Kapishi & another v Republic

a burial in the neighbourhood where one Kabangi Kalume Kirau informed him that the deceased had been killed; that he left and, on his arrival at the scene, he conrmed that the deceased, who had a cut on the neck and the head, had been killed; that, although there were many people at the scene, including the village elder, Abdalla Thoya, the appellants and PW6 were not there, although his panga, now bloodstained, was at the scene; and that the deceased’s body was picked by the police from Marereni Police Station at about 1am. 3. It was PW1’s evidence that, about two years earlier, the deceased had been assaulted, but that they did not know the assailants, an incident that was reported to the police; that, although the deceased had expressed her desire to return to her home, the 1st appellant, for reasons unknown to PW1, refused; and that the 1st appellant had disappeared from home for one month and only returned the previous day at 7.30pm. 4. PW3, Wanje Ziro Ngoa, conrmed that, on 21st July 2015, he was at the farm with PW1 and the deceased at around 9am before proceeding to another farm to tap wine; that, after tapping wine, he proceeded to the place where they sell the palm wine to rest; that PW1 went to collect money which Sulubu had undertaken to leave with PW3, but found that the money had not been left as Sulubu did not have lose change; that PW1 then borrowed money from one Katana Kahindi and proceeded to the funeral; that, when PW3 returned to the farm at 1pm, he found the deceased lying under a mango tree next to the stove on which maize was boiling; that, when he moved close to the deceased, he saw the deceased bleeding on the neck and realised that she was dead; that next to the deceased was a blood stained panga belonging to PW1; that he rushed to relay the report to another uncle called Sammy Ngua, and who was herding his cattle nearby and, together, they went back to the scene; that Sammy Ngua called PW1 using a phone belonging to Charo Ngumbao, who had joined them; that they were also joined by the village elder, who reported the incident to Marereni police; and that, since the farm where he was working was four acres away, he was unable to witness what happened. 5. PW3 further stated that, while he was going to tap palm wine, he saw the appellants and PW6 where the deceased and PW1 were at around 10 am; and that the 1st appellant was his brother, PW6 his cousin and the 2nd appellant his nephew. 6. PW6, Kapishi Saro, testied that, on 21st July 2015, he was resting at home when the appellants came; that the 1st appellant, his cousin, asked him to accompany him to the farm to get madafu; that they proceeded to the farm where they found PW1, his uncle, and the deceased; that while he and the 2nd appellant sat under a mango tree, the 1st appellant went round the farm; that upon his return, the 1st appellant told them to go and bathe, after which they returned to the mango tree; that, after PW1 left the farm, the 1st appellant took a panga and said that he was going to kill the deceased and warned PW6 not to reveal it to anyone; that he then saw the 1st appellant cutting the deceased with the panga and, once more, warned by the appellants not to reveal to anybody what had happened lest the same fate befell him and PW1; that, while the 1st appellant was cutting the deceased, the 2nd appellant was standing nearby; that the appellants ran away after cutting the deceased while PW6 rushed home, but did not nd anyone; that the deceased did not talk, and he did not know the reason why the deceased was killed; and that, the following day, the 1st appellant went to him and reiterated the threats he had issued the previous day. 7. PW6 added that, after the burial, Kadhua Safari Kapishi, PW2, informed him that PW4, his uncle Hussein Ngona, wanted to see him since he had been seen together with the appellants at the farm; that he went and explained to PW4 what had happened and also disclosed the same information to PW1 before he was taken to Marereni Police Station where he recorded his statement; and that the reason he went into hiding after the 1st appellant’s arrest was because he was threatened by the 1st appellant’s wife. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1918/eng@2024-10-11 2

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8. PW4, Changana Ngona Tembo alias Hussein Ngona, testied that, upon receipt of the news of the death of the deceased, who was his step mother, but who was living at Magarini, he proceeded to the place where she was killed and arrived there at 6.30pm; that, at the scene, he found the deceased’s body with a cut on her head and helped in taking it to the mortuary; that, on 4th August 2015, PW6, his nephew, came to see him and they discussed the death of the deceased; that initially, PW6 denied any knowledge about the deceased’s death, but that, at 4.30pm, PW6 called him and informed him that he knew about it but feared for his life; that PW6 linked the appellants with the deceased’s death and narrated to him how the deceased had been killed; that the 1st appellant was his nephew while the 2nd appellant was also related to him; that the deceased had previously been assaulted and that her ngers and ears had been chopped o; and that she had mentioned the 1st appellant as the perpetrator. 