Oliver Nyongesa Wanjala v Republic

and later received information that the deceased had died. The appellant later presented himself at the police station Post and led a report of assault but acting on the information in their possession regarding his alleged participation in the assault of the deceased, they arrested and placed him behind bars. 4. PW5 conrmed that she was selling busaa at her home when the appellant, Ronald, Emmanuel and Robert arrived. She observed that they were all armed with pangas and immediately set upon the deceased cutting him all over the body. Fearing for her safety, she ed the scene only to return fteen minutes later to nd the deceased being taken to hospital. She conrmed that the assault occurred inside her house and that she clearly saw the appellant and his companions attack the deceased. 5. PW1, Dr. Harun Ombongi, conducted the post-mortem examination on the body of the deceased and noted eight deep cut wounds on the head, additional wounds on the back, left ear, and nose, a ruptured spleen, a fractured lumbar spine, and multiple skull fractures. He concluded that the cause of death was shock due to severe head injuries. 6. Put on his defence, the appellant testied on oath and called no witnesses. He admitted being present at the busaa den on the material day. He claimed however, that the deceased approached him and demanded that he buys him liquor. Upon his refusal, the deceased allegedly drew a concealed panga and attempted to cut him. He blocked the blow with his left hand, sustaining an injury, and that he then grabbed the panga and he fell. The deceased allegedly stepped on him before others intervened. He was taken to hospital and later reported the incident to the police post, where he was arrested and subsequently charged. 7. In its judgment, the trial court found that the appellant was positively identied at the scene of crime by both PW3 and PW5, and that even in his own defence, he admitted to being present at the scene of crime and was involved in an altercation with the deceased. The court held that the injuries sustained by the deceased, particularly the eight deep cuts to the head were consistent with the use of a lethal weapon and indicative of a deliberate and vicious attack. The court further relied on Section 206 of the Penal Code and the principles set out in Republic v. Tebere s/o Ochan [1945] 12 EACA 63 to buttress malice aforethought. It found that the nature of the weapon used, the vulnerable parts of the body targeted, the repeated blows, and the conduct of the appellant all pointed to an intention to cause grievous harm or death of the deceased. It rejected the appellant’s claim that he did not know who inicted the injuries, nding it to be a fabrication aimed at deecting his culpability. Ultimately, the trial court was satised that the prosecution had proved all the elements of the oence beyond reasonable doubt, convicted him on the information and sentenced him to the 20 years imprisonment. 8. Aggrieved by the conviction and sentence the appellant lodged the instant appeal on grounds that the trial court erred in law and fact by: failing to appreciate that the prosecution had not proved its case beyond reasonable doubt; misapprehending the facts and evidence; processing the trial in an unconstitutional and awed manner; convicting and sentencing him without properly considering his defence; and relying exclusively on the prosecution’s testimony, thereby drawing an erroneous and prejudicial conclusions. The appellant therefore sought to have the conviction and sentence imposed by the trial court set aside or varied by this Court. 9. The appeal was canvassed by way of written submissions with limited oral highlights. When called out the appellant appeared through Mr. Menezes B, learned counsel, whereas. Ms. Mwaniki, learned Assistant Director of Public Prosecutions appeared for the respondent. 10. Counsel for the appellant argued that the trial court erred in law and fact by failing to uphold the constitutional guarantees of a fair hearing, particularly under Article 50 of the Constitution. He contended that the trial court did not impartially evaluate the appellant’s defence. This, he argued, https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2298/eng@2025-12-19 2

