https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7377

Fankul v Republic (Criminal Case E052 of 2025) [2026] KEHC 7377 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 7377 (KLR) Republic of Kenya In the High Court at Meru Criminal Case E052 of 2025 SM Githinji, J May 28, 2026 Between John Mutabari Fankul Appellant and Republic Respondent Judgment 1.John Mutabari Alias Fankul was charged in the Lower Court with the offence of Arson, contrary to Section 332(a) of the Penal Code. 2.The particulars of this offence being that on the 19th day of August, 2024 at Luria Village, Mitunti Location, in Tigania West Sub-County, within Meru County, the Appellant willfully and unlawfully set fire to a building namely dwelling house valued at Kenya Shillings Four hundred (400,000/-) belonging to Fredrick Munene. 3.The prosecution case is that on 19/8/2024, Fredrick Munene who is the complainant in this case was at his house at about 12.30 Am. He heard someone struggling to open the gate. He went outside and flashed a torch. He saw someone who started to flee. He noted it was Mutabari. He gave a chase but in vain. While going back he was called by his cousin who told him that his house was on fire. The house burnt down. 4.The complainant’s mother, PW-3 in this case, who lives nearby noted of the burning house of his son. She woke her daughter (PW-2) and told her about it. They both screamed for help. By the time people woke up to help, everything had burnt down. 5.The complainant reported the case at Karithiria Police Post. The police visited the scene and witnessed the remain of the burnt house. They took photographs of the scene. On 6/10/2024 the accused was arrested and charged with the offence. 6.The Appellant gave a sworn testimony in his defence. He averred that on the material time he was at his grocery shop. A neighbour by the name Joshua Muriuki called him to help harvesting honey from up the trees. From 8.30 Pm that evening, upto midnight, him and Mwiti were harvesting the said honey. They were paid 1,500/- for the work. The following day he was called by a friend and told complainant’s house was torched. He was called by the Assistant Chief at Chief’s Camp. He told him he was stung by bees. For 2 months he was at home before his arrest. He was not involved in the said arson. 7.From 2015 he had a grudge with the complainant. The complainant had a shelling machine (thresher) which he wanted to sell. The Appellant declined to buy it. The complainant was arrested for it theft, and the Appellant was a witness in the case. 8.The trial Court evaluated the evidence and found the Appellant guilty of it, he was convicted and sentenced to serve 15 years imprisonment. 9.The Appellant dissatisfied with the said conviction and sentence, appealed to this Court on the grounds that:-1.The light used to identify him was not fully analyzed.2.The trial Court misapprehended the evidence adduced and arrived at a wrong conclusion.3.The inconsistencies in the prosecution case were not noted and evaluated.4.The Court failed to warn itself of the danger of relying on the evidence of a single witness in relation to identification at night. 10.The Respondent opposed the appeal, and the same was canvassed by way of Written Submissions. 11.The first Appellate Court has a duty to reconsider, re-evaluate and analyse the evidence afresh and arrive at its own independent conclusions, while bearing in mind that it did not see or hear the witnesses testify. 12.The offence of arson is created under Section 332 of the Penal Code, Cap 63 Laws of Kenya, which provides;“Any person who willfully and unlawfully sets fire to –a.Any building or structure whatever, whether completed or not; orb.Any vessel, whether completed or not; orc.Any stack of cultivated vegetable produce, or mineral or vegetable fuel; ord.A mine, or the workings, fittings or appliances of a mine, is guilty of a felony and is liable to imprisonment for life.” 13.From the foregoing provision, the prosecution to establish the offence of arson must prove the following ingredients beyond reasonable doubt:1.There was a building, structure, vessel, produce or property contemplated under Section 332;2.The property was set on fire;3.The accused person set the fire or participated in setting it;4.The act was willful; and5.The act was unlawful. 14.On the first issue, there’s reliable evidence that the complainant had a wooden house which was burnt down. His evidence, that of PW-2, PW-3, PW-4 and PW-5 is to the said effect. The Appellant herein does not also challenge that fact. I therefore conclude as the Lower Court did that there was a house. 15.The next issue is on what burnt the house or caused the said fire. The evidence of the complainant, of which is circumstantial is not clear on this. PW-1 heard some noise at the gate. He allegedly moved outside. It was at night and he had a torch. He flashed it upon a person who was at the gate. The person ran away. He chased after him but in vain. Upon return he found his house completely razed down by fire. What is noticeable of the evidence is that it’s not clear of how far the house was from the alleged gate. It’s also not clear whether the seen alleged assailant was entering the compound or leaving when he was noted by the complainant. By the time the complainant chased after him the house was not on fire or the fire had not been noticed. The complainant’s evidence does not also reveal that the fire could not have been caused by something else or someone else in his absence. In Joan Chebichii Sawe –vs- Republic, Criminal Appeal No. 2 of 2002, (2003) eKLR, the Court of Appeal held that;1.Circumstantial evidence can found a conviction only where there are no co-existing circumstances weakening the inference of guilt.2.Suspicion, however strong, cannot provide the basis for inferring guilt.3.The burden always remains upon the prosecution. 16.I now proceed to consider whether there’s evidence that it’s the Appellant who set the said house on fire, or rather committed the said offence. 17.The evidence by PW-1, PW-2 and PW-3 shows the incident happened at about 12.30 am, at night. The complainant allegedly saw the Appellant at the gate using torchlight. The evidence does not disclose how far the Appellant was from the alleged gate; it does not also reveal how the gate looked like, to establish whether one could see through it or not, and whether the Appellant was on the inner or outer side of it. It’s also not clear of the kind of torch used, and its light intensity. Disturbing too is that the complainant gave no details on what side of the Appellant he saw (front or back) and what made him exactly know he was the one. The complainant did no describe him at all. He did also not disclose for how long he saw him, and had known him before then. 18.In the case of Maitanyi –vs- Republic (1986) KLR 198. The Court of appeal stated;“Although it is trite Law that fact may be proved by the testimony of a single witness, this does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult”. 19.The Court also added that, the trial Court must inquire into:1.The nature and intensity of the light,2.The position of the light relative to the accused,3.The duration of observation.4.And whether the witness gave a description at the earliest opportunity. 20.In this case it’s vivid that the trial Court did not interrogate the aforesaid conditions. The identification of a suspect must be positive, accurate and free from the possibility of error. I find possibility of existence of an error in identification of the Appellant herein. 21.An accused person can only be convicted on the basis of credible and cogent evidence adduced by the prosecution. Any weakness, inconsistency or improbability in the defence case cannot cure deficiencies in the prosecution evidence. 22.In conclusion, I find that the trial Court erred in find that there was reliable evidence connecting the Appellant to the said offence. There exists reasonable doubts in the prosecution case of which needed be resolved in favour of the Appellant. 23.The conviction cannot therefore subsist in law. It’s hereby quashed as well as the sentence. 24.The Appellant be set free unless otherwise lawfully held. DATED AND DELIVERED AT MERU THIS 28TH DAY OF MAY, 2026.S.M. GITHINJI –JUDGE28/5/2026In the presence of:-Appellant – present at Meru G. K. Prison.Ms. Adhi for the State.