9. PW2, Kadhua Safari Kapishi, testied that on 3rd August 2015 he was informed that his uncle, PW4, wanted to see him with PW6; that the following day, he went home where he found PW4 but was told to wait as PW4 was talking to PW6, a discussion that went on for a half an hour; that PW4 then informed her that since he was going to work, he would continue talking to PW6 in the evening and PW2 returned home; that the following day, PW6 went to his home and divulged to him that PW4 wanted to know more about the death of the deceased; that PW6 then narrated to him the circumstances leading to the death of the deceased; that he then disclosed what PW6 had informed him to PW1 and PW4; and that PW6 had informed him that the appellants killed the deceased because she was a witch. 10. PW5, Dr Eddy Nzomo, testifying on behalf of Dr Salman Omar who conducted post mortem examination on the deceased’s body, but was by then on study leave, stated that the examination was conducted on 30th July 2015 at 3.25pm at Malindi Sub County Hospital; that the body was severely pale, meaning that it had lost a lot of blood and had deep cut wounds at the juncture and occipital area exposing the brain tissue measuring 20cm; that there was a deep cut from the neck to mandible also about 20 cm, supercial cut on the back about 5cm and a fracture of the head and spinal column; and that, from the examination, the cause of the deceased’s death was cardiopulmonary arrest secondary to severe head injury. 11. The oence was investigated by Cpl Tawel Alidha, PW7, who testied that, upon receipt of the report of the murder from the OCS Chief Inspector Patrick Mwanyai, and led by PW1, he visited the scene where they found the body in a maize plantation; that the body had injuries on the back of the head and neck; that he recovered a blood stained panga about three metres from the body; that they removed the body to Malindi Sub County Hospital mortuary; and that, two weeks later, the appellants were arrested and, upon review of the statements recorded from the witnesses, he concluded that the appellants were the culprits and had them charged. 12. At the close of the prosecution case, the appellants were placed on their defence. It was the 1st appellant’s sworn evidence that, on 21st July 2015, he woke up at about 8am and proceeded to the home of his friend, Katana Charo, a boda boda operator, whom he found xing his house; that since Charo was busy, he told the 1st appellant to take the motor bike and proceeded to ferry passengers using the motor bike; that at midday, two customers told him to take them to Mugumani in Pate within Magarini, his sister’s marital home; that after dropping the customers, he decided to visit his sister and left her house at 3pm; that, on his way home, he saw several people going towards his home saying that someone had been killed; that, on reaching home, he found that his grandmother, the deceased, had been killed in the farm where he found many people, including the chief; that, later, the police picked up the body; that when asked to explain the death of the deceased since he was the one who was last https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1918/eng@2024-10-11 3

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seen with the deceased, PW1 became wild and said that the deceased was his mother and that nobody should complain; and that he went back to his work. 13. The 1st appellant added that, on 23rd August 2015, PW1 informed him that there was a family meeting and, based on the information, he proceeded home; that he was arrested together with his ve cousins and taken to Malindi Police Station where he found his nephew, the 2nd appellant, who informed them that he had been arrested the previous day; that, after three days, the Investigation Ocer demanded from them Kshs 50,000 as a condition for their release, claiming that they had no case; that, while the others paid the money and were released, he could not raise it and, on 22nd October 2015, they were charged in court for an oence he knew nothing about; that he had dierences with PW1, his father, over the fact that PW1 had refused the return of his estranged wife, the mother of the 1st appellant; that his persistence in bringing his mother home is what created bad blood between him and his father, PW1; that PW6, who was also arrested and placed in custody for 2 weeks, was forced to testify against him; and that on the day of the incident, he was with his brother in law called Safari Kadenge. 14. The 2nd appellant’s evidence was that, on 21st July 2015, he was called by his grandfather, Kenga Ngowa at 3pm who relayed to him the information that his step mother had been killed; that since there was no one to whom he could hand over his duties that day, the next day, 22nd July 2015, he went home where he found the elders preparing for the burial, but did not meet the 1st appellant; that, after the burial, PW1 was called to explain what happened since the deceased was with him and he said he did not know who killed the deceased; that, on 23rd August 2015, he was called by PW1 and asked to go to Mtaa Mbenoni so that he could be paid his debt; that he proceeded there and, while they were drinking tea with PW1, police ocers arrived and arrested him and took him to Malindi Police Station where he was joined by ve men from his area, one of whom was the 1st appellant; and that both of them were later charged after four of them parted with money and were released; and that he did not commit the oence. . 15. In his judgement, the learned Judge (Korir, J as he then was) found that, although a conviction can be based on the evidence of a single witness, the court must warn itself of the dangers that comes with entering a conviction based on the evidence of such a witness. Dealing with the issue of corroboration of PW6’s evidence, the learned Judge found that the post mortem report produced by PW5 revealed that the deceased had a deep cut on the neck which injury corroborated the testimony of PW6. He noted further that PW1 testied that, while at the farm, the appellants arrived with PW6 and that the 1st appellant borrowed his panga saying that they wanted to get “madafu”, which evidence supported PW6’s testimony. Further, PW3 was in the farm with PW1 and the deceased, but later left to sell palm wine he had just tapped and that, when he returned, he found the deceased had been killed and noticed that she had a cut on the neck. His evidence on the site of the wound supported that of PW6. PW3 also stated that, as he was going to sell the palm wine, he met the appellants and PW6 going towards where PW1 and the deceased were, hence placing the appellants in the environs of the murder. 16. According to the learned Judge the fact of the death of the deceased as a result of the cut wounds was conrmed by PW5, who produced a post-mortem report showing that the cause of death was cardiopulmonary arrest secondary to severe head injury. The learned Judge found that, although the appellants raised alibi defences saying that they were not at the scene of crime at the time the deceased was killed, the 1st appellant did not avail his sister Cecilia and his brother- in-law Safari Kadenge as witnesses. The learned Judge, however, appreciated, based on this Court’s decision in Victor Mwendwa Mulinge v R [2014] eKLR, that that should not be held against him. 17. In the learned Judge’s view, considering the evidence of PW1, PW3 and PW6 that the appellants were at the scene of crime, the defence of alibi which came too late in the day was rendered unbelievable. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1918/eng@2024-10-11 4

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Further, the claim by the 1st appellant that he had dierences with PW1 did not explain the testimony of PW6, who opened up to PW2 and PW4 and told them how the deceased was killed. 18. The learned Judge found that, although it was not clear why the deceased was killed, the evidence adduced in totality showed that the appellants killed the deceased, a killing that was premeditated, the appellants having hovered around the deceased as they waited for PW1 to leave before assaulting the deceased. He found that in those circumstances, the appellants had the intention to kill the deceased, and that malice aforethought as dened in section 206 of the Penal Code was proved. 19. While appreciating that the 2nd appellant played a passive role in the murder, the learned Judge was of the view that it did not take him o the hook since he was with the 1st appellant in the act, basing his decision on the case of Njoroge v R [1983] KLR 197. 20. Satised by the prosecution beyond reasonable doubt that the appellants, with malice aforethought, unlawfully caused the death of Kahonzi Jea, the learned Judge found the appellants guilty of the oence of murder as charged and convicted them accordingly. After taking down the appellants’ mitigation, they were each sentenced to forty (40) years imprisonment. 21. Dissatised with the decision, the 1st appellant, Kazungu Karisa Kapishi, led Criminal Appeal No E002 of 2023 while the 2nd appellant, Kazungu Katana Kazungu, led Criminal Appeal No. E009 of 2024. We have consolidated the two appeals since they arise from the same judgement. 22. In his grounds of appeal, the 1st appellant complained that the learned Judge erred in law and fact: by failing to see that the prosecution omitted to present crucial evidence; by failing to see that identication evidence tabled by the prosecution was inadequate to sustain a conviction; by omitting to take into account his mitigation; and by imposing on him a sentence that was harsh and excessive. 23. The 2nd appellant in his undated grounds of appeal based his appeal on the grounds that the learned Judge erred in law and fact: in failing to appreciate the contradictions, discrepancies and inconsistencies in the prosecution case; by failing to consider that the burden of proof had not been discharged beyond reasonable doubt; by failing to consider that mens rea and actus reus were never established; and by failing to appreciate that his defence was not conclusively considered. 