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Elikana & another v Republic (Criminal Appeal E104 of 2023) [2026] KECA 1658 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1658 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E104 of 2023 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 31, 2026 Between Caleb Ogima Elikana 1st Appellant Peter Okindo Oroko 2nd Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Kisii (D.S. Majanja J.) dated 20th May 2019 in HCCRC No.20 of 2018 Criminal Case 20 of 2018 ) Judgment 1.This appeal arises from the judgment of the High Court of Kenya at Kisii (Majanja, J), dated 20th May 2019 in Criminal Case No. 20 of 2018. Caleb Ogima Elikana and Peter Okindo Oroko, the appellants, were arraigned before the High Court charged with murder contrary to section 203 as read with section 204 of the Penal Code, particulars being that on 16th April 2018, at Chitago Sub-location, Boige Location, Etago Sub- County within Kisii County, they jointly murdered [particulars withheld] aged 11-years. They denied the charge and after a trial in which the prosecution called six (6) witnesses and the appellants offered their defence, they were found guilty, convicted and sentenced to thirty (30) years imprisonment. 2.The prosecution’s case, according to Durusila Kemunto Aminga, (PW1) aunt to the deceased, was that the deceased regularly collected milk in the evenings from her home. On the material day, at about 4.30pm, the deceased went to collect milk and left. Later at around 6pm, Isaya Onyango (Nyangweso PW2), the deceased's father, called PW1 to inquire whether the deceased was still at her place, but PW1 told him that the deceased left at about 5pm. PW2 waited in vain. PW2 went in search of the deceased but the search was unsuccessful. The search continued the following morning with the help of villagers. Later that day, PW2 received information that the deceased's body had been found. 3.Douglas Mokoro Osoro, (PW3) a cousin to the deceased, testified that on the material day he was working on his farm when at about 3pm, he saw five people, including the appellants and one David Nyabuto, escorting a child up the uphill. Later at about 6.30pm PW3 saw the appellants going into a nearby thicket where they left the child. He covertly moved closer and heard the child screaming but he did not know that the appellants were killing the child. As the appellants walked away, PW3 overheard the 2nd appellant complaining that he had only received Kshs. 5,000 out of the Ksh. 100,000 paid for the task. PW3 ran away to report the incident but the appellants saw him and the 2nd appellant ran up to PW3, threatened to cut him with a panga but the 1st appellant intervened. The 2nd appellant warned PW3 not to disclose what he had witnessed otherwise the 2nd appellant would kill him. The following day, PW3 joined the search party but since the appellants were following him, he decided to go back home. He decided to write an anonymous note naming the people he had seen with a child and where the child was dumped. PW3 dropped the note at a strategic place hoping that it would be found. 4.PW4, Dr. Steve Onsase Omwoyo, conducted the post-mortem examination on 23rd April 2018; the deceased had a blue cloth tied around the neck, a cut wound on the parietal region of the scalp, skull fracture and inter-parietal bleeding in the brain. He opined that the cause of death was head injury resulting from assault and strangulation. 5.PW5 [particulars withheld] stated that on 17th April 2018, he was playing on the road when he saw people saying that they were looking for the deceased with whom PW5 used to attend school. He saw PW 2, whom he knew as Daddy; PW2 told him to pick up a piece of paper which was on the ground and gave it to PW2. PW6, Police Constable James Michuki, and the investigating officer, received information about the murder; received a briefing from the Officer Commanding Station (OCS) of Etago Police Station, who had already visited the scene and taken the deceased's body to Mortuary and that a handwritten note had been recovered naming the suspects. PW6 investigated the case, recorded statements from witnesses, including PW3, who admitted to have written the note and charged the appellants. 6.Put on their defence, the 1st appellant gave a sworn testimony, and denied committing the offence and called two witnesses. The 1st appellant stated that on the material day he worked at a tea farm from 8am until 6pm; later joined his cousin Shem Songoro(DW4) and several other people at a Kiosk where they had tea until after the 7pm when he went home. He later heard people saying that a child was missing and he went to the home of PW2 where the crowd of people was and later went back home. 7.The 2nd appellant’s defence was that on the material day he went to work in Transamara but returned home at about 3 pm because he was unwell; took medication and slept until the following morning when he heard that his name was on the list of those suspected to have killed the deceased. 8.Mauti Onyango, DW3 testified that on 16th April 2028, at about 6pm, the1st appellant went to his Kiosk where he stayed until after 7pm when he and other customers left, while Shem Songoro Nyagosia’s (DW4) testimony was that on the evening of 16th April 2018, he was at the DW3’s Kiosk; the 1st appellant joined him at the Kiosk where they stayed until 7pm when they left. On the other hand, DW5, a brother to the 2nd appellant, stated that on the material day, he went to work with the 2nd appellant in Transmara and returned home at about 3pm and because the 2nd appellant was unwell, he (the 2nd appellant) did not leave home that day; and finally, Karen Okindo,(DW6), the 2nd appellant’s wife, testified that the 2nd appellant returned from work at 3pm because he was not feeling well; went to sleep and did not leave home that night. 9.Upon considering and evaluating the evidence, the trial court was satisfied that the prosecution had proved the case beyond reasonable doubt, convicted the appellants and sentenced them to thirty (30) years imprisonment. 10.Aggrieved, the appellants lodged this appeal and raised several grounds of appeal, faulting the trial court in: relying on inconclusive circumstantial evidence; failing to properly evaluate the inconsistencies and contradictions in the prosecution's evidence regarding their identification; shifting the burden of proof to them; failing to adequately consider and evaluate the appellants' respective defences and convicting the appellants notwithstanding the prosecution's failure to prove the charge beyond reasonable doubt. 11.The appeal was heard by way of written submissions. At plenary, Ms. Mwalo, learned counsel, appeared for the appellants while Mr. Okeyo, learned prosecution counsel, was present for the respondent. The appellants appeared from prison through video link. Ms. Mwalo relied on her written submissions entirely. 12.Counsel submitted that the trial court erred in convicting the appellants on the basis of weak and inconclusive circumstantial evidence that did not meet the legal threshold, and relied on Rex v. Kipkering Arap Koske & Another [1949] 16 EACA 135, for the proposition that for circumstantial evidence to sustain a conviction, it must form a complete chain so cogent and compelling as to leave no reasonable doubt of the accused's guilt. According to counsel, the prosecution's case was largely founded on the evidence of PW3, whose testimony was inconsistent and incapable of conclusively linking the appellants to the offence; that PW3 had initially identified other persons, namely Nyabuto Omenyi, Dennis Oroko and Martin Nyokangi as the perpetrators, and that the allegation by PW3 that he saw the appellants throw the child in a thicket was speculative and uncorroborated. 13.Counsel further submitted that the trial court failed to properly consider and evaluate the contradictions in the prosecution's evidence, mainly the testimony of PW3; that PW3 initially denied writing a note implicating the appellants but later admitted that he had written the note thereby casting doubt on his credibility which the trial court should have resolve in favour of the appellants; that the trial court shifted the burden of proof requiring the appellants to prove their innocence contrary to the established legal principle that the prosecution bears the burden of proof and cited the decision in Woolmington v. DPP [1935] AC 462, for the proposition that the burden of proving the guilt of an accused person is on the prosecution; that the appellants raised credible alibi defences and called witnesses who testified in their favour on where they were on the material day, but which the prosecution failed to disprove and relied on the cases of Saidi s/o Mwaka Wanga v. Republic [1963] EA 6; Abdi Kinyua Ngeera v Republic [2014] eKLR; Victor Mwendwa Mulinge v Republic [2014] eKLR and Kimotho Kiarie v Republic [1984] eKLR for the proposition that an accused person is entitled to an acquittal where his alibi defence raises reasonable doubt. 14.Counsel went on to submit that the trial court failed to adequately consider the 1st appellant’s defences that PW3 harboured a grudge against him arising from a dispute over iron sheets, while the 2nd appellant contended that he was mistakenly implicated owing to mob justice directed at Nyabuto which the trial court did not consider. 