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Court of AppealDismissedCriminal Appeal (Court of Appeal, Kisumu)

Imbuka & 2 others v Republic (Criminal Appeal E150 of 2024) [2026] KECA 616 (KLR)

Court of Appeal of Kenya
13 March 2026
3,071 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal upheld three murder convictions and 35-year sentences, confirming that phone records, payments and circumstantial evidence can prove guilt without eyewitnesses.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Kisumu by three appellants convicted of the murder of Alfred Ikambili Bihemo, committed on the night of 7th November 2019 in Kakamega County, and sentenced to 35 years imprisonment. The prosecution relied on eleven witnesses; the visual identification evidence was weak, with masked attackers and torchlight observation, but the case against the appellants was largely circumstantial: the 2nd appellant was arrested about 200 metres from the scene shortly after the attack and admitted ferrying the assailants; call data records and M-Pesa statements showed sustained communication among the appellants and one Alex Wijenje, with monetary transfers from the 1st to the 2nd appellant shortly before the attack. The court reaffirmed its first appellate duty under Okeno v Republic to re-evaluate the evidence and reach independent conclusions. Applying Abanga alias Onyango v Republic, it held the circumstantial evidence formed an unbroken chain excluding any reasonable hypothesis of innocence, established common intention under section 21 of the Penal Code, and inferred malice aforethought from the vicious, targeted head attack with a sharp weapon. On fair-trial grounds, the record showed compliance with section 200 of the Criminal Procedure Code, counsel having confirmed before Chirchir, J. that the trial should proceed from where Musyoka, J. had left. The court found the convictions safe and the sentences legal, and dismissed the appeal in its entirety on 13th March 2026.

Questions the Court framed

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

  1. 1.Whether the offence of murder was proved
  2. 2.Whether there were material contradictions in the prosecution case, as to warrant resolving the matter in the appellants' favour
  3. 3.Whether the appellants were subjected to a fair hearing

Key legal issues

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01

Whether the offence of murder was proved beyond reasonable doubt

Holding

Yes; death and cause of death were established by the post-mortem report, and circumstantial evidence (proximity of arrest, admission of ferrying the assailants, call data records and M-Pesa transfers) proved the appellants' participation.

Reasoning

The court found death and its cause undisputed. Visual identification being weak, the court relied on circumstantial evidence applying the Abanga principles: the 2nd appellant was arrested 200 metres from the scene shortly after the attack and admitted ferrying the assailants; call data and M-Pesa records showed sustained communication and payments. Cumulatively, the evidence excluded any reasonable hypothesis of innocence, and common intention under section 21 of the Penal Code was established.

p. 5
02

Whether malice aforethought was established

Holding

Yes; inferred from the vicious, targeted attack with a sharp weapon on the deceased's head, under sections 206(a) and (b) of the Penal Code.

Reasoning

Following Mulefu alias Museveni & another v Republic, the court held that the vicious manner and targeted nature of the attack clearly indicate malice aforethought. The use of a sharp weapon, targeting of the head and the force applied were sufficient to infer an intention to cause death or grievous harm.

p. 6
03

Whether the appellants were subjected to a fair hearing, including compliance with section 200 of the Criminal Procedure Code

Holding

Yes; the record showed compliance with section 200, the appellants' counsel having confirmed before Chirchir, J. that the matter should proceed from where the previous judge left off, with no prejudice.

Reasoning

The court examined the record and found that on 20th March 2023 the appellants, through counsel, confirmed to Chirchir, J. (taking over from Musyoka, J.) that they wished the matter to proceed from where the last judge had left. Section 200 was thus complied with and no prejudice was occasioned; the fair-hearing ground failed.

p. 6
04

Whether the identification evidence and alleged contradictions warranted acquittal

Holding

Although identification evidence was wanting, the prosecution did not rely on it alone; the weak identification was supplemented by cogent circumstantial evidence, and the variations in witness accounts were insignificant.

Reasoning

The court acknowledged that PW1 and PW3 did not see the assailants' faces and that PW2's torchlight identification of a masked assailant was weak, invoking the Turnbull and Wamunga cautions. However, each case must be considered on its own facts; here circumstantial evidence carried the prosecution case, and the variations in the witnesses' accounts were treated as insignificant.

p. 5
05

Sentence

Holding

The 35-year sentences were lawful and the Court declined to interfere.

Reasoning

The court found no basis for interfering with the trial court's findings; the convictions were safe and the sentences legal.

p. 6

Legal principles established

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  • On a first appeal, the Court of Appeal must re-evaluate and reconsider the evidence and reach its own independent conclusions, while bearing in mind it did not see or hear the witnesses
  • Circumstantial evidence may sustain a conviction where it forms an unbroken chain pointing irresistibly to guilt and excluding any reasonable hypothesis of innocence
  • Common intention under section 21 of the Penal Code may be inferred from coordinated communication and facilitation of transport, each participant being deemed to have committed the offence
  • Malice aforethought may be inferred from the nature of the injuries, use of a sharp weapon, targeting of the head and the force applied

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.Convictions and sentences of 35 years imprisonment upheld

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya
Jurisdiction invoked
First appeal to the Court of Appeal against conviction and sentence for murder (Criminal Procedure Code; Court of Appeal appellate jurisdiction)

Relief refused

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Quashing of convictions for murder

Prosecution proved its case beyond reasonable doubt; circumstantial evidence formed an unbroken chain pointing to the appellants

p. 6

Reduction of the 35-year sentence

Sentences were legal and the court declined to interfere

p. 6

Costs

No costs order made; this is a criminal appeal

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.

This being a first appeal, the Court's duty is to re-evaluate and reconsider the evidence on record and arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify, as set out in Okeno vs. Republic [1972] EA 32.
p. 5Duty of a first appellate court
When taken cumulatively, this evidence formed an unbroken chain pointing irresistibly to the appellants' participation in the offence and excluded any reasonable hypothesis consistent with their innocence.
p. 6Circumstantial evidence standard
The evidence demonstrated common intention within the meaning of section 21 of the Penal Code.
p. 6Common intention
Ultimately, we find that there is no basis for interfering with the findings of the trial court, as the prosecution proved its case against the appellants beyond reasonable doubt therefore, the convictions were safe. The sentences imposed were legal. We will not interfere with the same. The appeal thus lacks merit and is dismissed in its entirety.
p. 6Disposition and final orders

Issues in the judgment

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minor

The judgment's list of grounds of appeal includes issues (e.g. section 200 compliance, section 106(B) Evidence Act, section 169 CPC) that the court does not individually analyse or dispose of in the reasoning section

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, "Imbuka & 2 others v Republic (Criminal Appeal E150 of 2024) [2026] KECA 616 (KLR)", Case Analysis (2026). Criminal Appeal (Court of Appeal, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/616/eng@2026-03-13

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