Mwangi & 2 others v Republic (Criminal Appeal 66 of 2014) [2014] KECA 270 (KLR)

The court accepted that provocation is a question of law but noted the defence was never advanced at trial despite representation by experienced advocates, so it could not know how the trial court would have treated it and no evidence was led on the subjective and objective conditions. Counsel's submissions on an illicit love affair were evidence from the bar, which courts frown upon. The appellants' conduct - congregating from 9 p.m., arming themselves with crude weapons and assaulting the deceased for hours at 2 a.m. - showed planning and ample time for passion to cool, taking the case outside section 207 of the Penal Code.

Applying the settled principle governing interference with findings of fact, the court found no basis to disturb the trial judge's assessment. Two eyewitnesses who knew the 2nd appellant as a neighbour identified him under the plot's lights; the appellants were found still armed and combative when police arrived, consistent with guilt and inconsistent with their rescue narrative, which the trial judge dismissed as unbelievable.

The trial judge had been influenced by the pre-Mwaura decision in Godfrey Ngotho Mutiso v R holding the death penalty non-mandatory. A five-judge bench of the Court of Appeal in October 2013 overruled that position, holding the death penalty mandatory for capital offences. The appellants were put on notice that the court might substitute the lawful sentence and chose nonetheless to prosecute the appeal, so the substitution followed.