THE DOCTRINE OF "LAST SEEN ALIVE" UNDER KENYAN CRIMINAL JURISPRUDENCE

Introduction

1. The doctrine of "last seen alive" is a well-established principle of circumstantial evidence in Kenyan criminal law. It is predominantly invoked in murder prosecutions where direct evidence linking an accused person to the death of the deceased is unavailable. The doctrine permits a court to infer that where the accused was the last person seen in the company of the deceased shortly before the latter's death, and the accused fails to offer a plausible explanation as to the deceased's subsequent whereabouts or death, an inference of guilt may properly arise.
2. The doctrine, however, does not reverse the constitutional presumption of innocence guaranteed under Article 50(2) (a) of the Constitution of Kenya, 2010. Rather, it operates as an evidential principle founded upon Sections 111(1) and 119 of the Evidence Act, Cap. 80, which permit the court to require an accused person to explain facts peculiarly within his knowledge while preserving the prosecution's ultimate burden of proving guilt beyond reasonable doubt.

Statutory Foundation

1. The doctrine derives its legal basis principally from:
2. Section 111(1) of the Evidence Act, which places an evidential burden upon an accused person to explain facts especially within his or her knowledge; and
3. Section 119 of the Evidence Act, which empowers the court to presume the existence of certain facts from the ordinary course of human conduct and surrounding circumstances.
4. These provisions must be read harmoniously with Sections 107–109 of the Evidence Act, which preserve the cardinal principle that the legal burden of proof remains upon the prosecution throughout the criminal trial.

Legal Jurisprudence on the last seen doctrine.

1. By dint of comparative jurisprudence, in the Nigerian case of Moses Jua V. The State (2007) LPELR- CA/IL/42/2006. The court, while considering the ‘last seen alive with’ doctrine held:

"Even though the onus of proof in criminal cases always rests squarely on the prosecution at all times, the last seen theory 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 the inference that the accused killed the deceased.”

1. In yet another Nigerian case considering the same doctrine, in Stephen Haruna V. The Attorney-General of the Federation (2010) 1 iLAW/CA/A/86/C/2009 the court opined thus:

“The doctrine of "last seen" means that the law presumes that the person last seen with a deceased bears full responsibility for his death. Thus where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal. It is the duty of the appellant to give an explanation relating to how the deceased met her death in such circumstance. In the absence of a satisfactory explanation, a trial court and an appellate court will be justified in drawing the inference that the accused person killed the deceased.”

1. Quoting from another jurisdiction, to be specific India, the courts there have developed the doctrine further. In the case of Ramreddy Rajeshkhanna Reddy & another V. State of Andhra Pradesh, JT 2006 (4) SC 16 for instance the court held:

“That even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small that possibility of any person other than the accused being the author of the crime becomes impossible, the courts should look for some corroboration.”

1. From the above foregoing international legal scope, provided the accused was the last person seen with the deceased, then he owes the evidential burden to prove all the material facts beneath his knowledge as to what ideally caused the demise of the deceased. The prosecution a huge burden of providing circumstances which ideally place the accused person to be the only person with evidence as to the whereabouts of the deceased.
2. Back home, In the case of Marita v Republic (Criminal Appeal 280 of 2018) [2023] KECA 580 (KLR) the Court of Appeal stated on the aspect of last seen doctrine;

“The Last Seen Doctrine essentially provides that if a person is the last one seen with the deceased just before his death or within a reasonable period of his death and no other person could have intervened in between them, then the presumption can be taken that he (the person who was last seen with the deceased) is the author of the crime causing the deceased’s death. In such a case, the burden of proof shifts to the person last seen with the deceased to negate this fact and if he is not able to give a lucid and sufficient explanation about his innocence then the presumption becomes even stronger. Ideally, for the Last Seen Doctrine to safely apply, the duration of the accused and deceased last seen together and the recovery of the dead body should be minimal. This, rules out the possibility that another person intervened. In cases where there exists a significant time gap between the time the deceased was last seen with the accused person and the time when the body was recovered, the presumption is considerably weakened.”

1. Further, in the Marita case (supra) the court of Appeal analyzed a number of cases and concluded as follows;

“This court has laid out, quite stably, in a number of authoritative decisions, the governing principles in utilizing circumstantial evidence to secure a conviction. The cases include Abanga alias Onyango v Republic, Criminal Appeal No 31 of 1990 (UR), Sawe v Republic [2003] KLR 364 (supra), Mwendwa vs. Republic [2006] IKLR 137, Wambua & 3 others v Republic [2008] KLR 142, Peter Mugambi v Republic [2017] eKLR, and Dorcas Jebet Ketter & another v Republic.

The guiding principles crystallized in these cases are that:-

1. The inculpatory facts must be incompatible with the innocence of the accused.
2. They must also be incapable of explanation upon any other hypothesis other than that of guilt of the accused.
3. There must be no other existing circumstances weakening or destroying the inference.
4. Every element making the unbroken chain of evidence that would go to prove the case must be proved by the prosecution.”
5. Last seen doctrine obtains its basis from the circumstantial evidence. The circumstances surrounding the case ought to pass the legal test for admissibility of circumstantial evidence. Such evidence must satisfy three tests:
6. The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established,
7. Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
8. 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.”
9. In the case of Moingo & Another v Republic [2022] KECA 6 (KLR), the Court held:

“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 (see the Nigerian case of Moses Jua v the State [2007] PELR-CA/11 42/2006).”

1. In light of the above decided cases, last seen shifts the evidential burden of prove to the accused person to adduce evidence satisfactory enough to prove that he was not the last person to be seen with the deceased. Alibi defence can be among the best avenues the Accused can raise in order to prove that he was not the last one to be seen with deceased. The same will include proving that he or she was in another place and not in accompany with the deceased.

Principles Emerging from Recent Authorities

The recent Kenyan authorities establish the following legal propositions:

1. The prosecution must first prove beyond reasonable doubt that the accused was indeed the last person seen with the deceased.
2. The interval between the last sighting and the discovery of the deceased's death must be sufficiently proximate so as to reasonably exclude intervention by another person.
3. The prosecution must establish a complete chain of circumstantial evidence linking the accused to the offence.
4. The doctrine merely raises an evidential obligation upon the accused to explain facts peculiarly within his or her knowledge; it does not shift the legal burden of proof.
5. Failure by the accused to offer a satisfactory explanation may strengthen the prosecution's circumstantial case but cannot cure deficiencies in the prosecution's evidence.

Conclusion

The doctrine of last seen alive remains an important evidential principle within Kenyan criminal jurisprudence. Its function is not to reverse the evidential burden of proof but to permit a court, in appropriate circumstances, to draw a permissible inference where an accused person fails to explain facts peculiarly within his knowledge after the prosecution has established a cogent and complete chain of circumstantial evidence. The Accused still gets an avenue to adduce sufficient evidence to prove his guilty through addition of evidence.

At Siyasa and Company Advocates, we offer expertise and professional advise to our clients especially who happen to been aggrieved with being accused by dint of being the last persons’ to be seen with a deceased person. We also assist people who happen to lose their loved ones under questionable circumstances especially where they died in close company of persons close to them. Contact us for further advise.

Disclaimer: “This article is for informational purposes only and does not constitute legal advice. For inquiries, please contact Siyasa and Company Advocates.”

-Contributed by-

-Francis Kitheka-