15.Ms. Mwalo again faulted the trial court regarding the reliability of the identification of the appellants by PW3, contending that it was unsafe because the prevailing conditions, including the distance, lighting and obstruction by thickets, were not conducive for a positive identification and cited the case of Abdalla bin Wendo v. R [1953] 20 EACA 166 in support of that submission; that the allegation by PW3 that the appellants threatened him was self-serving and uncorroborated and that the prosecution did not prove the case beyond reasonable doubt thus, counsel urged the Court to quash the convictions and set aside the sentences. 16.In opposition, Mr. Okeyo submitted orally, that the prosecution proved the death and the cause thereof; that the appellants were responsible for the deceased’s death and that they had malice aforethought; that the prosecution proved the case against the appellants beyond reasonable doubt and, therefore, the conviction was safe and the sentence is lawful. 17.This Court is enjoined, in a first appeal, to undertake a fresh and exhaustive examination and reach its own decision on the evidence on record, taking into account that it did not see the witnesses testify and give due allowance for that. (Okeno v Republic [1972] EA 32.) 18.We have considered, re-evaluated and re-analyzed the evidence on record and submissions by counsel for their respective parties’ positions in this appeal. This appeal is against conviction only and, therefore, the two issues for our determination are whether the prosecution proved the offence of murder against the appellants beyond reasonable doubt and whether the circumstantial evidence relied upon met the legal threshold to sustain the conviction. 19.On the first issue, the appellants were charged with murder.Section 203 of the Penal Code defines murder as “the unlawful causing of death of another with malice aforethought.” From that definition, the prosecution was required to prove three ingredients: the death of the deceased and its cause; that the death was unlawful and was caused by the appellants, and that the appellants had malice aforethought in committing the offence. 20.This position was restated by this Court in the case of Chiragu & Another v Republic [2021] KECA 342 (KLR) as follows:“The prosecution in an information of murder has the singular task of proving the following three ingredients in order to secure a conviction; that the death of the deceased occurred; that the death was caused by an unlawful act of commission or omission by the appellant and that the appellant had malice aforethought as he committed the said act.”(See also Antony Ndegwa Ngari v Republic [2014] eKLR.) 21.In this appeal, the death of the deceased and the cause thereof was not in contention either before the trial court or in this appeal. PW2 and PW 6 interacted with the body of the deceased once it was discovered. PW4 conducted the post mortem which confirmed that the deceased had a cloth tied around the neck, a cut wound on the parietal region of the scalp, a skull fracture and inter-parietal bleeding in the brain and opined that the cause of death was a head injury resulting from assault and strangulation. This evidence proved conclusively the death of the deceased and the cause thereof. 22.On whether the appellants were responsible for the deceased’s death, the trial court considered the circumstantial evidence in the testimony of PW3, the fact that PW3 saw the appellants who were well known to him with a child, where they took the child as well as the time PW3 saw the appellants and concluded that PW3 had recognized the appellants and stated as follows:“[21]PW 3 stated that he was related to the 1st accused and that they came from the same area with the 2nd accused hence this case was of recognition of persons well known to him as opposed to the identification of strangers. The 1st accused also confirmed that he was familiar with PW3… Since the incident took place in daylight and the accused and PW3 were known to each other, I am satisfied that the conditions prevailing were conducive for positive identification.[24]PW 6 testified that he searched PW 3’s house and confirmed that the letter had been written on a paper which had been plucked from a book in PW3’s possession. There was no objection to the production of the note or any suggestion that it was not written by PW. PW 3 stated that he wrote it and took it to Nyatuoni where it was picked up. PW 5 who confirmed that PW 3 told him to pick up the note he had left. The veracity of the note is confirmed by the fact that the deceased’s body was found in a thicket. Moreover, even without the handwritten, the evidence of PW 3 establishes that the accused are the one who took the child to the thicket where she was found dead.”The trial court then stated as follows:“[30]From the foregoing, I find that there were no other co-existing circumstances that would weaken the chain of circumstances relied upon by the prosecution to prove that the accused persons killed the deceased. For these reasons, I find and hold that the accused committed the act that inflicted the fatal injuries on the deceased causing her death.” 