24. At the virtual hearing on 24th April 2024, the 1st appellant appeared from Malindi Prison while the 2nd appellant appeared from Shimo La Tewa Prison. They were represented by learned counsel, Mr. Randiek, who held brief for Ms. Nzamba. Learned Prosecution Counsel, Mr. Alex Gituma represented the respondent. Both counsel entirely relied on their submissions. 25. In their submissions, the appellants cited the cases of: Wamunga v R (1989) KLR 424 for the proposition that there is a need for the court to examine the evidence carefully and be satised that the circumstances were favourable and free from error where the only evidence against the accused is that of identication or recognition; Ernest Asami Bwire Abuang Alias Onyango v R Nbi Criminal Appeal No. 32 of 1982 to distinguish the instant case from the case cited in which the court inferred malice aforethought from the brutal killing of the deceased which was well calculated and planned by the accused; Okeno v R (1972) EA 32, highlighting the duty placed on the rst appellate court to submit the evidence to a fresh and exhaustive examination; Simoni Musoke v R (1958) EA 71 highlighting the need to subject the murder weapon to a DNA test or analysis; and Omar Mzungu Chimora v R Criminal Appeal No. 56 of 1998, on the tests to be satised in order to justify conviction based on circumstantial evidence. 26. On the other hand, the respondent cited Okeno v R (1972) EA 32; and Kiilu & Another v R [2005] KLR 174, highlighting the duty of this Court, as the rst appellate court, to re-evaluate the evidence; https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1918/eng@2024-10-11 5

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Joseph Kimani Njau v R (2014) eKLR for the proposition that, in criminal trials, both mens rea and actus reus must be proved by the prosecution beyond reasonable doubt; Francis Karioko Muruatetu & Another v R [2017] eKLR, submitting that a trial court should have discretion to mete out a sentence that is commensurate with the gravity of the oence; and Evans Wanjala Wanyonyi v R [2019] eKLR, stressing that, when sentencing, the court must subject its mind to sound legal principles and take into account all the relevant factors while eschewing extraneous or irrelevant one. 27. According to the appellants, the only witness who testied that he saw the appellants assaulting the deceased was PW6. Yet, his evidence was inconsistent and distorted. We were urged to treat PW6’s evidence with great care considering that his was the evidence of a single identifying witness. The respondent’s position was that the court found the evidence of PW6 credible; that most of the witnesses were family members who positively placed them at the scene of crime; that no grudges were established between PW6 and the appellants in order to conclude that the charge against the appellants was framed; and that the prosecution discharged its burden of proving its case beyond reasonable doubt. 28. With regard to the evidence of a single identifying witness, this Court in Wamunga v R (supra), expressed itself as follows: “ It is trite law that where the only evidence against a defendant is evidence of identication or recognition, a trial court is enjoined to examine such evidence carefully and to be satised that the circumstances of identication were favourable and free from possibility of error before it can safely make it the basis of a conviction.” 29. That principle was expounded in the case of Tom Piemo Ombura & Another v R [2000] eKLR in which this Court held that: “ The law is well settled in as far as the identication or recognition of an assailant by a single witness is concerned. In Abdalla Bin Wendo V R [1953] 20 EACA 166 this Court said that (subject to certain exceptions) a fact is capable of proof by the testimony of a single witness but this did not, however, lessen the need for testing with the greatest care the evidence of such a witness in respect of the identication especially when it is known that the conditions favouring the identication are dicult. In such circumstances, other evidence, circumstantial or direct pointing to the guilt of the appellant is needed.” 30. In the case before us, there was no allegation of the existence of conditions not favourable to proper identication of the appellants by PW6. PW6 knew the appellants very well. The 1st appellant was his cousin while the 2nd appellant was his nephew. The two appellants picked him from home, and all proceeded to the farm where the deceased and PW1 were. They then briey went to bathe together. The case was not only one resting on recognition, but one in which the oence took place in broad daylight and PW6 accompanied the appellants to the farm where the deceased was killed. The facts of this case are clearly distinguishable from a case of identication or one in which there is a possibility of mistaken recognition. The evidence of PW6 was corroborated by other aspects of the case as correctly pointed out by the learned Judge that: “ 15. Although a conviction can be based on the evidence of a single witness, the court must warn itself of the dangers that comes with entering a conviction based on the evidence of a sole witness. The question then is whether there was any evidence adduced to corroborate that of PW6. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1918/eng@2024-10-11 6

