https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1430

Ezekiel v Republic (Criminal Appeal E016 of 2022) [2026] KECA 1430 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1430 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E016 of 2022 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 10, 2026 Between Dennis Rioba Ezekiel Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Kisii (Ndung’u, J.) dated 28{{^th}} July, 2021, in HCCRC No. 27 of 2019) Judgment 1.The appellant, Dennis Rioba Ezekiel, was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence were that on 24th June, 2019 at Mosoreti Village, Keera Sub-Location, Nyamache Sub-County within Kisii County, the appellant and one Douglas Mankone Ezekiel murdered Teresia Kerubo Ezekiel. The appellant denied the information. 2.During the trial, the prosecution called five witnesses. Danvas Omare Omwenga (PW1) testified that on the night of 24th June, 2019, he was at his Uncle Timothy’s house with the deceased and his cousin Deborah. He recalled that Douglas Mankone Ezekiel (hereinafter the co-accused) knocked at the door and because he knew his voice, he opened. The co-accused was a step-brother to the deceased. The co-accused entered and asked the deceased, “Have you taken them?” PW1 explained that the question was whether the deceased had taken the appellant and Ezna to the police. Ezna is the appellant’s and the co-accused's mother. PW1 further recalled that the co-accused asked why the appellant had been left out and then left angrily. He then saw the appellant giving the co-accused a long knife (simi) outside at the verandah, which was lit with electricity light. According to PW1, the co-accused entered the house with the intention of hurting the deceased who was cooking. He intervened and held the co- accused, who cut him on both hands as he struggled with him. The deceased managed to get out of the house. PW1 went outside and saw the appellant in pursuit of the deceased. After 20 minutes, the appellant stabbed the deceased on the back and ran off while the deceased fell down. PW1 narrated that the co- accused then came from the house and also stabbed the deceased on the stomach and head using a knife. As he was screaming, a neighbor (PW3) came and asked for a blanket to help the deceased, but the co-accused emerged from the maize plantation and stabbed the deceased further. The co-accused ran off when more people showed up. The deceased was taken to the hospital for treatment but died the next day. 3.Emily Kwamboka Rioba (PW2) testified that on the fateful day, she entered her compound at 7.00 pm and found the deceased and PW1 in the house. The deceased was her cousin and PW1 is her nephew. The deceased told her to go to the kitchen to cook. At 7:30 pm, she heard PW1 screaming while stating that the co- accused had burnt the deceased. She went outside and found PW1 standing outside bleeding from his hand. She recounted that the co-accused emerged from the main house with a knife in his hands, threatened and questioned why she was screaming. She ran after the deceased, who had run off from the house, and found the appellant stabbing the deceased with a knife. The deceased was walking and screaming while he was being stabbed and then fell at a maize plantation outside the compound. PW2 went on to narrate that when PW3 showed up to assist the deceased, the co-accused emerged, stabbed the deceased on the stomach and hit PW3 on the hand. The co-accused ran off when people came, and the deceased was carried to the road and later taken to the hospital. PW2 affirmed that she identified the co- accused because the light from the electricity was shining all the way to the maize plantation. She stated that the deceased and the appellant had a strained relationship because of a family land dispute. 4.Samwel Nyabuto Onchiri (PW3) testified that on the said day, he came home from work and was in his house when he heard screams at around 7:15 pm. He ran towards where the screams were coming from and found PW1 who informed him that the co- accused had hurt the deceased. He recalled seeing the co- accused sitting on the deceased and punching her head as she lay down. When he pulled the co-accused, he ran towards the maize plantation. He tried raising the deceased to a sitting position and blood spilt onto his hand. PW3 stated that he at first did not see the co-accused with any weapon, but he returned with a sword and hurt him on his hands as he tried shielding the deceased. He also stabbed the deceased in the stomach and ran off. PW3 confirmed that he asked PW2 to bring a blanket and that they took the deceased to the hospital. PW3 further testified that he did not see the appellant and that the home where the deceased was had light from electricity. 5.Dr. Leah Obosy Okworo (PW4) testified on behalf of Dr. Ochieng, who performed the postmortem on the body of the deceased on 10th July, 2019. She testified that the conclusion of the cause of death was multiple stab wounds (six stab wounds to be precise) and abdominal sepsis. 6.Japheth Musyimi (PW5), the investigating officer testified that he instituted investigations after receiving a report on the incident from one Timothy Rioba. He interviewed PW1 who informed him that on the said day, the deceased was cooking in the house while PW2 was in the kitchen preparing ugali. PW5 reiterated the events as narrated by PW1, PW2 and PW3. He further testified that a prior initial arrest of the appellant’s mother by the police after the deceased reported that her house had been demolished had brought bad blood. He stated that the appellant was arrested on 17th July, 2019 at Keroka, while the co-accused was arrested on 24th July, 2019 within the Mombasa Bamburi area. 7.The defence called two witnesses. The appellant gave a sworn statement that he was not at the crime scene, he had not been around for the whole week, and that he was being framed. The co-accused (DW2) testified that he was in the company of Timothy, who informed him that they were to go and kill the deceased over a house that had been built on their plot. He gave Timothy a knife that they were to use. They found the deceased in the house of Josh Nyabori Rioba and beat her up. He and Timothy stabbed the deceased with a knife. According to DW2, the appellant was not present on that night. 8.The trial court delivered judgment in the case on 28th July, 2021. The trial court found that the prosecution had proved all the ingredients of the offence of murder beyond reasonable doubt. The Court found the appellant and the co-accused guilty of murder and sentenced each of them to 35 years’ imprisonment. 9.The appellant is aggrieved and dissatisfied with that decision and therefore preferred this appeal. He prays that the conviction and sentence be set aside and/or quashed, and any such and/or further orders that this Court shall deem just and expedient in the circumstances. The memorandum of appeal dated 23rd November, 2025 sets out the grounds of appeal reproduced verbatim as follows:1.The Learned Judge erred in law by convicting the appellant herein based on insufficient evidence which failed to meet the legal threshold of “proof beyond reasonable doubt” as required in law.2.The Learned Judge erred in law and fact by misdirecting himself on the finding that malice aforethought was proved against the appellant herein as it was weak circumstantial evidence making the conviction unsafe and unlawful.3.The Learned Judge erred in law and fact by holding that identification was proved in light of the poor lighting conditions and lack of corroboration and the fact that no identification parade was conducted.4.The Learned Judge erred in law and fact by convicting the appellant yet the prosecution witnesses gave glaring contradictory testimonies which created reasonable doubt and loopholes in the prosecution case as well as the credibility of its witnesses.5.The Learned Judge erred in law and fact by failing to consider and dismissing the appellant's defence and improperly shifted the onus of proof onto the appellant which duty was on the prosecution.6.The Learned Judge erred in law and in fact by meting out a custodial sentence which was excessive and or too severe in the circumstances of the case and more especially that his alleged participation was minimal.7.The Learned Judge erred in law and in fact by meting out a harsh sentence which did not take into account the mitigating factors of the case and appellant more so to take into account the advanced age of the appellant, lack of a criminal history and remorse.8.The Learned Judge erred in law and in fact by failing to take into consideration the Pre-Sentence report which recommended lenient sentence for the appellant herein in light of the fact that the appellant was convicted alongside his biological brother. 10.When this appeal came up for hearing before us on 27th April, 2026, learned counsel Mr. Magara appeared for the appellant, while learned prosecuting counsel Mr. Okeyo appeared for the respondent. 11.The appellant’s submissions are dated 5th January, 2026. Learned counsel Mr. Magara submitted that no reason was recorded as to why the maker of the postmortem report, Dr. Ochieng, was not called to produce and be cross-examined on the same. That the production of the postmortem report was unprocedural and in violation of Section 33 of the Evidence Act, which allows for the production of hearsay evidence in specific, limited circumstances. That the court’s failure to inquire why the maker of the report could not be called and to record the reasons thereto violated the appellant’s right to a fair trial. Counsel urged this Court to find and hold that the postmortem as produced was inadmissible. 12.Counsel further submitted that apart from the shaky testimony of PW1 and PW2, no evidence proved that the appellant committed the alleged crime. He contended that PW1 and PW2 may have colluded to fix the appellant, who had a dispute with them. That Deborah and Timothy were deliberately not called to corroborate the testimonies of PW1 and PW2. That despite Timothy having been arrested and released, no statement was recorded from him, even though he was adversely mentioned by the co-accused. That PW3, who was present at the scene, did not see the appellant at any given time. Mr. Magara urged that the appellant gave an alibi defence that was not rebutted by the prosecution and was supported by the oral testimony of the co- accused. That the burden of proving the falsity of an accused person’s defence alibi lies with the prosecution. He cited (Victor Mwendwa Mulinge v The Republic [2014] eKLR) for the proposition. That in the absence of any rebuttal by the prosecution, this Court should find and uphold the appellant’s defence as viable. 