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violated the principles of impartial adjudication as articulated in George Ngodhe Juma & 2 Others v Attorney General [2003] eKLR, where the court emphasized that a fair trial must be free from prejudice, favouritism, and self-interest, and must reect judicial honesty, balance, and detachment. All these elements were lacking in the circumstances of the case according to counsel. 11. Counsel further submitted that the prosecution failed to prove its case against the appellant beyond reasonable doubt. He pointed out material contradictions in the testimonies of PW3 and PW5 regarding the number of assailants, the weapons used, and the sequence of events. Counsel submitted that these inconsistencies undermined the reliability of the prosecution’s case and that the trial court failed to subject this evidence to proper scrutiny. He also challenged the nding on malice aforethought, asserting that the prosecution did not establish any intent to kill or cause grievous harm as required under Section 206 of the Penal Code. He maintained that the incident was spontaneous and lacked premeditation. That in his defence, the appellant had stated that he was attacked by the deceased after refusing to buy him local brew, sustained injuries while defending himself, and was later taken to hospital before reporting the incident to the police. 12. Counsel therefore invoked self-defence, arguing that the appellant acted in response to an imminent threat posed by the deceased, who drew a panga and attempted to attack him. He submitted that his reaction was proportionate and justied under the circumstances. He relied on Victor Nthiga Kiruthu & Another v Republic [2017] eKLR, which dened self-defence as the use of force to protect oneself from real or threatened harm, and Ahmed Mohammed Omar & 5 Others v Republic [2014] eKLR, where this Court armed that self-defence must be judged from the accused’s subjective perspective, even if based on a mistaken belief. He also cited Republic v Ann Karimi [2020] eKLR, which reiterated that the reasonableness of the belief is relevant to credibility but not to culpability. 13. Additionally counsel submitted that the trial court failed to consider the defence of provocation. He argued that the deceased’s persistent demands and aggression towards the appellant triggered a sudden and temporary loss of self-control. He relied on Duy v R [1949] 1 All ER 932, which dened provocation as acts by the deceased that cause the accused to lose self-control, and Peter King’ori Mwangi & 2 Others v Republic [2014] eKLR, which held that provocation requires both a subjective loss of control and an objective standard that a reasonable person would have been similarly provoked. 14. On sentence, counsel challenged the 20-year custodial sentence imposed as excessive and disproportionate. He submitted that the trial court failed to consider mitigating factors, including the fact that the appellant was a rst oender, remorseful, and the sole breadwinner for his family. He relied on Peter Kipngeno Cheruiyot v Republic [2017] eKLR, where the appellate court varied the sentence due to errors in sentencing, and Gedion Kenga Maita v Republic, Criminal Appeal No. 35 of 1997, where the sentence of life imprisonment was reduced to ve years. He also cited Benard Seneyo Letikirich v Republic, Criminal Appeal No. 2 of 2005, which reiterated the need to consider the oender’s personal circumstances and potential for rehabilitation in sentencing. Finally, the counsel invoked the Supreme Court’s decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR and its clarication in Francis Karioko Muruatetu & Another v Republic; Katiba Institute & 5 Others (Amicus Curiae) [2021] eKLR, which emphasized that courts must consider both aggravating and mitigating factors before passing sentence. Counsel submitted that the trial court failed to apply these principles and urged this Court therefore, to allow the appeal, set aside the conviction and sentence, or alternatively, vary the sentence to reect the mitigating circumstances proered by the appellant. 15. In opposing the appeal, counsel for the respondent maintained that the conviction and sentence imposed on the appellant were lawful and supported by credible evidence. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2298/eng@2025-12-19 3

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16. Counsel maintained that the trial was conducted fairly thatthe appellant was represented by counsel throughout the proceedings. The trial court considered his defence and correctly rejected it based on the weight of the prosecution evidence. Counsel argued that the appellant was placed at the scene of the crime and actively participated in the assault that led to the deceased’s death. 17. On malice aforethought, counsel submitted that the nature and extent of the injuries particularly the repeated deep cuts to the head, demonstrated an intention to cause grievous harm or death of the deceased. Counsel submitted that this satised the mens rea element of murder. Regarding sentencing, counsel relied on Francis Karioko Muruatetu & Another v Republic (supra), where the Supreme Court held that mandatory death sentences are unconstitutional and that courts must consider mitigating factors before passing sentence. It was submitted that the trial court considered the appellant’s mitigation and imposed a lawful and proportionate sentence of 20 years’ imprisonment, which should not be disturbed. In conclusion, counsel urged the Court to nd that the appellant was properly convicted and that the sentence imposed was fair and just and dismiss the appeal in its entirety. 18. This is a rst appeal and the duty of this Court on such an appeal is well settled. In Kamau v Mungai [2006] 1 KLR 150, it was held that on a rst appeal, the appellate court is duty-bound to re-evaluate and assess the evidence afresh and reach its own independent conclusions, but always bearing in mind that it did not see or hear the witnesses as they testied and make due allowance thereof. See also Okeno v Republic [1972] EA 32. 19. Having considered the record, the judgment of the trial court, the submissions of both parties and the law, two issues arise for determination: rst, whether the prosecution proved the oence of murder beyond reasonable doubt; and second, whether the sentence imposed was lawful and proportionate. 20. On the rst issue, PW1, Dr. Harun Ombongi, conducted the post- mortem and conrmed that the deceased sustained eight deep cut wounds to the head, additional wounds to the back, ear, and nose, a ruptured spleen, and multiple fractures. He concluded that the cause of death was severe head injury with hypovolemic shock due to assault with sharp and blunt objects. PW2, the deceased’s father, took him to hospital where he died upon arrival. PW4, PW6 and PW7 also got to know of the death. Indeed, PW4 even attended the post mortem. The appellant did not dispute this fact. So that the rst ingredient of murder which is the death of the deceased and the cause thereof was proved. 21. PW3, the deceased’s brother, testied that the appellant and four others attacked the deceased while armed, prompting him to ee and report the incident at Ndengelwa Police Post. PW5, the traditional liquor seller, saw the appellant and his companions, who were her customers and whom she knew very well assaulting the deceased before she ed through a window. This evidence places the appellant at the scene of crime. Of course, the appellant admitted being present at the scene but claimed that the deceased attacked him rst with a panga, which he blocked, sustaining an injury. He was therefore in one way or another involved in the events culminating in the death of the deceased. This evidence therefore satises the second ingredient of murder which is whether it was the appellant committed the oence. 22. As to malice aforethought, which is the nal ingredient of murder that requires proof, the injuries inicted on the deceased, particularly the repeated deep cuts to the head were excessive and indicative of intent to cause grievous harm. Under Section 206 of the Penal Code, one of the manifestations of malice aforethought is the intent to cause death or grievous harm. The trial court correctly applied the principles in Republic v Tebere s/o Ochan (supra), in which it was which held that malice aforethought may be inferred from the nature of the weapon used, the part of the body targeted, the manner in which the weapon was used, and the conduct of the accused before, during, and after the attack. We are satised that the prosecution proved all elements of murder beyond reasonable doubt. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2298/eng@2025-12-19 4