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16. PW5, Dr. Eddy Nzomo, produced a post- mortem report in respect of a postmortem performed on the body of the deceased by his colleague Dr. Salman Omar on 30th July 2017. Among the injuries noted on the body of the deceased was a deep cut on the neck. This injury corroborates the testimony of PW6 that the accused persons “cut her on the neck.” 17. In his testimony PW1 testied that while at the farm, the accused persons arrived with PW6. He stated the 1st accused had borrowed his panga saying that they wanted to get “madafu”. The evidence of PW1 supports PW6’s testimony that he arrived in the farm in company of the accused persons. 18. PW3 Wanje Ziro Ngoa was in the farm with PW1 and the deceased but later left to sell palm wine he had just tapped. When he later came back he found the deceased had been killed. He noticed that she had a cut on the neck. Again, the evidence on the site of one of the wounds supports that of PW6. This witness also stated that as he was going to sell the palm wine he met the accused persons and PW6 going towards where PW1 and the deceased were. This evidence puts the accused persons in the environs of the murder. 19. That the deceased died as a result of the cut wounds was conrmed by PW5 who produced a post-mortem report showing that the cause of death was cardiopulmonary arrest secondary to severe head injury.” 31. We agree with the learned Judge that even if the evidence of PW6 was that of a single witness, it was suciently corroborated by the circumstantial evidence that not only placed the appellants at the scene, but also the nature of the injuries inicted on the deceased. 32. As regards the contended inconsistencies, discrepancies and contradictions in the evidence of the prosecution’s witnesses, it is our view that the Court is only entitled to interfere with a conviction where material contradictions are shown to exist in the evidence adduced by the prosecution. Where what is complained of are mere discrepancies, the Court would not normally interfere. We associate ourselves with the distinction between the two made by the Court of Appeal of Nigeria in the case of David Ojeabuo v Federal Republic of Nigeria {2014} LPELR-22555(CA), where the learned Judges expressed themselves as follows:"contradiction means lack of agreement between two related facts. Evidence contradicts another piece of evidence when it says the opposite of what the other piece of evidence has stated and not where there are mere discrepancies in details between them. Two pieces of evidence contradict one another when they are inconsistent on material facts while a discrepancy occurs where a piece of evidence stops short of, or contains a little more than what the other piece of evidence says or contains." 33. However, not all contradictions are material so as to warrant upsetting a conviction. Each case must be considered on its own particular circumstances. There are cases where the inconsistency is so minor that it IS of little eect, and does not necessarily mean that the witness is lying or that his testimony cannot be relied on. The judge must take all the evidence and all the circumstances of the case into account in deciding whether to accept a witness’s evidence or any part thereof. That some discrepancy is https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1918/eng@2024-10-11 7

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expected in testimonies of witnesses was acknowledged by this Court in Philip Nzaka Watu v Republic [2016] eKLR where it appreciated that: “it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.” 34. What is to be considered by the Court where the allegations of inconsistencies, discrepancies and contradictions in witnesses’ evidence are alleged is, in the words of the Court in Republic v Ahmad Abolfathi Mohammed & Another[2019] eKLR: “ whether the discrepancies are minor and inconsequential or whether they are material so as to vitiate the prosecution case. (See for example Joseph Maina Mwangi v. Republic, CR, APP No. 73 of 1993; Kimeu v. Republic (2002) 1 KAR 757; and Willis Ochieng Odero v. Republic [2006] eKLR). In John Nyaga Njuki & 4 Others v. Republic, Cr. App. No. 160 of 2000, this Court expressed itself as follows on the issue: ‘In certain criminal cases, particularly those which involve many witnesses, discrepancies are in many instances inevitable. But what is important is whether the discrepancies are of such a nature as would create a doubt as to the guilt of the accused. If so, then the prosecution would not have discharged the burden squarely on it to prove the case beyond any reasonable doubt. However, where discrepancies in the evidence do not aect an otherwise proved case against the accused, a court is entitled to overlook those discrepancies and proceed to convict the accused. The discrepancies in the evidence in the matter before us are in our view, of a minor nature considering the facts and circumstances of the case.’ In this appeal, we are satised that there were no discrepancies of the nature that would have created doubt and vitiated the prosecution case.” 35. Where the alleged inconsistencies, discrepancies and contradictions are triing and no injustice is caused thereby to the appellant, the curative provisions of section 382 of the Criminal Procedure Code would be invoked to sustain the conviction. See Joseph Maina Mwangi v R CA No. 73 of 1992 (Nairobi). 36. We have considered the evidence in its totality, and being mindful that it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements, we have come to the conclusion that the minor discrepancies in the evidence of PW2 and PW4 in relation to the evidence of PW6, and whether the panga in question belonged to the deceased or to PW1, were common minor discrepancies which do not warrant our interference with the appellants’ conviction. 37. It was submitted that since the 1st appellant testied that it was the deceased who took care of them when his parents separated, there was no motive on the part of the 1st appellant to kill her, and yet he was the same person who asked the deceased not to go back to her place. In response, the respondent submitted that it was established that the appellants planned and caused the death of the deceased; that https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1918/eng@2024-10-11 8

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there were witnesses who placed the appellants at the scene; and that the reason behind the crime was the allegation that the deceased was a witch. 38. We must stress that, in legal parlance, motive and malice aforethought do not mean one and the same thing. As this Court held in Robert Onchiri Ogeto v R (2004) KLR 19: “ The prosecution does not have to prove the motive for commission of any crime, neither is evidence of motive sucient by itself to prove the commission of a crime by the person who possess the motive – see Karukenya & 4 Others vs. Republic [1987] KLR 458. By section 206(a) of the Penal Code, malice aforethought is deemed to be established by evidence showing an intention to cause death or to do grievous harm. It can be reasonably inferred that, when the appellant stabbed the deceased with a knife on the chest, he intended to cause death or grievous harm to the deceased. That being the case, we are satised that the appellant was properly convicted for the oence of murder.” 39. While we agree that PW2’s evidence that PW6 had informed him that the appellants killed the deceased because she was a witch was hearsay, we nd that the circumstances of the unlawful killing of the deceased constituted either an intention to kill the deceased or to cause her grievous harm. The injuries were enumerated by PW5 as deep cut wounds at the juncture and occipital area exposing the brain tissue measuring 20cm, a deep cut from the neck to mandible also about 20 cm, supercial cut on the back about 5cm and a fracture of the head and spinal column. To our mind, malice aforethought must be inferred from the acts of the appellants since, as stated in Ernest Asami Bwire Abanga alias Onyango v R (CACRA No. 32 of 1990): “ the question of intention can be inferred from the true consequences of the unlawful acts or omission of the brutal killing, which was well planned and calculated to kill or to do grievous harm upon the deceased.” 40. From the conduct of the appellants as explained by PW1 and PW6, of waiting until PW1 was safely out of the way before attacking the deceased, one can safely deduce that this was not an accidental act, but one which was planned to coincide with PW1’s absence. The appellants took advantage of PW1’s absence in order to commit the heinous act. As rightly pointed out by the learned Judge: “ It is not clear why the deceased was killed but the evidence adduced in totality shows that the accused persons killed the deceased. The killing was premeditated. They hovered around the deceased as they waited for PW1 to leave. Once he left they descended upon her without mercy. The accused persons had the intention to kill the deceased.” 41. In our evaluation of the evidence, we nd that both mens rea and actus reus were proved to the required standards. We nd that nothing turns on this submission. 42. We were also urged to consider the fact that, from the testimonies of the witnesses, the panga which was the murder weapon belonged to PW1, and was not submitted for analysis. Yet, there was evidence from PW7 that he was not sure whether it was blood stained or it had just rusted. According to the appellants, there was no proof that the panga before the court was the same one that was used to kill the deceased. The respondent did not address itself to tis submission. However, from the evidence of PW6, it was clear that the deceased was attacked by use of a panga. The evidence of PW5 on the nature of the injuries sustained corroborated the use of a sharp object in causing the injuries in question. Even if the panga had not been exhibited, there was sucient evidence on record to prove that the deceased https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1918/eng@2024-10-11 9

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was attacked by the appellants using a sharp object as a result of which she sustained fatal injuries. As this Court observed in the case of Karani v Republic [2010] 1 KLR 73: “ The oence as charged could have been proved even if the dangerous weapon was not produced as exhibit as indeed happens in several cases where the weapon is not recovered. So long as the court believes, on evidence before it, that such a weapon existed at the time of the oence, the court may still enter and has been entering conviction without the weapon being produced as exhibit.” 43. The appellants alluded to a confession that was purportedly made by PW6, but was not immediately reported to the police hence the possibility that his evidence could have been fabricated. Our reevaluation of the evidence on record does not reveal the existence of any confession by PW6. What PW7 said in cross-examination in reference to the statement given by PW6 that: “A court order was issued to arrest PW6 to come and testify. I do not know that he confessed that he had killed the deceased.” 44. In re-examination, he was categorical that: “ No confession was recorded. A statement was recorded from PW6. It was not a confession. He was one of the prosecution witnesses and the court gave out order that he be brought to court.” 45. If the statement that PW6 gave narrating how he witnessed the deceased being assaulted is what the appellants term as a confession, then we wish to disabuse them of that notion. From the evidence of PW6, he was not a party to the appellants’ scheme of assaulting the deceased. The mere fact that he was present at the place where the deceased was assaulted does not of itself make him part of the scheme, unless he had a common intention with them to assault the deceased. That the fact that a person nds himself in a place where another is being assaulted does not ipso facto make him part of the assailants. In other words, there is no evidence that he had a common intention with the appellants to assault the deceased. Common intention is dened in section 21 of the Penal Code which states that: “Where two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and in the prosecution of such purpose an oence is committed of such nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the oence.” 46. This Court in the case of Njoroge v Republic [1983] KLR 197 held that: “ If several persons combine for an unlawful purpose and one of them in the prosecution of it kills a man, it is murder in all who are present whether they actually aided or abetted or not provided that the death was caused by the act of someone of the party in the course of his endeavors to eect the common assault of the assembly…Their common intention may be inferred from their presence, their actions and the omission of either of them to disassociate himself from the assault.” 47. Unlike the 2nd appellant to whom knowledge of the intention to assault the deceased could be imputed by his proximity to the 1st appellant while the assault on the deceased was being executed as well as the appellants’ joint threats to PW6, PW6 explained the circumstances under which he found himself at the scene of the crime which explanation exonerated him from harbouring a common intention https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1918/eng@2024-10-11 10

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with the appellants to injure the deceased. In those circumstances, his statement and evidence that he witnessed the deceased being assaulted by the appellants did not amount to a confession. 48. It was submitted that the evidence was principally circumstantial evidence with glaringly inconsistent facts which were uncorroborated and, therefore, of less probative value against the scales of justice and did not warrant a conviction. This ground was likewise not addressed by the respondent. 49. Mativo, J (as he then was) correctly distinguished direct evidence from circumstantial evidence in the case of Moses Kabue Karuoya v R [2016] eKLR in which he expressed himself as hereunder: “ The evidence used to prove guilt is classied as either direct or circumstantial. Direct evidence, is a statement about a fact constituting a disputed material proposition of a rule of law, while circumstantial evidence is testimony about a fact or facts from which the disputed material proposition may be inferred. Thus, circumstantial evidence can be dened as relying on certain proved or provable circumstances from which a conclusion can be drawn that it was the accused person who committed the oence. It is evidence of circumstances which can be relied upon not as proving a fact directly but instead as pointing to its existence. It diers from direct evidence, which tends to prove a fact directly, typically when a witness testies about something which that witness personally saw, or heard.” 