Emmanuel Okello O'Kubasu, Abdulrasul Ahmed Lakha, Richard Otieno Kwach
Joan Chebichii Sawe v Republic
Court of Appeal, at Nairobi June 6, 2003
Kwach, Lakha & O’Kubasu JJ A
Criminal Appeal No 2 of 2002
(An appeal from a conviction & sentence in the High Court at
Nairobi (Etyang J) dated 16th March, 2001 in
HCCRC No 61 of 1999)
Evidence – Circumstantial evidence – as distinguished from direct evidence – legal requirements of circumstantial evidence – circumstances justifying conviction on the basis of circumstantial evidence – when inference of guilt points to one to the exclusion of all others – burden of proof in cases of circumstantial evidence - whether strong suspicion can be a basis for inferring guilt.
Evidence – burden of proof– proof of facts which justify the inference of guilt – burden on prosecution.
Evidence – proof of facts – proof of general custom which court intends to rely on – requirement that existence of a custom must be proved in evidence – Evidence Act (cap 80) section 5.
The appellant was convicted, by the High Court, of murder of her husband contrary to section 203 and 204 of the Penal Code (cap 63). The prosecution’s case was that the appellant, with malice aforethought, caused the death of the deceased. The High Court received no eye-witness accounts as there were mo such witnesses.
The prosecution set out to piece together certain events, which it placed before the Court as circumstantial evidence connecting the appellant with the death of the deceased.
The High Court held that the prosecution had proved beyond reasonable doubt that the appellant had started the fire which caused the death of the deceased. The Court also came to the conclusion that the prosecution had proved beyond reasonable doubt that the appellant had caused the death of the deceased with malice aforethought. The appellant lodged an appeal against the conviction on the ground that the judge had erred in law and fact when he found against the weight of the evidence that the appellant caused the death.
1. 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 hypotheses than that of his guilt.
2. Circumstantial evidence can be a basis of a conviction only if there is no other existing circumstances weakening the chain of circumstances relied on.
3. The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused.
4. The existence of any general custom, which the Court intends to rely on must be proved by evidence.
5. The circumstantial evidence in the instant case did not irresistibly point to the appellant to the exclusion of all others so as to justify conviction.
6. The evidence used to convict the appellant did not satisfy the legal requirements of circumstantial evidence to warrant or justify the conviction of the appellant.
7. Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.
Appeal allowed, conviction quashed and sentence set aside.
1. Hassan v Nathan Mwangi Kamau Transporters & 4 others  KLR 457; (1982-88) 1 KAR 946
2. R v Kipkering Arap Koske & another (1949) 16 EACA 135
3. Gichira, Mary Wanjiku v Republic Criminal Appeal No 17 of 1998
1. Penal Code (cap 63) section 203, 204
2. Evidence Act (cap 80) section 5
Dr Githu Muigai for the Appellant