23.We have reevaluated the evidence and considered it ourselves. The conviction of the appellant was substantially anchored on the circumstantial evidence coupled with evidence of recognition by PW3. 24.The law on circumstantial evidence as the basis for a conviction is settled, with this Court consistently holding that a criminal conviction can be safely founded on circumstantial evidence, provided the circumstances unerringly and irresistibly point to the accused's guilt to the exclusion of all other reasonable hypotheses. For instance, in Abanga alias Onyango v Republic, Criminal Appeal No. 32 of 1990(UR), this Court stated as follows:“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:i.the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;ii.those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;iii.the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else.(See Sawe v Republic [2003] eKLR; Mukhwana v Republic [2026] KECA 188 (KLR)) 25.In that regard, for the Court to find that the appellants are guilty, the inculpatory facts must be incompatible with their innocence and be incapable of explanation upon any other hypothesis than that of their guilt. 26.In this appeal, the inculpatory facts relied upon in convicting the appellants were that the appellants were the last people seen with the deceased alive. The principle of “last seen with” is applied in our courts by virtue of section 111(1) of the Evidence Act which provides as follows:“When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact, especially within the knowledge of such person is upon him: Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether in cross-examination or otherwise, that such circumstances or facts exist, Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt of the accused person in respect of that offence.” 27.As this Court stated in the case of Kimani v Republic [2023] KECA 1390 (KLR), the doctrine of ‘last seen alive’ is based on circumstantial evidence where the law presupposes that the person last seen with the deceased before his/her death is responsible for the death and the accused is expected to provide an explanation as to what happened, while in Moingo & Another v Republic [2022] KECA 6 (KLR), this Court again stated as follows:“The fact that the deceased was last seen in the hands and restraint of the appellants, a prima facie case was established to require the appellants to give a reasonable explanation as to what befell him. Even though the onus of proof in criminal cases always rests squarely on the prosecution at all times, the Last Seen doctrine in the prosecution of murder or culpable homicide cases is that, where the deceased was last seen with the accused, there is a duty placed on the accused to give an explanation relating to how the deceased met his/or her death. In the absence of any explanation, the court is justified in drawing an inference that the accused killed the deceased).” 28.In the present appeal, PW3 saw five people, including the appellants, who were well known to him, with a child; the appellants took the child to a thicket and after spending some time in the thicket, they left without the child. The time was between 5 pm and 6pm. At one time, the appellants engaged PW3 in some conversation and the 2nd appellant even warned PW3 not to disclose what he had witnessed. 29.That same evening it was reported that the deceased was missing. PW3 wrote a note disclosing names of the people, including the appellants, he had seen with a child and where they left the child. Although PW3 did not say that he knew the child the appellants were with, a search at the place PW3 disclosed, led to the discovery of the deceased’s body in a thicket, leading to the inescapable conclusion that the appellants were the last people seen with the deceased when she was alive. For that reason, the appellants had a duty to offer a satisfactory explanation on how the child they were with and, who turned out to be the deceased, met her death, but they did not do so. 30.Having reevaluated the evidence ourselves, we agree that the trial court was justified to conclude, as it did, that there were no other co-existing circumstances that would weaken the chain of circumstances relied upon by the prosecution to prove that the appellants killed the deceased. 