50. In this case, the evidence presented before the court, particularly by PW6, was that he saw the appellants inict the fatal injuries on the deceased. That was direct evidence and, therefore, the principles that apply in cases of conviction based on circumstantial evidence were not applicable to this case. 51. With regard to the ground that the appellants’ defences were never considered, suce it to say that this ground was never addressed in the submissions. It is important that every ground of appeal be addressed in the submissions, otherwise it remains a bare statement devoid of substance. That notwithstanding, the learned Judge, in his judgement extensively dealt with the appellants’ defences and expressed himself as follows: “25. The accused persons have raised the defence of alibi. They say they were not at the scene of crime at the time the deceased was killed. The 1st accused said he was with his sister Cecilia and his brother-in-law Safari Kadenge. He did not avail any of them as a witness but that should not be held against him since as was stated by the Court of Appeal in Victor Mwendwa Mulinge v republic [2014] eKLR; Criminal Appeal No. 357 of 2012 it ‘is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution.’ 26. In the instant case, the accused persons only raised the defence of alibi when they gave their evidence. There is no hint that they raised the issue with the investigating ocer. The record is also clear that their counsel did not raise the issue when cross- examining the prosecution witnesses. Indeed, in Victor Mwendwa Mulinge (supra), the Court of Appeal stated that: ‘The appellant was arrested on 16th May, 2003 and taken to Shauri Moyo Police Station where his statement was recorded. That statement was not produced before the trial court. Had that been done, the court would have been able to consider whether what the appellant had stated at the earliest opportunity regarding his whereabouts on the material day was in line with his defence of alibi before the court. In KARANJA V REPUBLIC (Supra), this Court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilt is established beyond all reasonable doubt, take into account the fact that he had put forward his defence of alibi at an early stage https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1918/eng@2024-10-11 11

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in the case so that it can be tested by those responsible for investigation and thereby prevent any suggestion that the defence was an afterthought.’ 27. Considering the evidence of PW1, PW3 and PW6 that the accused persons were at the scene of crime, the defence of alibi which came too late in the day is rendered unbelievable. 28. The claim by the 1st accused that he had dierences with PW1 does not explain the testimony of PW6. Indeed, PW2 and PW4 told the court that PW6 opened up to them and told them how the deceased was killed. It was PW2 and PW4 who rst learned that the accused persons killed the deceased. The defence put forward by the accused persons cannot be believed.” 52. It was the evidence of PW6 that, as it were, ‘nailed’ the appellants. Therefore, the grudge, if any, between the appellants and PW1 could not have been the motive for linking them to the oence. As regards the alibi defence, we agree with the position adopted in Victor Mwendwa Mulinge v R (supra) that an accused person ought to introduce its case well in advance by putting it to the relevant witnesses so as to avoid the impression that the defence was concocted. We have considered the evidence and nd no reason to fault the learned Judge in his nding. 53. In their grounds of appeal, the appellants faulted the learned Judge for omitting to take into account the mitigation; and by imposing on a sentence that was harsh and excessive. Although no submissions were made in respect of this ground, we shall nonetheless address the grounds in deference to the appellants. In Bernard Kimani Gacheru v R [2002] eKLR, this Court and held that: “It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sucient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.” 54. We were not addressed on why we should interfere with an otherwise lawful sentence and have no justication for doing so. 55. We have re-evaluated the evidence on record as presented before the learned Judge as we are enjoined to do, and nd no merit in this appeal which we hereby dismiss in its entirety. Consequently, the judgement of the High Court of Kenya at Malindi (W. Korir, J.) delivered on 27th July 2019 is hereby upheld on both conviction and sentence. 56. It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 11TH DAY OF OCTOBER 2024. A. K. MURGOR ................................ JUDGE OF APPEAL DR. K. I. LAIBUTA C.Arb, FCIArb. ................................ JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1918/eng@2024-10-11 12

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G. V. ODUNGA ................................ JUDGE OF APPEAL I certify that this is the true copy of the original signed Deputy Registrar https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1918/eng@2024-10-11 13

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