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Court of AppealPartially AllowedCriminal Appeal No. E149 of 2023

Kevin Oketch Bina alias Kirutu & 4 others v Republic

Court of Appeal
25 September 2026
6,883 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal reduced five murder convictions to manslaughter over a witchcraft-related killing, but kept their 15-year sentences intact.

What this practically means

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Executive summary

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Five appellants were convicted of the murder of John Jaoko Maobe by the High Court at Migori (Wendoh J) and each sentenced to 15 years' imprisonment. They appealed against both conviction and sentence, contending that the evidence of the deceased's relatives was inconsistent and emotionally tainted by witchcraft allegations, that independent witnesses were not called, that no weapons or forensic evidence linked them to the offence, that their alibi defences were wrongly rejected, that common intention was misapplied, and that the sentences were excessive. The Court of Appeal, in a single judgment of the court, re-evaluated the evidence as on a first appeal. It upheld the findings on death, identification and common intention: the eyewitnesses recognised the appellants, known neighbours, in broad daylight; the alibis were raised late and were not satisfactorily corroborated; and the group's coordinated armed attack satisfied section 21 of the Penal Code. However, the court found that malice aforethought was not proved. The attack arose spontaneously from a community belief that the deceased had bewitched a relative whose burial was taking place that day, with no evidence of premeditation, and no section 206 intention was established. Applying Katana Karisa by parity of reasoning, the court held the evidence established manslaughter, not murder. The appeal partially succeeded: the murder convictions were quashed and substituted with convictions for manslaughter contrary to section 202 as read with section 205 of the Penal Code, while the appeal against sentence was dismissed, the 15-year terms being held lawful, fair and proportionate.

Questions the Court framed

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

  1. 1.Whether the prosecution proved the information of murder against the appellants beyond reasonable doubt
  2. 2.Whether the appellants' alibi defences were properly considered
  3. 3.Whether the sentences imposed against the appellants were lawful and appropriate in the circumstances

Key legal issues

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01

Proof of death and causation

Holding

Death and its cause were proved beyond reasonable doubt by eyewitness testimony, the post-mortem and the scene evidence.

Reasoning

PW1, PW2 and PW4 witnessed the attack; PW3 saw the body with multiple cut wounds; PW5's post-mortem found deep cut wounds to the neck and head and a fractured C2 vertebra, with bleeding secondary to the wounds as the cause of death. The court found no controversy on this ingredient.

p. 33
02

Identification and alibi defences

Holding

The alibi defences, raised late at the defence hearing, were properly rejected; recognition of known assailants in broad daylight was reliable.

Reasoning

The appellants raised alibis only during the defence hearing, allowing the court to treat them as possible afterthoughts. Their supporting witnesses (wives, DW4) could not account for their whereabouts throughout. PW1, PW2 and PW4 recognised the appellants as known neighbours in daylight, and their first report to PW3 named the appellants, supporting veracity.

p. 45
03

Common intention under section 21 of the Penal Code

Holding

The ingredients of common intention were satisfied; the appellants acted in concert in an unlawful assault of which death was a probable consequence.

Reasoning

The appellants jointly went in search of the deceased, escorted him home and attacked him with pangas and rungus. Following Abonyo and Ombati, individual roles need not be proved where the group acts in concert in pursuit of an unlawful purpose whose probable consequence is the offence committed.

p. 53
04

Malice aforethought

Holding

Malice aforethought was not proved; the spontaneous witchcraft-related attack established manslaughter, not murder.

Reasoning

Although the trial court inferred intent to kill from the weapons and targeting of the head, neck and spine, the appellate court found the attack arose from a spontaneous belief that the deceased had bewitched Jared Adek Ng'ang'a, with no evidence of premeditation. Applying Katana Karisa by parity of reasoning, no section 206 intention was established.

p. 55
05

Sentence

Holding

The 15-year sentences, though imposed for murder, were lawful, fair and proportionate for manslaughter; the appeal against sentence was dismissed.

Reasoning

Having substituted a conviction for manslaughter, for which the law prescribes life imprisonment, the court found the existing 15-year sentences lawful and proportionate and declined to interfere, dismissing the appeal against sentence.

p. 60

Legal principles established

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  • On a first appeal the Court must reconsider, reassess and re-evaluate the evidence afresh and draw its own conclusions, while allowing for the fact that it did not see the witnesses.
  • An accused who raises an alibi bears no burden of proving it; the prosecution retains the burden of disproving it, and delay in raising the alibi may be weighed against the accused.
  • Where persons act in concert in pursuit of an unlawful purpose whose probable consequence is death, each is deemed to have committed the offence under section 21 of the Penal Code without proof of who inflicted the fatal blow.
  • Knowledge that grievous harm is likely is not by itself sufficient to convert homicide into murder; malice aforethought requires one of the intentions in section 206 of the Penal Code.
  • A killing arising from a spontaneous belief in witchcraft, with temporary loss of self-control and no evidence of premeditation, may establish manslaughter rather than murder.

Court orders

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  1. 1.Conviction of the appellants for murder quashed
  2. 2.Appellants convicted of manslaughter contrary to section 202 as read with section 205 of the Penal Code
  3. 3.Appeal against sentence dismissed; sentences of 15 years' imprisonment upheld

The bench

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

majority
MW
majority
ON
majority
On appeal from
High Court of Kenya at Migori
HCCRC No. 27 of 2017
Jurisdiction invoked
First appeal to the Court of Appeal against conviction and sentence in a murder trial (High Court criminal jurisdiction; Penal Code ss. 203 and 204)

Relief refused

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Setting aside the 15-year sentences as harsh and excessive

Sentences were lawful, fair and proportionate given the manslaughter finding for which life is prescribed

p. 59

Costs

No costs order made - 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.

Ultimately, this appeal partially succeeds. The conviction of the appellants for the offence of murder is quashed and in place therefor, the appellants are hereby convicted for the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. The appeal against sentence is dismissed.
p. 60Final orders - conviction substituted, sentence upheld
The evidence on record, established the offence of manslaughter as opposed to murder.
p. 59Witchcraft-provoked spontaneous killing reduces murder to manslaughter
The mere fact that the accused's conduct is done in the knowledge that grievous harm is likely or highly likely to ensue from his conduct is not by itself enough to convert a homicide into a crime of murder.
p. 55Malice aforethought - knowledge of grievous harm insufficient
The appellants acted in concert with one another in pursuing an unlawful purpose by assaulting the deceased of which death was a probable consequence.
p. 53Common intention under section 21 of the Penal Code
The incident took place in broad daylight which enabled the witnesses to recognize the appellants as the perpetrators of the crime.
p. 45Recognition of known assailants

Issues in the judgment

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minor

Pagination anomaly: document ends 'Page 60 of 32'

minor

Memorandum of appeal dated 20th May 2026 against a judgment of 28th July 2022; timeline unexplained

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, "Kevin Oketch Bina alias Kirutu & 4 others v Republic", Case Analysis (2026). Criminal Appeal No. E149 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1845/eng@2026-09-25

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