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23. Of course we are aware that the appellant advanced an alibi defence. This Court in Charles Anjare Mwamusi v Republic, Criminal Appeal No. 226 of 2002, held that an accused who raises an alibi does not bear the burden of proving it, and it is sucient if the defence introduces reasonable doubt in the prosecution’s case. The trial court found the alibi unconvincing, noting that the appellant admitted being at the scene and was involved in a confrontation. We entirely agree with this summation. Though the appellant has now raised the issue of self- defence as well as provocation in his written submission, we note that the same were not advanced during the trial. They have simply popped up now. They cannot therefore fall for our determination. 24. On claims of violation of the appellant’s constitutional rights, again this is an issue that was not interrogated during the trial. We therefore have no material upon which we can consider the validity or otherwise of the claims. In any event, it is on record that the appellant was represented by able counsel throughout the trial and such violations would not have escaped his attention. 25. On the second issue, the appellant was sentenced to 20 years’ imprisonment. He contended that the sentence was excessive and that the trial court failed to consider mitigating factors. In Francis Karioko Muruatetu & Another v Republic (supra), the Supreme Court held that sentencing must be individualized. The Court emphasized that mitigating factors must be considered, including age of the oender, being a rst oender, remorsefulness, potential for rehabilitation, and impact on the victims. 26. While the sentence was within the lawful range, we note that the trial court did not expressly evaluate the mitigating factors in detail and the circumstances of the oence. The appellant was a rst oender, expressed remorse, and had dependents. The oence was committed in a traditional liquor den and appears not have been premeditated at all. In Benard Seneyo Letikirich v Republic, Criminal Appeal No. 2 of 2005, the Court reduced a sentence of ten years to seven years, emphasizing the need to consider the oender’s personal circumstances. In Peter Kipngeno Cheruiyot v Republic [2017] eKLR, the Court held that where there is an error in sentencing, the appellate court may vary or quash the sentence. We nd that the trial court erred in failing to suciently weigh the mitigating factors. 27. Having re-evaluated the evidence and considered the applicable law and relevant authorities, we nd no merit in the appeal against conviction which is upheld. However, on sentence, we are satised that the trial court did not adequately consider the mitigating circumstances. Accordingly, we set aside the sentence of 20 years’ imprisonment and substitute thereof with a sentence of 15 years’ imprisonment, to run from the date of rst arraignment in court. DATED AND DELIVERED AT KISUMU THIS 19TH DAY OF DECEMBER, 2025. ASIKE-MAKHANDIA ………………………………… JUDGE OF APPEAL H.A. OMONDI ………………………………… JUDGE OF APPEAL L. KIMARU ……………………………… JUDGE OF APPEAL I certify that this is a true copy of the original https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2298/eng@2025-12-19 5

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DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2298/eng@2025-12-19 6

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