13.Mr. Magara further urged that the prosecution did not adduce evidence to the effect that the appellant had the intention (mens rea), save that the investigating officer stated that the appellant had mentioned there was a land dispute. That the appellant stated in his defence that he had a cordial relationship with the deceased despite the land dispute that was being handled at home. Counsel submitted that the legal burden of proof never leaves the prosecution’s backyard as was established in Woolmington v DPP [1935] AC 462, in which the House of Lords upheld the presumption of innocence in English criminal law and declaring that the burden of proving a defendant’s guilt beyond a reasonable doubt rests entirely on the prosecution and never shifts to the accused. The appellant maintained that the prosecution failed to prove all the ingredients of the offence of murder against him beyond reasonable doubt. 14.The respondent’s submissions dated 24th April, 2026 were by the learned Senior Assistant Director of Public Prosecutions, Mr. Ong’ang’a. Counsel submitted that the appellant was a person well known to the witnesses, being a close family member. That the appellant never shook the tight evidence of PW1, which clearly placed the appellant at the scene. Counsel urged that the prosecution proved that the appellant had malice aforethought because: the appellant and his then co-accused went to the home where the deceased was, armed and with an intention to attack the deceased; the weapon used was dangerous (knife) and targeted parts of the body that could cause maximum damage; and the nature of injuries (six stab wounds) were so severe as to cause grievous harm leading to death. Counsel submitted that the conviction arrived should hold. Further, that considering the nature of the injuries suffered by the deceased and how the attack was conducted, the sentence was appropriate and lawful in the circumstances. 15.As was correctly found by the learned trial Judge, the fact and cause of death was established by PW4 that the cause of death was multiple stab wounds consistent with the physical act of stabbing the deceased subject of the information of murder that was preferred. 16.PW1’s testimony was vivid and placed the appellant at the scene of the murder, that he saw the appellant giving the co-accused a long knife (simi) outside at the verandah, which was lit with electricity light; he saw the appellant in pursuit of the deceased; and, after 20 minutes, the appellant stabbed the deceased on the back and ran off while the deceased fell. The trial Court did not err in finding that the appellant and the co-accused were persons well known to the prosecution witnesses. The evidence on record is that the appellant was at the scene of the murder and actively participated in killing of the deceased. It was around 7.00pm and the security lights at the veranda were on so that there is no doubt that the appellant was seen and positively recognized as he unlawfully stabbed the deceased. 17.We are satisfied that the prosecution established malice aforethought in terms of section 206 (a) and (b) of the Penal Code because the unlawful acts of the appellant and the co-accused cumulatively amounted to an intention to cause death of or grievous harm to the deceased and the appellant knew that the unlawful act of stabbing and beating the deceased would probably cause the deceased’s death or grievous harm. The chain of events and the conspicuous presence and active participation in the unlawful acts that resulted in the death of the deceased render the appellant’s plea of alibi completely misconceived and untenable, beyond all reasonable doubt. 18.It was submitted for the appellant that the fact of death of the deceased was in doubt since However, the postmortem report had been prepared by one Doctor Ochieng but produced by Doctor Leah Obony and there was no reason recorded as to why the maker of the crucial report was not called to produce the report and to get cross-examined thereon. It was therefore urged for the appellant that the production of the post mortem report was unprocedural and unlawful because it violated section 33 of the Evidence Act on limited circumstances when hearsay evidence could be admissible. 