https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1033

Gatobu v Republic (Criminal Appeal 32 of 2021) [2026] KECA 1033 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 1033 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Criminal Appeal 32 of 2021 K M'Inoti, S ole Kantai & A Ali-Aroni, JJA May 15, 2026 Between Stephen Mugambi Gatobu Appellant and Republic Respondent (Appeal from the judgment of the High Court of Kenya at Chuka (Limo, J.) dated 28th September 2020 in HCCR.C No. 25 of 2018 Criminal Case 25 of 2018 ) Judgment 1.This is a first appeal from the judgment and sentence of the High Court of Kenya at Chuka dated 28th September 2020. In the said judgment, the appellant, Stephen Mugambi Gatobu, was convicted by Limo J. and sentenced by Gitari, J. to forty years imprisonment for the offence of murder contrary to section 203 as read with section 204 of the Penal Code. 2.The information on the basis of which the appellant was prosecuted stated that on 5th May 2018, at Kirigi village, Maara Sub-County, Tharaka Nithi County, the appellant murdered Elias Gitonga Muthamia (the deceased). 3.After the appellant pleaded not guilty to the offence, the prosecution adduced evidence from seven witnesses to prove its case against him. Briefly, the prosecution evidence was as follows. 4.Selina Nchuguni Muthamia (PW1), the mother to the deceased and grandmother to the appellant, testified that on the material day at about 2 pm, she saw the deceased walking towards a neighbour’s house. The house of the deceased was about 10 meters from that of PW1. The appellant, who was armed with a machete, followed the deceased and PW1 saw the appellant hit and then cut him on the head with the machete several times. She told the court that there was a dispute between the deceased and the appellant over a parcel of land belonging to the deceased’s father and that the appellant had previously threatened to kill the deceased. 5.Sasinta Gakii Gitonga (PW2), the widow of the deceased testified that there was a long-standing disagreement between the appellant and the deceased over a parcel of land which the appellant feared would be inherited by the deceased and that the appellant had previously threatened to kill the deceased. On the material day, PW2 was called from the church by her son, Mwenda, who informed her that the appellant had cut the deceased and that the latter had been taken to hospital. She proceeded to Chuka Referral Hospital where she found the deceased in critical condition, bleeding from the head, shoulder and fingers. His condition deteriorated and he was referred to Embu hospital and eventually transferred to St. Theresa Hospital, Kiirua due to unavailability of ICU facilities. The deceased was hospitalised for 5 months and three weeks and ultimately died on 8th October 2018. 6.PW3 was Pius Mwenda Gitonga, a son of the deceased and a cousin of the appellant. His evidence was that on the material day, Alexander Ntoiti (PW4), a village elder, came to their home looking for the deceased to warn him that the appellant had threatened to kill him if he stepped into the home of PW1. PW3 later passed the information to the deceased, who went up to PW1’s fence to inquire about the threats from the appellant. The appellant then came along armed with a machete, looking for the deceased, but he did not find him. The deceased went to report to the chief and thereafter the village elder called PW3 and informed him that the deceased had been assaulted by the appellant. PW3 visited the scene where he found the deceased having been cut on the head, right shoulder and fingers, and bleeding profusely. The incident was reported to the police and PW3 and others took the deceased to Magutuni Hospital, then to Chuka County Hospital and Embu Hospital before he was ultimately admitted to the hospital at Kiirua where he underwent an operation and was admitted to the ICU. He was in the hospital until 8th October 2018 when he passed on. 7.PW4 confirmed being a village elder and having called PW3 to ask him to go and check on the deceased, whom PW4 had been informed had been cut and was bleeding profusely. After PW3 called PW4 and confirmed that the deceased had been injured, PW4 advised him to report the matter to the police and arrange for the deceased to be taken to the hospital. Subsequently the deceased died in hospital. 8.PW5, Corporal Joseph Gitau testified that on 24th August 2018, in the company of P. C. King’ori, they arrested the appellant at Kianjogu in connection with an assault that had taken place in May 2018. He was charged with the offence of assault which was later substituted with the offence of murder after the death of the deceased. 9.The investigating officer, PC Daniel Sinti (PW6) informed the court that on 5th May 2018 he booked a case of assault committed against the deceased by the appellant. On 23rd July 2018 he visited the deceased at Kiirua hospital, where he was admitted and recorded statements from witnesses regarding the case of assault. The appellant was arrested on 24th August 2018, charged with the offence of assault and released on bond. After the deceased passed on, the appellant was arrested on 22nd October 2018 and charged with the offence of murder. The witness further testified that he had recorded a statement from Florence Karigo Ntoiti (Florence), who subsequently passed on. He produced Florence’s statement, which the court admitted under section 33 of the Evidence Act. 10.The last witness, Dr. James Kihumba (PW7), was the pathologist who performed a postmortem examination on the body of the deceased on 19th October 2018 at Kiirua Mission Hospital. The doctor observed that the deceased had holes in the skull parietal region indicative of surgery to deal with injuries that he had sustained. There was a blunt injury to the head and pus in the head, reduced joint mobility, and severe bed sores due to prolonged bedrest and treatment. The deceased also had an infection in the left lung. The witness concluded that the cause of the death was multiple brain abscesses (pus in the brain) on the opening of the skull bone. Anaemia also contributed to the death. 11.When he was put on his defence, the appellant gave a sworn statement but did not call any witnesses. The substance of his defence was an alibi defence in which he stated that the deceased was his uncle and that he did not kill him because on the material day, he was away working in Laare. He claimed that he was framed by the family of the deceased because of a grudge over a parcel of land that the deceased’s brother had left to him. 12.As earlier indicated, the High Court convicted the appellant and sentenced him to forty years imprisonment. He was aggrieved and preferred this appeal, based on his home-made memorandum of appeal dated 28th September 2020. However, at the hearing of the appeal, the appellant elected to prosecute the appeal on the basis of three grounds of appeal set out in his supplementary memorandum of appeal dated 24th October 2025, in which he faults the High Court for:i.Admitting evidence of a deceased witness in violation of section 33 of the Evidence Act;ii.Finding that the death of the deceased was caused by the injuries alleged to have been inflicted on him by the appellant; andiii.Failing to hold that the prosecution cases was based on suspicion which could not sustain a conviction. 13.In support of the appeal, Mr. Kimani, learned counsel for the appellant, submitted, as regards the first ground of appeal, that the High Court erred by admitting in evidence the statement of Florence, an alleged eyewitness who had died before she could testify at the trial. It was contended that Florence’s statement, which was recorded by PW6, did not fall under any of the categories listed in section 33 of the Evidence Act, allowing admission of evidence by a witness who cannot be called to testify. It was also contended that the statement contained allegations that ought to have been tested in cross-examination. 14.Moving to the second aground of appeal, counsel submitted that the prosecution was obliged to prove beyond reasonable doubt that the death of the deceased was caused by injuries sustained from the appellant’s unlawful actions. It was contended that although PW1 and PW3 testified that the deceased had been cut, PW7, who performed the post mortem did not observe a cut injury on the deceased’s head, save for surgery scars. It was further contended that the machete alleged to have been used to cut the deceased was not produced in evidence and that, according to PW7, the cause of death was brain abscesses after the deceased had sustained a head injury from a blunt object. In counsel’s view, there was no causation or causal link between the actions of the appellant and the death of the deceased. Counsel relied on the decision of this Court in Mwambire v. Republic [2024] KECA 865 (KLR) and submitted that the death of the deceased was not the natural consequence of the actions of the appellant, nor were the appellant’s actions the operating cause of the death. It was contended that the death of the deceased was caused by a new intervening action (novus actus interveniens), namely the surgery. 15.Turning to the last ground of appeal, the appellant submitted that the prosecution case was based on suspicion against the appellant and that suspicion cannot form the basis of a safe conviction. It was contended that the evidence of PW1, PW2, PW3 and PW4 showed that there was a grudge against the appellant and that he was not liked in the family for daring to claim a parcel of land that belonged to the deceased’s brother. Relying on Sawe v Republic [2003] KLR 364, it was contended that suspicion, however strong, cannot form the basis of a conviction. For the foregoing reasons, the appellant’s counsel urged the Court to allow the appeal, quash the conviction and set the appellant at liberty. 16.Ms. Mengo, Prosecution Counsel, opposed the appeal on the basis of written submissions dated 13th October 2025, which addressed the appellant’s home-made memorandum of appeal rather than his supplementary memorandum of appeal. She submitted that the prosecution proved beyond reasonable doubt all the ingredients of murder, as set out by the High Court in Republic v. Henry Obisa Auko [2018] KEHC 5173, namely, death of the deceased, caused by the appellant’s unlawful act, and with malice aforethought. 17.Counsel further contended that the deceased died five months after he was attacked by the appellant and that the death was confirmed by the postmortem report, which also showed the cause of death to be multiple brain abscesses on the opening up of the skull bone to intervene, as well as a blunt injury on the head and severe bed sores due to prolonged treatment. She also submitted that the evidence of two eye witnesses showed that it was the appellant who caused the injuries from which the deceased succumbed, by cutting him on the head with a machete. Further, that malice aforethought was proved because by cutting the deceased on the head with a machete, the appellant knew it would lead to the death of the deceased or occasion him grievous injury. In counsel’s view, malice aforethought was also proved by evidence of the threats that the appellant had previously made to kill the deceased. 18.Ms. Mengo further submitted that there was no contradiction in the prosecution evidence. Relying on the decision of the Court of Appeal of Nigeria in David Ojeabuo v. Federal Republic of Nigeria [2014] LPELR-22555 (CA), it was contended that there was a difference between contradictions and discrepancies in evidence and that in this case, there was no contradiction in the prosecution evidence to warrant interference with the decision of the High Court. Counsel submitted that there was consistent eye-witness evidence of PW1 and Florence showing that it was the appellant who attacked the deceased with a machete. 19.Lastly, the respondent submitted that the High Court duly considered the appellant’s alibi defence and found no merit in it. As for the sentence, it was submitted that the same was deserved and not excessive, taking into account the fact that the prescribed sentence for the offence of murder is death. For the foregoing reasons, the respondent urged the Court to dismiss the appeal. 20.We have anxiously considered this appeal, the judgment of the High Court, the supplementary memorandum of appeal, the submissions by the respective parties and the authorities that they cited. We agree that the appeal turns on the three grounds identified by the appellant in the supplementary memorandum of appeal, namely, whether the High Court wrongfully admitted the evidence of Florence under section 33 of the Evidence Act, whether causation was established between the acts of the appellant and the death of the deceased and whether the prosecution case was based on suspicion. 21.Regarding the contested admission of the statement of Florence, section 33 of the Evidence Act embodies what are known as exceptions to the admissibility of hearsay evidence. The general rule against hearsay evidence, stated in section 63 of the Evidence Act, is that oral evidence in all cases must be direct evidence. The effect of section 63 is to exclude hearsay evidence in a trial. P. B. Carter, in Cases and Statutes on Evidence, Sweet & Maxwell, 1981, at p. 319 expresses the principle as follows:“Assertions which are not made at the trial by the witness who is testifying are inadmissible as evidence of the truth of that which is asserted. Such assertions are hearsay and (except in certain non-adversarial proceedings) are generally excluded at common law. The underlying notion is that a witness should speak only of facts which he has perceived with one of his five senses. But it is to be emphasised that the hearsay rule is directed against, and only against, evidence of out-of-court assertions which are being tendered as evidence of their truth.” 22.The exclusion of hearsay evidence applies both to spoken and to written evidence or assertions. 23.While there are many reasons why hearsay evidence is excluded in a trial, the principal one is that the reliability of hearsay evidence is doubtful, particularly because of lack of an opportunity to test its veracity by cross-examination. 24.There are, however, some limited statutory exceptions against the exclusion of hearsay evidence. In those instances, evidence that is clearly hearsay evidence is admissible, but before admission, it must satisfy specific stipulated conditions. One such statutory exception is provided by section 33 of the Evidence Act, which provides as follows:33.Statements, written or oral, 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–a.when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question and such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question;b.when the statement was made by such person in the ordinary course of business, and in particular when it consists of an entry or memorandum made by him in books or records kept in the ordinary course of business or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce, written or signed by him, or of the date of a letter or other document usually dated, written or signed by him;c.when the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages;d.when the statement gives the opinion of any such person as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen;e.when the statement relates to the existence of any relationship by blood, marriage, or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised;f.when the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised;g.when the statement is contained in any deed or other document which relates to any such transaction as is mentioned in section 13 (a);h.when the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question. 25.In brief, under section 33 hearsay evidence is admissible where the maker:i.is dead;ii.cannot be found;iii.has become incapable of giving evidence;iv.cannot attend court; andv.can attend, but with delay or expense that is unreasonable. 26.The above five instances speak to the impossibility, practicability or convenience of the witness attending to testify in court. In addition to satisfying any of the above five conditions on attendance of the witness, the hearsay statement that is sought to be admitted must relate to any of the eight (8) situations set out in the section, namely:i.statements on the cause of death (dying declaration);ii.statements made in the ordinary cause of business;iii.statements against the interest of the maker;iv.statements giving opinion as to public right, custom or matter of public or general interestv.statements on existence of relationship;vi.statements made in a will or deed on family affairs;vii.statements relating to a transaction creating or asserting a custom; andviii.statements by several persons expressing feelings or impressions. 27.In the present case, PW6 informed the court that Florence recorded her statement on 4th June 2018 and subsequently passed on. He applied to produce her statement and death certificate under section 33 of the Evidence Act. The court admitted Florence’s certificate of death as Exhibit No. 1 and her statement as Exhibit No. 2. In admitting those documents, the learned judge stated as follows:The wife of the Unit Manager known as Florence Karigo M’Ntoiti (deceased) saw the accused attacking the deceased with a machete. The witness Florence Karigo M’Ntoiti (deceased) died in the course of trial but had made her statement recorded by P.C Daniel Sinti (PW6). That statement (P. Exhibit 2) is admissible in evidence pursuant to provisions of Section 33 of the Evidence Act because there was proof (P. Exhibit 1 – death certificate) that the maker could not be found because she was dead.” (Emphasis added). 28.We agree with the appellant that it was a misdirection by the court to admit Florence’s statement under section 33 of the Evidence Act without satisfying itself that although Florence could not be called to testify as a witness because she was already deceased, her statement fell under any of the eight situations provided by section 33 of the Evidence Act. Although there was evidence that Florence was deceased, the court did not inquire into whether her statement related to any of the eight situations set out in section 33 of the Evidence Act. Looking at Florence’s statement, it did not relate to any of the eight situations stipulated in section 33 of the Evidence Act, and therefore, it constituted inadmissible hearsay evidence. The High Court was clearly in error. 29.The second ground of appeal raised by the appellant is that there was no causal connection between the death of the deceased and the actions of the appellant. As far as the appellant is concerned, the death of the deceased was caused by multiple brain abscesses (pus in the brain) caused by the surgery that he underwent. He also contends that according to the postmortem report, the deceased sustained a blunt injury to the skull, whereas the evidence of the prosecution witnesses indicated that the appellant cut the deceased on the head with a machete. 30.If we discount the unlawfully admitted statement of Florence, there is still the evidence of PW1, which the High Court accepted. PW1 was an eyewitness and testified to having seen the appellant hit the deceased with the machete before cutting him on the head several times. The incident happened at 2 pm, in broad daylight, and PW1 was well known to both the appellant and the deceased, the former being her grandson and the latter her son. Her evidence about the injuries that the appellant inflicted upon the deceased was corroborated by PW2, who informed the Court that when she visited the deceased at Chuka Referral Hospital, she found him in a critical condition, unable to talk and bleeding from the head, shoulder and fingers. PW3 noticed the same injuries on the deceased when he found him at the scene, before arranging to take him to hospital. PW3 also testified to having seen the appellant before the assault on the deceased, infuriated and armed with a machete, searching for the deceased. 31.The evidence of the pathologist, PW7 was that in addition to the blunt injury to the head, the deceased had holes in the skull parietal region indicative of surgery to deal with injuries that the deceased had sustained. When he was cross- examined by the appellant’s counsel on whether the injuries on the deceased’s head were caused by a blunt or sharp object, PW6 replied as follows:“The injuries suffered by the deceased were caused by a blunt object. A machete has a blunt and a sharp edge, so it depends on how it is used. It can cause the same injuries.” 32.It is important to recall from the evidence of the eyewitness, PW1, that she saw the deceased hit the appellant on the head with the machete, before cutting him on the head several times. From the totality of the evidence on record, there is no doubt that after the appellant cut the deceased on the head with a machete, the deceased had to undergo surgery in the hospital to deal with those injuries, after which he was admitted to the ICU. The postmortem report referred to the surgical holes on the head of the deceased. It appears that the wounds inflicted on the head of the deceased did not heal, but instead, he developed multiple brain abscesses from which he ultimately died. In these circumstances, can the appellant validly claim that there was no causal connection between his actions of injuring the deceased on the head and the cause of death of the deceased? 33.The surgery from which the deceased developed multiple brain abscesses and died was directly necessitated by the injuries that the appellant inflicted on the appellant’s head. Had the appellant not injured the appellant on the head with the machete, the surgery would not have been necessary. The surgery and the development of multiple brain abscesses were direct and foreseeable consequences of the appellant hitting and cutting the deceased on the head with the machete. The surgery cannot be perceived as a separate and distinct cause of the death of the deceased, independent of the injuries inflicted upon him by the appellant, which injuries the surgery was attempting to mitigate. 34.The above position is affirmed by section 213 (a) of the Penal Code which sets out the circumstances under which a person is deemed to have caused the death of another. The section provides as follows:213.A person is deemed to have caused the death of another person although his act is not the immediate or the sole cause of death in any of the following cases—(a)if he inflicts bodily injury on another person in consequence of which that other person undergoes surgical or medical treatment which causes death. In this case it is immaterial whether the treatment was proper or mistaken, if it was employed in good faith and with common knowledge and skill; but the person inflicting the injury is not deemed to have caused the death if the treatment which was its immediate cause was not employed in good faith or was so employed without common knowledge or skill…” (Emphasis added). 35.The decision of this Court in Mwambire v. Republic (supra), which the appellant cited, does not help him. In that case, the appellant was convicted by the High Court for the offence of murder. He assaulted the deceased on 21st June 2016, and the deceased ultimately passed away some seven months later, on 16th January 2017. One of the grounds of appeal was that there was a break in the chain of causation and that there was no direct link between the assault and the death. In rejecting the argument, the Court, relied on, among others, R v. Cheshire [1991] 1 WLR 844 and held that the actions of the accused person need not be the sole or even the main cause of death of the deceased, so long as they contributed significantly to that result. 36.Taking all the foregoing into account, we are satisfied that there is absolutely no merit in the appellant’s contention that the prosecution did not prove a causal connection between his actions and the death of the deceased. 37.The last ground of appeal is whether the prosecution’s case was based merely on suspicion. This Court has consistently held that suspicion, however strong, is no substitute for proof beyond reasonable doubt, of the accused person’s guilt by evidence. The following are a few cases emphasizing the principle. 38.In Parvin Singh Dhalay v. Republic [1997] KECA 379 (KLR), it was held as follows:“For our part we suspect this appellant most likely had something to do with the death of his wife. But suspicion alone, however strong it may be, cannot take the place of solid and affirmative proof required on the part of the prosecution.” (Emphasis added) 39.In Mary Wanjiku Gichira v. Republic, Cr. App. No. 17 of 1998, the Court reiterated:“Suspicion, however strong, cannot provide a basis for inferring guilt which must be proved by evidence.” 40.In Sawe v. Republic [2003] KECA 182 (KlR), which was cited by the appellant’s counsel, the Court stated:“We have evaluated the evidence as we are entitled to at great length and there is really nothing left to connect the appellant with the death of the deceased except mere suspicion. The suspicion may be strong but this is a game with clear and settled rules of engagement. The prosecution must prove the case against the accused beyond any reasonable doubt.” 41.Lastly, the same principle was repeated in Neema Mwandoro Ndurya v. Republic [2008] KECA 324 (KLR) in the followingterms:“There might have been a suspicion that the appellant might have known how the deceased died, but suspicion alone, however strong, is not enough to sustain a conviction.” 42.Turning to the present appeal, can it be seriously contended that the prosecution’s case was built on suspicion rather than solid evidence? We have on record the eyewitness evidence of PW1 who witnessed the appellant assaulting the deceased and inflicting injuries on his head. Her evidence was corroborated in material particulars by PW2 and PW3 as regards the injuries sustained by the deceased, and the appellant searching for the deceased while infuriated and armed with a machete. The postmortem report produced by PW7 established the cause of death which was attributable to the injuries that the appellant had inflicted on the head of the deceased. PW1 and PW2 testified to threats that the appellant had previously uttered to kill the deceased over inheritance of a parcel of land. Upon careful re-evaluation and analysis of the evidence on record, we find absolutely no merit in the contention that the prosecution’s case was based on mere suspicion. 43.If we exclude the statement of Florence, which we have found to have been wrongfully admitted under section 33 of the Evidence Act, there is still sufficient evidence on record from PW1, PW2, PW3 and PW7, which we have set out above, proving beyond reasonable doubt that the appellant committed the offence of murder as charged. 44.For all the foregoing reasons, we find no merit in this appeal and the same is hereby dismissed in its entirety. It is so ordered. DATED AND DELIVERED AT NYERI THIS 15TH DAY OF MAY, 2026.K. M’INOTI………………………………JUDGE OF APPEALS. ole KANTAI………………………………JUDGE OF APPEALA. ALI-ARONI………………………………JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR