Sarah Barasa Omoding v Republic

accompanied by a village elder. There, he found the appellant and her husband present. Upon PW1’s request, the appellant opened the shop where the deceased was found lying on the floor with visible head injuries. Moses Wekesa stated that he had been in another section of the shop and only heard a struggle between the appellant and the deceased. A broken jembe handle, suspected to be the murder weapon, was recovered from the shop. PW1 informed the Officer Commanding Station (OCS), Bumula, who attended the scene and removed the body of the deceased to the mortuary. 5. PW2, Patrick Simiyu, testified that on the material night he was with the deceased at their home selling chang’aa. At about 2.00 a.m., the deceased left with Moses Wekesa, allegedly so that Moses could give her Kshs.1,000/= for the chang’aa he had previously purchased. 6. PW3, MN, a 15-year-old daughter of the deceased, corroborated this account, stating that Moses chased her away when she attempted to accompany her mother. Later, PW2 and PW3 received information that the deceased had been killed at the shop, located approximately one kilometre away. 7. PW4, Geoffrey Wamalwa, testified that at about 4.10 a.m., he received a telephone call from the appellant requesting him to go to Mabusi Market. Upon arrival, he found PW1 (the Chief) already at the scene, together with the appellant and her husband. Moses Wekesa informed him that the appellant had killed the deceased. The shop was opened, revealing the deceased lying on the floor. A blood-stained broken jembe stick was recovered, and the shop appeared disturbed, with items scattered. 8. PW8, No. xxxx P.C. Charles Ongera, the investigating officer, testified that upon receiving a report of murder, he was directed by the OCS to visit the scene. He found PW1 present and recovered a bloodstained broken jembe stick. He also found the appellant at the scene wearing blood-stained clothes, which were seized and produced as exhibits. 9. Placed on her defence, the appellant gave sworn testimony and stated that on 24th December 2018, she was at the shop with her husband before leaving for home at about 6.30 p.m. to prepare supper. Her husband returned at about 9.00 p.m., ate, and left again. At around midnight, she heard noises outside their house suggesting the presence of drunken persons. At approximately 2.00 a.m., she went to the shop and found a person lying on the ground. Believing it to be her husband, she screamed and, in the process, fell and injured herself. Her husband later arrived and advised her to call the chief. Shortly thereafter, police officers arrived and arrested both her and her husband. She admitted knowing the deceased but denied any knowledge of an alleged sexual relationship between the deceased and her husband. 10. In support of the appeal, the appellant through learned counsel Mr. Wangoda contents contends that the learned Judge fell into error in law and fact by convicting her based on circumstantial evidence which did not meet the established legal threshold. Reliance is laid on the case of Emily Chepkirui vs. Republic [2009] eKLR, where this Court, citing Omar Chimera vs. Republic, Criminal Appeal No. 56 of 1998 (unreported), reaffirmed that circumstantial evidence can only sustain a conviction where the inculpatory facts are firmly established, unerringly point to the guilt of the accused, and form a complete chain leaving no reasonable hypothesis other than guilt. 11. That in the present case, no witness saw the appellant commit the offence, nor was she placed at the scene at the material time; that the conviction was founded on circumstantial factors, namely an alleged telephone call to PW1, the appellant’s presence at the scene after the incident, blood-stained clothing, and the recovery of a broken jembe stick suspected to be the murder weapon. 12. It is further contended that the evidence of PW1 relating to what the appellant’s husband allegedly told him was plainly hearsay and lacked probative value. Notably, the said husband, who was allegedly https://new.kenyalaw.org/akn/ke/judgment/keca/2026/279/eng@2026-02-13 2

