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Court of AppealPartially AllowedCriminal Appeal (from Bungoma High Court Criminal Case No. 15 of 2013)

Pepela v Republic (Criminal Appeal 91 of 2021) [2026] KECA 592 (KLR)

Court of Appeal of Kenya
13 March 2026
2,798 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal downgraded a mob-justice murder conviction to manslaughter and released the man after time served.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Asik-Makhandia, Omondi and Kimaru, JJA) heard a first appeal by Farice Khisa Pepela against his conviction for the murder of two deceased persons and a sentence of fifteen years' imprisonment imposed by the High Court at Bungoma (Aroni, J.) on 19th March 2018. The prosecution case rested on recognition evidence from PW1, who saw the appellant assaulting the deceased with sticks under torchlight, and PW3, an injured survivor who described the appellant attacking the deceased with pangas and axes, corroborated by medical evidence of head injury as the cause of death and an investigating officer's testimony describing the incident as mob justice. The sole issue the court framed was whether the appellant was properly convicted of murder. It accepted the identification evidence and found him a participant in the fatal assault, but held that in a chaotic mob setting malice aforethought could not be attributed to him beyond reasonable doubt; the killing was spontaneous mob psychology rather than premeditated. Invoking Republic v Tubere s/o Ochen and its own consistent practice, the court substituted a conviction for manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. On sentence, noting that the appellant was a first offender with family responsibilities who had served a substantial term since 2018, the court reduced the sentence to time served and ordered his immediate release unless otherwise lawfully held. The appeal therefore succeeded in part: the murder conviction was set aside and replaced, and the sentence reduced, but the appellant was not acquitted outright.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant was correctly and properly found guilty on the information of murder

Key legal issues

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01

Whether malice aforethought was proved against the appellant in a mob-justice killing

Holding

No; the killing was a spontaneous act of mob psychology, so the conviction was substituted with manslaughter

Reasoning

The court found the appellant participated in the fatal assault, but the deaths occurred amid a large chaotic crowd acting on mob suspicion of criminality. In such settings, specific intent cannot be safely attributed to an individual. Applying the Tubere factors (weapon, body part targeted, conduct) together with the spontaneous nature of the assault, the court concluded the death was unlawful but not premeditated, warranting substitution with manslaughter under Sections 202 and 205 of the Penal Code.

p. 5
02

Whether the identification evidence of PW1 and PW3 was reliable

Holding

Yes; recognition evidence from two witnesses placed the appellant at the scene as an active participant

Reasoning

PW1 identified the appellant by recognition as her neighbour, with the aid of torchlight, as he assaulted the deceased with sticks. PW3, himself a victim who escaped, gave a detailed account of the appellant attacking with pangas and axes. The court saw no reason to disbelieve these accounts and accepted them as consistent and corroborated, distinguishing mere presence from active participation in the assault.

p. 5
03

Appropriate sentence given time served and mitigation

Holding

Sentence reduced to the term already served and the appellant ordered released

Reasoning

On substituting manslaughter for murder, the court took into account that the appellant was a first offender with family responsibilities and had already served a substantial custodial term since his 2018 conviction. Holding the period in custody sufficient to meet the ends of justice, it reduced the sentence to time served and ordered immediate release unless otherwise lawfully held.

p. 5

Legal principles established

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  • Where evidence shows participation in an unlawful mob assault but individual malice aforethought is not established beyond reasonable doubt, the proper conviction is manslaughter, not murder
  • In chaotic mob settings, attribution of specific intent (malice aforethought) to an individual participant must be approached with caution
  • A first appellate court must re-evaluate the evidence afresh, weigh conflicting accounts and draw its own conclusions, while bearing in mind the trial court's advantage of seeing and hearing the witnesses

Court orders

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  1. 1.Conviction for murder substituted with a conviction for manslaughter contrary to Section 202 as read with Section 205 of the Penal Code
  2. 2.Sentence reduced to the term already served
  3. 3.Appellant's release forthwith unless otherwise lawfully held

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Bungoma
Criminal Case No. 15 of 2013
Jurisdiction invoked
First appellate jurisdiction over a conviction and sentence from the High Court exercising original criminal jurisdiction (Criminal Case No. 15 of 2013); the judgment does not cite a specific constitutional or statutory provision for its jurisdiction.

Relief refused

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Outright acquittal/quashing of conviction without substitution

The court found overwhelming evidence placing the appellant at the scene as a participant in the fatal assault; only the murder conviction was disturbed

p. 5

Costs

No costs order made; this being a criminal appeal, the judgment is silent on costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We therefore substitute the conviction for murder with one for manslaughter contrary to Section 202 as read with Section 205 of the Penal Code.
p. 5Substitution of conviction - final disposition
We therefore reduce the sentence to the term already served, and order the appellant's release forthwith unless otherwise lawfully held.
p. 5Final orders on sentence and release
where the evidence shows participation in an unlawful assault but does not establish individual malice aforethought beyond reasonable doubt, the proper conviction should be manslaughter contrary to Section 202 as read with Section 205 of the Penal Code
p. 5Binding rule on mob-justice killings
It was a spontaneous act and a case of mob psychology.
p. 5Absence of malice aforethought
As a first appellate court, our duty is to re-evaluate the evidence afresh, weigh the conflicting accounts, and draw our own conclusions
p. 4Duty of a first appellate court

Issues in the judgment

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minor

The judgment is dated 13th March 2026, which post-dates the conventional reporting period and may reflect a clerical or typographical error in the date of delivery.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Pepela v Republic (Criminal Appeal 91 of 2021) [2026] KECA 592 (KLR)", Case Analysis (2026). Criminal Appeal (from Bungoma High Court Criminal Case No. 15 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/592/eng@2026-03-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.