility, to leave the house.
27. PW3 responded to the screams. He cut through the fence to gain access to the compound and assisted in moving PW1 to safety. Neighbours attempted to extinguish the fire, but it spread rapidly.
28. Photographs of the burnt premises were taken, processed, certified and produced by the scenes-of-crime personnel. They depicted the extensive destruction of the dwelling house, kitchen, granary and household property.
29. Two containers containing a liquid suspected to be petrol were recovered near the fence. Samples from the scene and the liquids in the containers were submitted to the Government Chemist.
30. PW12, the Government Analyst, testified that the liquid in the containers was petrol and that petrol residues were detected in samples collected from the scene. Petrol is a flammable accelerant. Her report and accompanying exhibit memo were produced in evidence.
31. That evidence excluded an accidental or natural fire. The recovery of petrol containers and the presence of petrol residues at the point of origin demonstrated that an accelerant had deliberately been introduced.
32. The second ingredient was therefore proved beyond reasonable doubt.
33. Addressing its mind to the issue whether the Court notes that no witness saw the Appellant physically ignite the fire. The prosecution case on this element rested upon electronic evidence, the Appellant’s threats and admissions, his movements before the incident, the forensic evidence and the surrounding circumstances.
34. The absence of an eyewitness is not fatal. An offence may be proved by circumstantial evidence provided the circumstances are firmly established, point irresistibly to the accused and exclude any reasonable hypothesis consistent with innocence.
35. In Kipkering arap Koske & Another v Republic (1949) 16 EACA 135, the court held that inculpatory facts must be incompatible with innocence and incapable of explanation upon any other reasonable hypothesis than guilt. In Sawe v Republic [2003] KLR 364, the Court of Appeal cautioned that suspicion, however strong, cannot supply the basis for inferring guilt unless the circumstantial chain excludes other reasonable hypotheses.
36. The prosecution established that the Appellant had been working at the compound and knew the property and its occupants. A disagreement arose over the landscaping works, following which his engagement was terminated.
37. The Appellant demanded Kshs.5,000 from the complainant. He sent text messages threatening to set the house on fire and burn the complainant’s family unless the money was paid. These were specific threats directed at a known property and its occupants.
38. The telephone line used to send the messages had been registered using PW8’s identity card. PW8 explained that she was then the Appellant’s girlfriend and had registered and handed the line to him. She thereby provided the evidential link between the Appellant and the line.
39. The messages were forensically retrieved from the relevant mobile-phone devices. PW14, a cybercrime forensic expert, explained the extraction process and produced the text messages, recorded conversation, compact disc, chain-of-custody documentation and the certificate required for electronic evidence.
40. Section 78A of the Evidence Act expressly recognises the admissibility of electronic messages and digital material. Sections 106A and 106B prescribe the manner in which electronic records may be produced. In Republic v Barisa Wayu Matuguda [2011] eKLR, the Court emphasised the requirement for a certificate identifying the electronic record, the manner of its production and the device involved.
41. In the present case, the expert identified the devices submitted for examination, the forensic tool used, the material extracted and the chain of custody. He produced the requisite certificate. The Appellant cross-examined him but did not demonstrate alteration, manipulation or any break in the chain of custody.
42. The fact that the line was registered in PW8’s name did not mean that she was its actual user. Registration and use are distinct questions. PW8’s evidence that she registered the line and handed it to the Appellant was corroborated by the content of the communications, the evidence of PW7 and the Appellant’s subsequent request that she deactivate the line to avoid being traced.
43. PW2 testified that on the evening preceding the fire he transported the Appellant to a petrol station. Although PW2 did not see the Appellant purchase petrol, that fact must not be considered in isolation. It acquired probative force when considered alongside the Appellant’s prior threats, the recovery of petrol containers and the scientific confirmation of petrol at the scene.
44. The threatened event thereafter occurred substantially as communicated. The dwelling house, granary and kitchen were deliberately set on fire at night while members of the complainant’s family were present. The correspondence between the threat and its execution was too precise to be coincidental.
45. After the incident, the Appellant told PW7 that he had caused the fire. PW7’s phone had automatically recorded their conversation. The recording was subsequently extracted and produced by the cybercrime expert.
46. PW8 also testified that the Appellant told her he had burnt someone’s house and directed her to deactivate the line because he feared being traced.
47. Section 25A of the Evidence Act principally regulates confessions made to police officers and other persons in authority. It does not bar proof of a voluntary admission made to a private citizen. In Wamboi v Republic [2026] KECA 542 (KLR), the Court of Appeal affirmed that a confession or admission voluntarily made to a private citizen is admissible and may be proved against the maker.
48. PW7 and PW8 were private citizens. There was no suggestion that either induced, coerced or improperly obtained the Appellant’s statements. Their evidence was admissible and corroborated the threatening messages and forensic evidence.
49. The failure to obtain fingerprints from the containers did not invalidate the prosecution case. Fingerprint evidence would have been additional evidence, but it was not the only lawful means of establishing the Appellant’s involvement. The prosecution was not required to prove its case through any predetermined number or category of witnesses.
50. When considered cumulatively, the evidence established the following chain: the Appellant had worked within the compound and knew the property and its occupants; his engagement was terminated following a disagreement; he demanded Kshs.5,000 and threatened to burn the house and the complainant’s family; the threatening messages were traced to a line PW8 had registered and handed to him; he travelled to a petrol station shortly before the fire; petrol containers were recovered near the compound; petrol and its residues were scientifically detected at the scene; the threatened structures were set on fire at night; and the Appellant subsequently admitted the act to PW7 and PW8.
51. These circumstances formed a complete and unbroken chain pointing irresistibly to the Appellant. They excluded any reasonable hypothesis consistent with innocence.
52. The terms “willfully and unlawfully” require proof of a deliberate act undertaken without justification. An accidental or merely negligent fire would not constitute arson.
53. In Kimaku & 4 Others v Republic and Sigei & another v Republic [2025] KEHC 3908 (KLR), the Courts reiterated that the prosecution must prove that the accused deliberately and without lawful justification set the relevant building or structure on fire.
54. The Appellant’s messages expressly threatened the very act that subsequently occurred. he procured an accelerant and set fire to the premises at night. His demand for money and retaliatory threats disclosed motive and intention. The use of petrol demonstrated preparation and excluded accident.
55. There was no lawful justification for setting fire to the complainant’s property. If the Appellant believed money was owed to him, the law provided civil and other lawful processes for recovery, a disputed debt could not justify threatening and endangering the lives of the complainant’s family.
56. I therefore find that the act was both willful and unlawful. All the ingredients of arson were proved beyond reasonable doubt.
57. In his defence, the Appellant stated that he completed the assigned work, received his payment and returned to Nairobi. He maintained that he knew nothing about the fire until his arrest.
58. An accused person bears no obligation to prove his innocence. The burden remained throughout upon the prosecution: Woolmington v Director of Public Prosecutions [1935] AC 462.
59. Nevertheless, the defence must be evaluated against the totality of the prosecution evidence. The Appellant’s account did not explain the threatening messages, PW8’s evidence connecting him to the line, his journey to the petrol station, the recorded admission to PW7 or his statement to PW8 that he had burnt the house.
60. The trial court was entitled to reject that defence, not because it was unsworn or because the Appellant called no witness, but because it was displaced by cogent and consistent evidence. I independently arrive at the same conclusion.
61. On another front, the Appellant complained that he was not given an opportunity to file final submissions. The record shows that the Appellant was informed of the procedure, participated throughout the trial, cross-examined the prosecution witnesses and, upon being placed on his defence under section 211 of the Criminal Procedure Code, elected to give an unsworn statement immediately.
62. After the defence, the court fixed a date for judgment. Neither the prosecution nor the Appellant made final submissions.
63. Final submissions do not constitute evidence. Their function is to assist the court to organise and apply the evidence and law. While parties should ordinarily be afforded an opportunity to address the court, the decisive question is whether the omission occasioned prejudice or a miscarriage of justice.
64. The Appellant has not demonstrated what evidence or defence he was prevented from presenting. He cross-examined all the witnesses and placed his version before the court. The appellate process has further afforded him an opportunity to present detailed written submissions upon the entire record.
65. Viewed in the context of the proceedings as a whole, I am not persuaded that the omission rendered the trial unfair or occasioned a failure of justice. The complaint does not justify quashing an otherwise safe conviction.
66. The charge of malicious damage to property was expressly framed as an alternative to the principal charge of arson. An alternative charge is intended to provide a lawful basis for conviction where the evidence fails to establish the principal offence but proves the lesser or alternative offence. It is not an independent cumulative charge upon which an accused should also be convicted after proof of the principal offence.
67. Having convicted the Appellant of arson, the trial court ought not to have convicted him of malicious damage founded upon the same act and destruction.
68. The second conviction subjected the Appellant to double punishment for the same criminal transaction. It must therefore be quashed.
69. In addition, section 339(1) of the Penal Code prescribes a maximum sentence of five years’ imprisonment for malicious damage to property. The ten-year term imposed by the trial court exceeded the statutory maximum and was unlawful.
70. The respondent’s submission that the ten-year term fell within the legal parameters is incorrect. Both the conviction and sentence on the alternative count must be set aside.
71. Sentencing is primarily a matter of discretion for the trial court. An appellate court will not interfere merely because it might have imposed a different sentence.
72. In Bernard Kimani Gacheru v Republic [2002] eKLR, the Court of Appeal held that interference is justified where the trial court acted upon a wrong principle, overlooked a material factor, considered an irrelevant matter, or imposed a sentence that is manifestly excessive. The principle was recently reaffirmed in Kipkoech alias Chepkwony Sang v Republic [2026] KECA 795 (KLR).
73. Section 332 of the Penal Code provides a maximum sentence of life imprisonment. The fifty-year term was therefore not unlawful merely because of its length. However, the sentencing discretion had to be exercised upon relevant considerations and sound legal principles.
74. The trial court referred to the Appellant’s nationality and questioned whether his conduct reflected how claims were dealt with in Uganda. It also emphasised that he had committed the offence “in a foreign land.” Those considerations were irrelevant. Criminal culpability and punishment cannot be aggravated by an offender’s nationality.
75. The trial court’s reliance upon those considerations entitles this Court to interfere and exercise sentencing discretion afresh.
76. The Appellant was about twenty-five years old, a first offender and had a young family. He sought leniency and stated that he had learnt from his period in custody. These are mitigating factors.
77. They must, however, be balanced against the exceptional aggravating circumstances. The Appellant did not merely destroy unoccupied property. He expressly threatened to set the house on fire and burn the complainant’s family unless he was paid Kshs.5,000.
78. He had worked within the compound. He knew the residence, its layout and the persons ordinarily occupying it. He knew that the complainant’s mother was approximately eighty years old, had limited mobility and required assistance. He also knew that she lived there with her 37-year-old caregiver and two children aged 12 and 8 years.
79. Despite that knowledge, the Appellant procured petrol and set the premises on fire at night while the occupants were asleep. The fire spread rapidly because of the accelerant. The elderly woman had to be pushed and assisted out of the house without her walking aid.
80. The occupants survived because the caregiver heard maize popping in the burning granary, awakened them and raised the alarm. Their survival resulted from timely detection and rescue, not from any restraint, remorse or change of heart by the Appellant.
81. The consequences could easily have involved the loss of four lives, including those of an elderly and mobility-impaired woman and two children. The absence of death or physical injury does not substantially diminish the Appellant’s culpability for the danger he deliberately created.
82. The offence was retaliatory, premeditated and executed with an accelerant. It caused extensive destruction and profound psychological trauma to the occupants, particularly the elderly woman who lost her home, clothing, household goods, food supplies and the security ordinarily associated with one’s residence.
83. In Opiyo & 2 others v Republic [2023] KEHC 1687 (KLR), the High Court recognised that a lengthy determinate custodial sentence may properly be imposed for serious arson. The facts before this Court carry even greater aggravation because the offence was preceded by an express threat to burn the occupants and was executed while vulnerable persons were within the homestead.
84. Having considered the statutory maximum, the Appellant’s mitigation, the objectives of punishment, the need for deterrence and community protection, the vulnerability of the occupants and the potentially fatal consequences, I find that only a modest reduction of the fifty-year term is justified.
85. A sentence of forty-five years’ imprisonment is severe but proportionate to the Appellant’s culpability. It corrects the trial court’s reliance on irrelevant considerations without diminishing the extraordinary gravity of the offence.
86. Section 333(2) of the Criminal Procedure Code requires the sentencing court to take account of time spent in custody before sentence. In Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR, the Court of Appeal held that the period spent in pre-sentence custody must be credited as part of the custodial term.
Disposition
87. The prosecution proved beyond reasonable doubt that the Appellant wilfully and unlawfully set fire to the complainant’s dwelling house, kitchen and granary. The conviction for arson was safe and is affirmed.
88. The conviction on the alternative charge of malicious damage to property was erroneous, and the accompanying ten-year sentence was additionally unlawful.
Orders:
a) The appeal against conviction for arson contrary to section 332(a) of the Penal Code is dismissed. The conviction is upheld.
b) The conviction for malicious damage to property contrary to section 339(1) of the Penal Code is quashed and the ten-year sentence imposed thereon is set aside.
c) The sentence of fifty years’ imprisonment for arson is set aside and substituted with a sentence of forty-five years’ imprisonment.
d) Pursuant to section 333(2) of the Criminal Procedure Code, the forty-five-year sentence shall run from 10th April 2024, being the date the Appellant was first placed in custody.
90. The appeal therefore succeeds only to the extent stated above.
It is so ordered.