31.The appellants raised defences of alibi that they were elsewhere and they could not, therefore, have killed the deceased. The 1st appellant’s case was that on the morning of the material day he went to work up to 6pm in the evening when he went to a kiosk and took tea before returning home at 7 pm. He called DW3, the owner of the kiosk, who supported his claim that he was at the kiosk, and DW4 who also stated that he was at the Kiosk with the 1st appellant until after 7pm. The 2nd appellant also stated that on the material day, he went to work in Transmara and returned home at about 3pm because he was unwell; took medication and slept. His brother DW5, and his wife, DW6, both testified that the 2nd appellant was at home and did not go out. 32.The trial court considered the appellants’ alibi defences but rejected them because the alibi defences were not plausible; there was no reason why PW3 would implicate the appellants and that the defence witnesses’ evidence was naturally expected exonerate the appellants who were relatives. 33.We have reconsidered and reevaluated the alibi defence and the reasons for their rejection. This Court has addressed alibi as a defence to a criminal charge in several decisions. In Kiarie v Republic [1984] eKLR, this Court stated as follows:“An alibi raises a specific defence and an accused person who puts forward an alibi as a defence to a charge preferred against him does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces in the mind of a court a doubt that is not unreasonable.” 34.In Victor Mwendwa Mulinge v Republic [2014] eKLR, this Court again stated that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies with the prosecution. (See also Karanja v Republic [1983] KLR 501) 35.In Adebiyi v S [2016] NGSC 92, the Supreme Court of Nigeria, (Nweze, JSC), observed that a defence of alibi should be raised in good time with sufficient details to allow the prosecution an opportunity to investigate it, though the burden still lies on the prosecution to disprove the alibi beyond reasonable doubt. 36.From the record, the deceased went to collect milk between 4.30pm and 5pm not to be seen alive again. That same late afternoon, PW3 saw the appellants with a child going to a thicket and later left a thicket at about 6pm without the child. The 1st appellant stated that he went to DW3’s Kiosk at about 6pm which was confirmed by DW3 and DW4. However, both DW3 and DW4 did not state that they knew where the 1st appellant was between 4pm and 6pm before he went to the Kiosk. Their evidence did not, therefore, dislodge the evidence of PW3 that he saw the appellants with the child and that they left the thicket at about 6pm without the child. 37.Regarding the evidence of DW5 that the 2nd appellant did not leave home after 3pm, that evidence was also not helpful to the 2nd appellant since DW5 admitted that he did not live in the same house with the 2nd appellant and he could not tell whether or not the 2nd appellant left home after that 3pm. On the other hand, the evidence of DW6 that the 2nd appellant did not leave home was intended to exonerate the 2nd appellant, her husband. Furthermore, the alibi defences were only raised during defence hearing and were thus, an afterthought. We are satisfied that the trial court properly rejected the appellants’ alibi defences. 38.Furthermore, PW3 knew the appellants well; the incident occurred in broad daylight and any contradictions about the timings, were not material as to affect the prosecution’s case.This was not a case of the appellants being merely identified but was one of identification by recognition which is appreciated as “more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.”(See Anjononi & Others v Republic [1980] KLR59; Mukhwana v Republic [2026] KECA 188 (KLR)) 39.The next issue is whether the appellants’ act was actuated by malice aforethought. Section 206 (a) of the Penal Code defines malice aforethought to include, “an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not.” The post mortem report showed that the deceased had a cut wound on the parietal region of the scalp, a skull fracture and inter- parietal bleeding in the brain as well as a cloth around the neck. The cause of death was head injury resulting from assault and strangulation. 40.The appellants took the deceased the thicket where they assault her causing her serious head injuries before strangling her. The gravity of the injuries the appellants caused to the deceased, the weapon used and the place they left her after such grievous injuries, demonstrated they wanted her dead thereby proving malice aforethought beyond reasonable doubt. 41.The upshot is that this appeal lacks merit on both conviction and sentence and we accordingly dismiss it in its entirety. DATED AND DELIVERED AT KISUMU THIS 31ST DAY OF JULY, 2026.ASIKE-MAKHANDIA...........................JUDGE OF APPEALE.C. MWITA...........................JUDGE OF APPEALB. ONGAYA...........................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR