On Friday, 9 February, 2024 the High Court rendered its judgement in the murder case against Joshua Irungu alias Jowie and Jacqueline Maribe. It was a much-publicised murder case that made headlines. In her judgment, Justice Nzioka found the 1st accused, Jowie, guilty of murder and acquitted the 2nd accused, Maribe. However, the Court noted that the 2nd accused should have been charged with a different offence, that of lying to a public officer.
In reaching its decision, the Court relied on circumstantial evidence pieced together by the investigation and tested at trial, which pointed to the guilt of the 1st accused. Circumstantial evidence, as opposed to direct evidence, is evidence which when put together, leads to no conclusion other than the guilt of the accused person. The Doctrine of Last Seen is circumstantial evidence. Under this doctrine, the person who is last seen in the company of another who is later found dead, is called upon to explain the circumstances under which the deceased met his or her death. However, at paragraph 176 of its judgment, the Court held that the Doctrine of Last Seen is an exception to the presumption of innocence. But is it?
The Doctrine of Last Seen is a rule of evidence, admittedly drawn from logic and good sense. But to call it an ‘exception’ to the presumption of innocence flies in the face of the constitutional principle of presumption of innocence of the accused person. Article 50 of the Constitution guarantees the right of an accused person to be presumed innocent. It is upon this constitutional principle that the evidentiary rule of criminal law, that it is for the prosecution to prove the guilt of the accused person beyond reasonable doubt, rests. To label the Doctrine of Last Seen an exception to the presumption of innocence is to effectively presume the accused is guilty, who then must prove his or her innocence. The accused person’s guilt must be proven by the prosecution. Although Article 24 sets the parameters within which any right may be limited, Article 25 provides that the right to a fair trial is among the non-derogable rights.
In the classic English case on the burden of proof in criminal cases, Woolmington v DPP, the accused shot and killed his wife. It was his testimony that the shooting was accidental. The trial court directed the jury that upon establishing that the accused had shot his wife, it was for the accused to prove that it was an accidental, and not an intentional, act. In other words, the accused had to show that he had had no malice aforethought. The House of Lords held that this was a misdirection: it was not for the accused to prove that he had had no intention to kill. It was for the prosecution to prove that he had such an intention, and that the killing was not accidental but pre-meditated.
In Aloise Nyasinga v Republic, the Court of Appeal of Kenya made the same point. In this case, the accused was charged with murder. At the time the offence was committed, he was said to have been drunk. The trial court directed itself and the assessors that the accused had to prove that he was too drunk to have been unable to form an intention to kill. The Court of Appeal reversed the High Court on this, holding that it was the prosecution’s burden of proving that the accused had intended to cause the death of the deceased; that is, he was not too drunk as to have been unable to form the intention to kill.
While it is not in doubt that a court can convict an accused person on circumstantial evidence, in which class of evidence the Doctrine of Last Seen falls, it is not the case that the accused should prove his innocence. The accused person may bear an evidentiary burden of explaining some fact, or circumstance, but failing to do so cannot be dispositive of his or her guilt, without other evidence pointing to such guilt. The Doctrine of Last Seen is an evidentiary rule that cannot be invoked as an exception to a constitutional principle that is cast in stone. It is like a dot, in a join-the-dots puzzle, which when joined with other dots presents a full picture. In the context of a criminal trial, the picture is the guilt of the accused person. There is no, and there cannot be, an exception to the presumption of innocence in a free and democratic society.