page 2 of 6

present immediately after the incident, was neither called as a witness nor was any explanation tendered for his absence. 13. It is contended that the alleged admission on telephone attributed to the appellant was denied and, in any event, was inadmissible; that by virtue of section 25A of the Evidence Act, a confession is only admissible if made in court or before a magistrate or a police officer of the requisite rank and in the presence of a third party of the accused’s choice; that the alleged admission to PW1 did not meet this statutory requirement and ought not to have been relied upon. In support of this proposition, reference is made to Wambunya vs. Republic [1993] KLR 133, where it was held that a repudiated confession must be treated with caution and can only found a conviction where the court is fully satisfied of its truth. Likewise, that in Sango Mohamed Sango & Another vs. Republic, Criminal Appeal No. 1 of 2015, citing Parvin Singh Dhalay vs.Republic, Criminal Appeal No. 10 of 1997, the Court emphasized the need for great caution when guilt is alleged to arise from telephone conversations. 14. The appellant further contends that the forensic evidence did not bridge the evidentiary gaps as the DNA analysis showed that blood on the alleged murder weapon belonged to the deceased and an unknown male. There was no forensic evidence linking the appellant to the weapon, and the prosecution did not displace the appellant’s explanation regarding the presence of blood on her clothing. In support of this argument, reference is made to the case of Sawe vs. Republic [2003] KLR 364, where this Court held that circumstantial evidence must be incompatible with the innocence of the appellant and incapable of explanation upon any other reasonable hypothesis than guilt, and that any co-existing circumstances weakening the chain of evidence must be resolved in favour of the appellant. 15. The appellant concluded that, viewed in its totality, the circumstantial evidence relied upon by the trial court fell short of the requisite standard. The evidentiary gaps, the inadmissible confession, the hearsay testimony, and the inconclusive forensic findings created reasonable doubt, and the conviction was therefore unsafe. 16. In rebuttal, the respondent through learned prosecution counsel Ms. Mwaniki contends that the trial court did not err in relying on circumstantial evidence as the principles governing reliance on circumstantial evidence are well settled. Citing the case of Sawe vs. Republic [supra], where this Court (differently constituted) held that a conviction founded on circumstantial evidence is only sustainable where the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. The Court further emphasized that such evidence must form an unbroken chain, with no co-existing circumstances that would weaken or destroy the inference of guilt, and that the burden of establishing these facts rests wholly on the prosecution and never shifts to the accused- a position reaffirmed in Ahamad Abolfathi Mohammed & Another vs. Republic [2018] KECA 743 (KLR), 17. We are urged to consider that the applicable tests restated in Abanga alias Onyango vs. Republic, Criminal Appeal No. 32 of 1990, where the Court held that for circumstantial evidence to found a conviction: (i) the circumstances from which guilt is inferred must be cogently and firmly established; (ii) those circumstances must have a definite tendency unerringly pointing towards the guilt of the accused; and (iii) the circumstances, taken cumulatively, must form a complete chain such that there is no escape from the conclusion that the crime was committed by the accused and none else. In addition, https://new.kenyalaw.org/akn/ke/judgment/keca/2026/279/eng@2026-02-13 3

page 3 of 6

the prosecution must eliminate any co-existing circumstances that could weaken or destroy the inference of guilt. 18. On sentence, the respondent contends that the appellant was convicted of murder contrary to section 203 as read with section 204 of the Penal Code, which prescribes death as the sentence upon conviction. However, the constitutionality of the mandatory nature of the death sentence was fundamentally reexamined in Francis Karioko Muruatetu & Another vs. Republic; (2017) eKLR where the Supreme Court held that section 204 of the Penal Code is unconstitutional to the extent that it deprives courts of discretion in sentencing. 19. Similarly, in John Bundi Koome vs. Republic, Nyeri Criminal Appeal No. 22 of 2017 (judgment delivered on 7 October 2022), the Court upheld a sentence of life imprisonment, finding that the trial court had properly considered the appellant’s mitigation and the circumstances of the offence, and that the sentence imposed was lawful and constitutional. 20. The respondent contends that in light of the foregoing jurisprudence, the superior courts have consistently recognized that while sentencing for murder must reflect the gravity with which the Legislature and society views the offence, courts retain discretion to impose an appropriate sentence based on the circumstances of each case. Guided by Muruatetu and subsequent Court of Appeal decisions such as John Bundi Koome (supra), a sentence imposed after due consideration of mitigation and relevant factors cannot be faulted merely on account of severity, provided it is lawful and judiciously exercised. 21. This being a first appeal, the Court has a duty to revisit the evidence that was before the trial court in its entirety, re-evaluate and analyze it and come to its own conclusions. Furthermore,the court must bear in mind that, unlike the trial court, it did not have the benefit of observing the demeanor of the witnesses and the appellant during the trial and can therefore only rely on the evidence that is on record. In Dickson Mwangi Munene & another vs. Republic [2014] eKLR it was stated that: “This being a first appeal, this Court is obliged to re- evaluate the evidence on record to determine if the trial court’s decision was based on evidence and is legally sound. On matters of fact, as appellate court we have to bear in mind the caution that having heard and seen the witnesses testify, the trial court was better placed to assess their demeanor.” 22. Having considered the grounds of appeal, the respective submissions, and the record, the only issue for determination is whether the conviction and sentence of the appellant were safe. 23. This is a murder case, in which the prosecution is required to prove four elements in order to secure a conviction. These are that the deceased died and its cause; that the death was unlawful; that the accused caused the death and lastly, that the death was caused with malice aforethought. All these ingredients must be proved by the prosecution beyond a reasonable doubt. 24. There is no dispute that the deceased, Florence Nekesa Simiyu, died on the night of 25th December 2018 and that her death was unlawful. The post-mortem evidence established that the cause of death was severe head injury occasioned by blunt force trauma. 25. The central question is whether the prosecution proved beyond reasonable doubt that it was the appellant who caused the death of the deceased with malice aforethought. 26. In the instant appeal, the conviction rested solely on circumstantial evidence, as there was no direct eyewitness testimony linking the appellant to the assault on the deceased. The prosecution’s case was founded mainly on the following factors: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/279/eng@2026-02-13 4

page 4 of 6

a. an alleged telephone communication purportedly made by the appellant to PW1 admitting to the killing of the deceased; b. the appellant’s presence at the scene subsequent to the occurrence; c. the appellant’s alleged possession of blood- stained clothing; and d. the discovery of a broken jembe stick within the shop, suspected to have been used in the commission of the offence. 27. The principles governing reliance on circumstantial evidence are well settled. In Abanga alias Onyango vs. Republic (supra), where this Court (differently constituted) articulated a clear three-pronged test which must be satisfied before a conviction can properly be founded on circumstantial evidence. First, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established by the evidence on record. Mere suspicion, conjecture, or loosely connected facts cannot suffice. Second, the established circumstances must have a definite tendency that unerringly points towards the guilt of the accused. The evidence must be such that, when considered objectively, it leads to only one logical conclusion, namely that the accused committed the offence. Third, the circumstances taken cumulatively must form a complete and unbroken chain of evidence, so that there is no reasonable escape from the conclusion that the crime was committed by the accused and no other. In this regard, the prosecution bears the obligation to eliminate any co-existing circumstances which might weaken or destroy the inference of guilt. 28. From the record, the alleged telephone admission attributed to the appellant was inadmissible. Section 25A of the Evidence Act is categorical that a confession is only admissible if made in court or before a magistrate or a police officer not below the rank of Chief Inspector, and in the presence of a third party of the accused’s choice. An alleged admission made to a chief does not meet this threshold and ought not to have been relied upon. See Simon Juma Wambunya vs. Republic [1993] KECA 74 (KLR). 29. Regarding malice aforethought, the crucial issue remains whether the same was proved. Malice aforethought, as defined under section 206 of the Penal Code, may be inferred from factors such as intention to cause death or grievous harm, knowledge that death or grievous harm would probably result, or from the nature of the weapon used and the manner of its use. 30. The evidence on record suggests that the incident occurred in the early hours of the morning inside a shop, in circumstances pointing to a sudden confrontation. There was no evidence of prior planning, premeditation, or previous threats by the appellant against the deceased. 31. The prosecution evidence itself suggested the possibility of provocation arising from the deceased’s presence in the appellant’s matrimonial business premises in the company of the appellant’s husband at an odd hour. In Nzuki vs. Republic [1993] KLR 171 this Court cautioned against readily inferring malice aforethought where the circumstances point to a spontaneous encounter. 32. Similarly, in Bonaya Tutu Ipu & Another vs. Republic [2015] eKLR, the Court held that where death results from a spontaneous fight without evidence of prior intention to kill, the offence disclosed is manslaughter rather than murder. 33. From the record, the evidence does not demonstrate premeditation, prior threats, or conduct indicative of an intention to kill or cause grievous harm; but an erotic rage sparked by the presence of her significant other and another woman at an ungodly hour, in very questionable circumstances. Ultimately, our considered view is that the prosecution did not prove malice aforethought as defined under section 206 of the Penal Code, but definitely points to an act which resulted in snuffing out the life of the deceased!. Consequently, the conviction for murder be and is hereby set aside; and https://new.kenyalaw.org/akn/ke/judgment/keca/2026/279/eng@2026-02-13 5

page 5 of 6

substituted with a conviction for manslaughter contrary to section 202 as read with section 205 of the Penal Code. 34. Regarding the sentence, the appellant was sentenced to twenty (20) years’ imprisonment for murder. Guided by the principles set out in Francis Karioko Muruatetu & Another vs. Republic [2021] eKLR, and taking into account the circumstances of the offence, the absence of malice aforethought, and the period already served, we are inclined to interfere with the sentence; and direct that the appellant shall serve fifteen (15) years’ imprisonment for manslaughter. The sentence to run from the date of her initial conviction. DATED AND DELIVERED AT KISUMU THIS 13TH DAY OF FEBRUARY, 2026. 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. DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/279/eng@2026-02-13 6

page 6 of 6