19.Section 33 of the Evidence Act governs the admissibility of statements made by persons who are dead, cannot be found, or are otherwise unavailable to testify. It operates as a vital exception to the rule against hearsay evidence. Under Section 33(b) and (c) of the Act, if a witness (such as a doctor) cannot be found, is dead, or their attendance requires unreasonable delay or expense, their written statements or medical reports can be admitted without them taking the stand. In setting out 8 examples of exceptions to admissibility of hearsay evidence from persons who may not be called as proper witnesses, the operative provision of the section states as follows;“'Statements, written or oral or electronically recorded, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured, without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases.” 20.In Parkar & another v NQ & 2 others (Civil Appeal 139 of 2020) [2023] KECA 908 (KLR) (24 July 2023) (Judgment) Neutral citation: [2023] KECA 908 (KLR) this court held as follows;39.Admissibility of a document is one thing and its probative value quite another. These two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil. As was held by the Supreme Court of India in Ramji Dayawala v Invest Import, AIR 1981 SC 2085, mere production and marking of a document as an exhibit by the court cannot be held to be a due proof of its contents. Its execution and contents have to be proved by admissible evidence, that is, by the evidence of those persons who can vouch for the truth of the facts in issue. But, more important, as stated above, the appellants will have the opportunity to rebut the evidence during the trial.” 21.We note that the appellant has not questioned the probative value of the postmortem report but instead it is submitted for him that the fact of death of the deceased was not in dispute – an issue that was in fact confirmed by the report. The evidence of the postmortem report when considered together with the evidence of the other prosecution witnesses result in a plain conclusion that the prosecution had established all ingredients of the offence of murder against the appellant. We find that no contradictions have been shown from the record to occasion a reasonable doubt and as was submitted for the appellant. 22.PW4 was Leah Obosy Okwaro, a pathologist at the Kisii Referal Hospital. She stated that she was testifying on behalf of Dr. Ochieng who carried out the postmortem and she had known Dr. Ochieng for 16 years because they were in school together, as she knew his handwriting. The record shows that PW4 confirmed that the Dr. Ochieng signed the postmortem report and PW4 produced it as an exhibit. It is material that the learned counsel for the appellant did not object to its production as an exhibit and its admissibility. In the circumstances we find that the objection cannot be taken up and raised belatedly at this appellate stage as a waiver thereby evolved as a bar to doing so. That was, for example, the holding of the Supreme Court of India in R.V.E. Venkatachala Gounder Vs Arulmigu Viswesaraswami & V.P. Temple {(2003) 8 SCC 725] thus;“…The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence….” 23.We are satisfied that if an accused person who is represented by counsel does not object to the production and admissibility of a postmortem report by a doctor other than the maker during the trial, the accused is thereby deemed to have waived that objection and cannot easily raise it on appeal A postmortem report is essentially a public or official document. Appellate courts will therefore strictly disallow objections regarding the mode of proof or admissibility of such document if the defence failed to challenge it at the trial court stage. The rationale is that if the defence had objected at the trial time, the prosecution could have simply called the original doctor who made the report to testify or lay a proper foundation about why the maker is not available to produce and testify within the exceptions in section 33 of the Evidence Act. 24.In any event the appellant cannot approbate and reprobate. While objecting to the report, it is also submitted for the appellant that the report conflicted the evidence of other witnesses in relation to whether the deceased was stabbed in the back, a proposition we have found not to have been established as amounting to contradictory evidence in relation to the testimonies of the other prosecution witnesses. 25.The prosecution evidence on record established that the appellant by his unlawful act of stabbing and hitting the deceased thereby unlawfully caused the death in issue with malice aforethought. All the ingredients of the offence of murder were thereby proved against the appellant. 26.Turning to the sentence, it was stated in the memorandum of appeal that it was harsh. However, no submissions were made for the appellant to justify interference with the sentence of the appellant to 35 years imprisonment as was imposed by the trial Court. We have noted that the appellant was in remand custody since the date of arraignment on 19th July, 2019. The sentence will run effective that date taking into account the period the appellant was held in custody prior to the imposition of the sentence and in accordance with section 333(2) of the Criminal Procedure Code. 27.Accordingly, we find that all the grounds of appeal collapse as the appeal is unmerited, save on the point of the effective date of the imprisonment. The appeal only succeeds to that limited extent, otherwise it is for dismissal in its entirety. DATED AND DELIVERED AT KISUMU THIS 10TH DAY OF JULY, 2026.ASIKE-MAKHANDIAJUDGE OF APPEAL.......................................E. C. MWITAJUDGE OF APPEAL.......................................B. ONGAYA**JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR.