https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11826

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG’A** **CRIMINAL APPEAL NO. E043 OF 2022** **ROBERT GIKONYO IRUNGU............................................APPELLANT** **VERSUS** **REPUBLIC..............................................................................RESPONDENT** ***(Being an appeal from the Judgment of Hon. P. N. Maina (CM) delivered on 17th August 2022 in Murang’a CMC No. 1192 of 2011)*** **JUDGMENT** 1. The Appellant herein, was charged with the offence of arson contrary to Section 332(a) of the Penal Code. The particulars were that on the 7th day of November 2021 at around 20.00hrs in Kambwe area, Murang’a County, he willfully and unlawfully set fire to a building valued at Kshs. 3,000,000 belonging to Mary Muthoni Wanjohi. 2. After a full trial, the Appellant was convicted of the offence and sentenced to fourteen (14) years’ imprisonment. 3. Aggrieved by both the conviction and sentence, he moved to this court on appeal. **The Prosecution’s Case** 1. PW1, was the complainant herein. She testified that she is the owner of a block of twenty-three (23) rental houses situated at Mumbi, Kambwe area. She identified the Appellant as her tenant who had leased a single room within the said block. She noted that she had no prior grievances with the Appellant 2. She testified that on the 7th November 2021, at around 1:00 PM, while she was in Thika town she received a phone call informing her that her rental premises were on fire. She immediately aborted her journey to Nairobi and returned to the site. She found six (6) houses, consisting of five single rooms and one double room completely burnt. She estimated the total value of the damage to the building at Kshs. 3,000,000. 3. She further stated that the fire appeared to have originated from the room occupied by the Appellant, where it caught the soft board ceiling and spread rapidly to the adjacent units. She reported the incident to the police the following day, leading to a visit by officers who took photographs of the scene; these photographs were subsequently produced as PMFI-1 (a)-(j). 4. PW2, was a tenant residing in the same rental block as the Appellant. He told the court that on Sunday, 7th November 2021, he was at his residence. At around 9:00 PM he went out to look for supper. He met the Appellant, who appeared visibly annoyed and speaking to himself. PW2 did not engage the Appellant then, but on his way back to his own house he saw the Appellant entering his own house. 5. PW2’ later heard another neighbour saying that the Appellant had set his house on fire prompting PW2 to rush out of his house. On getting out he found the Appellant and one Peter (PW3) attempting to extinguish the flames with water. The fire was eventually put off but by then five houses had been burnt. He stated that the fire started at the Appellant’s room and he was the first to make attempts at putting it off.PW2 further identified photographs of the scene, produced as PMFI 1 (a)-(j). 6. Under cross-examination, PW2 stated that the fire commenced in the Appellant’s house mere moments after the Appellant had entered. 7. PW3, was also a resident of the same block of houses. He had lived there 3- 4 months prior to the incident as a neighbour to the Appellant. He told the court that on the night of 7th November 2021, at around 10:00 PM, he was awaken by the sound of a motor cycle. He then heard the Appellant talking to himself, uttering the words, *"...who would be left at the face of the earth"… That he had lit a matchbox and the fire was spreading”.* He got out of the house and found the fire spreading fast. Under cross-examination, he stated that the Appellant was outside his house screaming as the fire erupted. He dismissed the Appellant’s suggestion that the neighbours were framing him. 8. PW4, was the next witness. He corroborated the testimonies of PW2 and PW3. 9. PW5, was the Investigating Officer. He told the court that the complainant visited the station to report that her six rental houses at plot no. 1284, Kambwe area, had been set on fire by one of her tenants, namely the Appellant. In the course of his duties, he liaised with the Scene of Crime Officer, IP Virginia Wanjiku and together they visited the scene. He stated that six houses had been razed down. He testified that the second room in the block belonged to the suspect (the Appellant), while the third was occupied by Alex Maina (PW4) and the fourth by Peter Irungu (PW3). During the visit, IP Virginia took twelve (12) photographs, providing both overview and close-up perspectives of the damage, which were produced as MFI 1 (a)-(j). The witness further testified that he collected samples of charcoal and ashes from the debris for forensic analysis, and forwarded them to the Government Chemist under an exhibit memo produced as P MFI 2. 10. He produced a Government Analyst report (MFI 3), dated 24th December 2021 and signed by Doris Oduma Onyango, which conclusively found that no accelerant was used to ignite the fire. He stated that on the evening of 9th November 2021, the Appellant presented himself at the Murang’a Police Station, where he was arrested and subsequently charged. charged. **The Defence Case** 1. The Appellant testified that on the 7th November 2021, he had been at work until the evening, after which he stopped at a local bar to consume some beers. It was his testimony that as he approached the gate of the rental plot at around 10:00 PM, he observed smoke and fire from a distance. 2. He stated that upon reaching the premises, he found his neighbours were not in their houses. He stated that he was the one who raised the alarm by screaming and that he actively participated in attempting to extinguish the flames. He further testified that he personally contacted the fire brigade services, who arrived and eventually suppressed the fire. 3. The Appellant maintained that the fire had originated near his room resulting in the total destruction of all his personal belongings. He denied the charge of arson in its entirety, asserting that he was being falsely accused and framed by his neighbours. 4. He concluded his testimony by stating that he later presented himself at the police station, leading to his arrest. The Appellant did not call any witness. **Petition of Appeal** 1. The Appeal is based on the following grounds: 2. *THAT, the learned trial court's magistrate erred in law by misapprehending evidence and relying on contradictory witness testimony without proper scrutiny, resulting in an unsafe conviction.* 3. *THAT, the trial magistrate erred in law by relying on hearsay, alleged verbal utterances and uncorroborated witness testimonies, contrary to established principles of evidence.* 4. *THAT, the learned trial magistrate erred in law by ignoring the Appellant's jurisdictional objection and proceeding with the trial without first determining the same, thereby occasioning a fatal procedural irregularity.* 5. *THAT, the learned trial magistrate erred in law and fact by failing to inform the Appellant of his constitutional right to legal representation under Article 50(2)(g) of the Constitution, thereby rendering the entire proceedings a nullity.* 6. *THAT, the learned trial magistrate erred in law by imposing an excessive, harsh, and disproportionate sentence that failed to consider statutory guidance, mitigating factors and the principles of reformative objectives of sentencing.* 7. The Appeal proceeded by way of written submissions. **The Appellant’s Submissions** 1. It is the Appellant’s contention that the prosecution’s case was built on suspicion, conjecture and alleged admissions, rather than direct, cogent evidence. 2. On the first and second grounds concerning the evaluation of evidence, the Appellant argues that the trial magistrate erred by relying on hearsay and uncorroborated verbal utterances. He submits that the alleged statements, to the effect that he had lit a matchstick or that his house had exploded into fire were neither recorded nor produced as a confession in strict compliance with Section 25A of the Evidence Act. Relying on the case of ***Musili Tulo v Republic (2014) eKLR****,* he contends that such informal admissions are legally inadmissible. Further, he points to the Government Analyst’s Report (PMFI-3), which found no accelerant was used, was a scientific fact that creates reasonable doubt regarding the allegation of wilful arson. 3. On the third ground, the Appellant submits that the trial court committed a fatal procedural error by failing to determine a jurisdictional objection raised during the proceedings. Invoking the principle in ***Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (1989) KLR 1.*** Heargues that jurisdiction is everything, and a court proceeding without resolving such a challenge renders its final judgment a nullity. 4. On the fourth ground, the Appellant asserts that his constitutional right to legal representation under Article 50(2)(g) was violated. He contends that the record is silent on whether the court informed him of this right or the availability of State-funded legal aid under Article 50(2)(h), especially given the gravity of a charge carrying a potential life sentence. He cited ***Chacha Mwita v Republic (2019) eKLR*** to emphasize that this is a positive, proactive obligation of the court. 5. Finally, the Appellant challenges the 14-year sentence as being excessive and disproportionate. He argues that the trial court failed to consider his personal circumstances or the principles of reformative justice as set out in ***Francis Karioko Muruatetu & another v Republic (2017) eKLR*** and the Judiciary Sentencing Policy Guidelines. **The Respondent’s Submissions** 1. The Respondent counsel filed his submissions on 19th January 2026, opposing the appeal. The Respondent submits that the prosecution proved the charge of arson beyond reasonable doubt as the witnesses (PW1–PW4) were consistent on the essential ingredients of the offence. 2. Countering the allegation of hearsay, the Respondent maintains that the prosecution witnesses testified to matters within their personal knowledge. It is submitted that PW2, PW3, and PW4, as fellow tenants, gave direct evidence of seeing the Appellant shortly before the fire and hearing his monologue and subsequent admission regarding the lighting the matchstick. 3. On the issue of jurisdiction, the Respondent argues that the Appellant’s claim is misleading and a mere afterthought. They submit that the Appellant did not raise a substantiated jurisdictional objection during the trial and that the offence occurred within the territorial and legal jurisdiction of the subordinate court. 4. Regarding the right to counsel, the Respondent contends that while the Constitution guarantees the right to a fair trial, State-funded legal representation is not automatic in all criminal cases. They argue the trial was fair and participatory, noting that the Appellant understood the charges and actively cross-examined the witnesses. 5. Lastly, the Respondent defends the sentence as being legal and reasonable. It is submitted that arson is a grave offence involving the destruction of property and potential loss of life, and thus the 14-year term was appropriate to deter such conduct. The Respondent urges this court to find that the conviction and sentence were proper and to dismiss the appeal for lack of merit. **Analysis and Determination** 1. This being a first appeal, this Court is under a duty to subject the entire evidence tendered before the trial court to a fresh and exhaustive re-evaluation and draw its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. The principles governing a first appellate court were succinctly stated by the Court of Appeal in ***Okeno v Republic [1972] EA 32***, and reiterated in numerous subsequent decisions of the Kenyan courts. 2. Having considered the record of appeal, the grounds of appeal and the rival submissions, the issues that arise for determination are: a). Whether the prosecution proved the offence of arson beyond reasonable doubt; b). Whether the conviction was founded on admissible and reliable evidence; c). Whether the Appellant's constitutional right to a fair trial was infringed; d). Whether the sentence imposed was lawful and appropriate. *Whether the offence of arson was proved beyond reasonable doubt* 1. The Appellant was charged under Section 332(a) of the Penal Code. To sustain a conviction for arson, the prosecution must prove the following: i). That the building complained of was destroyed or damaged by fire; ii). That the fire was willfully and unlawfully caused; and iii). That the Appellant was the person responsible for setting the fire. 1. There is no dispute regarding the first ingredient. PW1, PW2, PW3, and PW5 consistently testified that six rental units were destroyed by fire on the material night. The photographic evidence produced before the trial court corroborated that fact. The Appellant equally admitted that the houses were burnt. Accordingly, the occurrence of the fire and the destruction occasioned thereby, was proved. *Whether the Appellant willfully and unlawfully caused the fire.* 1. The prosecution case was substantially circumstantial. No witness testified to having actually seen the Appellant ignite the fire. The conviction therefore rested upon the surrounding circumstances, and the alleged utterances attributed to the Appellant. 2. The principles governing reliance on circumstantial evidence are now well settled. In ***Sawe v Republic [2003] KLR 364***, the Court of Appeal held that before a conviction can be founded on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. The Court further emphasized that suspicion, however strong, cannot provide the basis for a criminal conviction. 3. Similar principles were reiterated in ***Abanga alias Onyango v Republic Cr. App. No. 32 of 1990 (UR)***where the Court of Appeal stated that the prosecution must establish; circumstances from which an inference of guilt may be drawn; that those circumstances are of a definite tendency pointing towards the guilt of the accused; and finally, that the circumstances cumulatively form a complete chain leaving no escape from the conclusion that the offence was committed by the accused and no one else. 4. From the evidence on record, PW2 testified that shortly before the fire, he saw the Appellant enter his house while appearing annoyed. PW3 and PW4 similarly stated that they saw the Appellant shortly before the fire broke out. The evidence further established that the fire originated from the Appellant's room before spreading through the soft board ceiling to neighbouring rooms. The Appellant himself admitted being present at the scene shortly before the fire and that his own room was also destroyed. His explanation was that he found the fire already burning upon arrival. 5. The trial court was therefore confronted with two competing versions. It accepted the prosecution's version after evaluating the demeanour and consistency of the witnesses. This Court has carefully reconsidered that evidence. 6. The prosecution witnesses were independent tenants occupying separate houses. Their evidence was substantially consistent on material particulars, namely that: The Appellant arrived shortly before the fire; the fire started from his house; and the fire spread almost immediately to adjoining houses. All of them testified that they had no previous disagreements with the Appellant. 7. Although none witnessed the actual lighting of the fire, the cumulative circumstances strongly pointed to the Appellant as the author of the fire. The Appellant's defence did not satisfactorily explain how a fire could originate inside his own room, moments after he entered it. 8. The Government Analyst's report indicating that no accelerant was detected does not exonerate the Appellant. Section 332(a) of the Penal Code does not require proof that petrol, kerosene or any chemical accelerant was used. Fire may be deliberately started using ordinary combustible materials or an open flame. The absence of accelerants merely excluded one possible method of ignition, but it did not negate deliberate human agency. *Whether the conviction rested upon admissible evidence* 1. The Appellant submitted that the trial court relied on inadmissible confessions contrary to Section 25A of the Evidence Act. Section 25A of the Evidence Act renders inadmissible any confession unless it is made before a magistrate or a police officer of or above the rank prescribed by law. In ***Musili Tulo vs R*** (supra),the Court of Appeal emphasized that any confession outside the requirements of Section 25A of the Evidence Act, is inadmissible. 2. PW3 and PW4 testified that they heard the Appellant utter words to the effect that he had lit a matchstick which ignited the mattress. Those statements were not recorded in accordance with Section 25A. Consequently, to the extent that the trial magistrate relied upon those alleged admissions as confessions, such reliance would have been erroneous. 3. However, the exclusion of those alleged admissions does not necessarily render the conviction unsafe. In [***Kinyatti v Republic [1984] KECA 78 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/1984/78/eng%401984-11-23) the court of Appeal took the position that where inadmissible evidence is excluded, an appellate court must determine whether the remaining admissible evidence is sufficient to sustain the conviction. 4. This court has considered the rest of the evidence, exclusive the impugned admissions. There remained evidence that: the Appellant was the last person seen entering the room from which the fire originated and which room happened to be his; the fire broke out almost immediately thereafter; the fire originated inside his room; there was no suggestion that there was any other person inside his room , and finally the Appellant's explanation did not satisfactorily account for those circumstances. 5. These circumstances formed a coherent chain of circumstantial evidence which the Appellant failed to rebut. Accordingly, the conviction was not founded solely upon the impugned utterances. *Whether the Appellant’s right to legal representation was violated.* 1. The record shows that throughout the trial the Appellant actively participated in the proceedings, cross-examined prosecution witnesses in considerable detail and gave sworn evidence. No prejudice has been demonstrated to have arisen from the absence of legal representation. 2. Although it is desirable for trial courts to expressly record compliance with Article 50(2)(g) and (h) the omission in the circumstances of this case did not occasion a miscarriage of justice. *The question of jurisdiction* 1. The Appellant contended that the trial court failed to determine a jurisdictional objection. Having carefully reviewed the proceedings, this Court finds no substantive jurisdictional issue that had been raised during trial. Although the Appellant kept on stating that *“this court does not have jurisdiction*” he never went further to explain the basis of his assertion. The offence occurred within Murang'a County and fell squarely within the jurisdiction of the Chief Magistrate's Court at Muranga. I consider this to be merely an idle assertion. 2. This ground of Appeal is devoid of any merit. *Whether the sentence was lawful* 1. The Appellant was sentenced to fourteen (14) years' imprisonment. 2. Sentencing is primarily a matter of judicial discretion. An appellate court will only interfere where the trial court acted upon wrong principles, overlooked material factors, considered irrelevant matters or imposed a sentence that is manifestly excessive. (see:***Bernard Kimani Gacheru v Republic [2002] eKLR****.)* 3. The offence under Section 332(a) of the Penal Code attracts a maximum sentence of life imprisonment. The sentence of fourteen years therefore falls well within the statutory limits. 4. The trial court considered the gravity of the offence, the substantial destruction of property, as well as the fact that the Appellant expressed no remorse. While the Appellant was a first offender, the consequences of the offence were grave. Consequently, the sentence was not excessive in the circumstances of this case, and there is no fault in the manner in which the trial magistrate exercised discretion. Therefore, this court has no reason to interfere with the sentence. 5. In ConclusionI am satisfied that the prosecution proved the offence of arson beyond reasonable doubt and that the sentence was lawful and proportionate to the crime committed. 6. Accordingly, both the conviction and sentence are upheld and the Appeal is dismissed. Dated, signed and delivered at Isiolo, via Microsoft Teams, this 23rd day of July 2026. S. Chirchir Judge. In the presence of : Roba Katelo- Court Assistant The Appellant Mr. Majale for the Respondent. Bottom of Form