Julius Mwenda Henry & another v Republic

until 4 p.m. when they went home. The deceased entered the house to take a shower, as PW1 and PW2 sat on a bench talking, as PW1 peeled potatoes. The appellants entered the compound with the 2nd appellant carrying a panga, and the 1st appellant a jembe. They asked for the deceased and were told that he was bathing inside the house. 4. When the deceased came out of the house, the 2nd appellant asked him whether he had ever been cut. Before he could answer, the 2nd appellant lifted the panga he had, aiming at the deceased’s head. The deceased shielded his head and was cut on the right hand. The 2nd appellant aimed again at the deceased’s head and again the deceased shielded himself and was cut on the left hand. Both hands were broken. The 2nd appellant aimed at the deceased’s head yet again and cut him deeply, and he fell down. All this time, the 1st appellant threatened PW1 and PW2 with the jembe to prevent them from intervening. The two appellants then ran away. 5. The deceased was carried on a motorbike via the Muthaara Police Station where a report was made. He was taken to Tigania Hospital where he was pronounced dead on arrival. 6. Dr. Njeru Charles (PW4), a doctor at Meru Referral Hospital, produced the post mortem report dated 11th February, 2013, prepared by Dr. Guantai’s, who performed the post mortem on the body of the deceased at St. John of God Tigania Mission Hospital. His ndings were that the deceased had suered 3 deep cut wounds to the back of his head, about 6 cm in length, as well as deep cuts in the skull bones at the back of the head, cuts on the left and the right index ngers, and a fracture to the rst cervical bone. The doctor formed the opinion that the cause of death was severe head injury secondary to a penetrating wound to the skull bone. The possible weapon used was indicated as sharp most likely a panga. 7. PC Andrew Akolo, PW5 took over as the investigating ocer from PC Duncan Maina. PW5 testied that the 2nd appellant was arrested at Karama Area, while the 1st appellant was apprehended at Kangeta Market following a foiled robbery. This was months after the murder. 8. The 2nd appellant, who was the 1st accused in the trial gave a sworn defence and called no witnesses. It was his case that he was returning home from work on 5th February, 2013 at around 5.30 p.m. and parked the vehicle he drove to work at the parking area in Karama, before proceeding home. He stated that on his way, he passed the house of one Margaret Miriti where he found Margaret, PW1 and one Paul Kiogora, and subsequently purchased 3 glasses of alcohol. While there he heard screams coming from one Mundu, a neighbour. They all rushed to the canteen where the screams were coming from and found the 1st appellant with a cut on his leg, and the deceased with cuts on the head and lying on the ground. There were neighbours at the scene who were beating the 1st appellant, alleging that he fought the deceased. He said that he gave one of the neighbours, one Murugi, Kshs.500 to take the deceased to hospital. He then took the 1st appellant to his home. 9. The 2nd appellant stated that at around 9 p.m. the same day, PW1 and PW2 went to his house with PW2’s children, questioned him why he had removed his co-accused from the scene. He told them that he was merely trying to rescue his cousin, the 1st appellant. He said that PW1 and PW2 told him that they will enjoin him to the case. 10. The 1st appellant in his defence stated that he was in the farm preparing rewood when he encountered the deceased who was drunk and blocked his path telling him that he would deal with him. He wrestled the panga the deceased had from him. People gathered and started beating him when the 2nd appellant rescued him from the crowd. He went for treatment the following day, and upon learning that the children of the deceased were looking for him, he decided to run away. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1705/eng@2026-09-25 2

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11. In the judgment of the trial court delivered on 2nd May, 2019 Mabeya, J. found that the prosecution had proved the ingredients of the oence of murder to the required standard. He rejected the appellant’s allegations against PW1 and PW2, nding no evidence that pointed at the two witnesses of wanting to frame them with the oence, and nding further that the allegations were an afterthought. Furthermore, the Judge found that none of the allegations they made in their defence was ever put to the witnesses during cross examination. 12. In conclusion, the trial court held that it was satised beyond a reasonable doubt that the appellants committed the oence and convicted them accordingly. the Judge sentenced the appellants to life imprisonment. 13. Aggrieved and dissatised with the judgment of the High Court the appellants preferred an appeal to this Court and fault the trial court on several grounds which we summarize as follows: 1. That the learned Judge erred in law when he failed to note that the Constitution does not explain what a life imprisonment means and consequently the eect was to condemn one to jail for their whole life contrary to the Constitution of Kenya, 2010. 2. That, the learned judge erred in law in failing to note that the deceased was ghting with the second and not the 1st appellant. 3. That, the learned judge erred of law by failing to note that no independent witness was summoned by the prosecution to clear doubt since PW1 and PW2 were relatives of the deceased, not forgetting that the incident occurred in broad daylight. 4. That, the learned judge erred of law by failing to note that this case was not proved beyond any reasonable doubts as required by law. 5. That, the learned judge erred in law when he rejected the appellant’s defence without giving cogent reasons in spite of the same being credible.” 14. We heard this appeal on the 7th May, 2025 through this Court’s virtual platform. Learned counsel Mr. Muchangi Gichungu was present, appearing for both appellants, while learned Prosecution Counsel Mr. Muriithi was present for the State. The appellants were present virtually from Embu Main Prison and Kamiti Maximum Prison, respectively. Both counsels relied on their respective written submissions without highlighting them. 15. This is a rst appeal and as such we have the duty to examine, analyse and evaluate afresh the evidence adduced before the trail court and make our own independent conclusions, while bearing in mind that, unlike the trial court, we did not have the advantage of seeing and hearing the witnesses testify, and give due allowance for the same. See Okeno vs. Republic [1972] EA 32. 16. We have carefully considered this appeal, the submissions by counsel and the cases cited. Having done so, we nd that the only two issues are for determination in this appeal, one: whether the prosecution proved its case against the appellants for the oence charged to the required standard; and, two, whether the sentence meted out was proper. 17. Mr. Gichugu, in his submissions urged, in respect of the 1st appellant that he acted in self defence when he fought the deceased, and that he had no intention to cause his death. He relied on the case of Palmer vs. Republic [1971] AC 814 for the proposition the 1st appellant had a right to defend himself. Counsel also relied on the case of Mokua vs. Republic [1971- 1980] 1 KLR 1337 for the proposition that self defence is an absolute defence. Further he relied on the case of Mungai vs. Republic [1984] KLR 85 https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1705/eng@2026-09-25 3

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for the proposition if we were of the view that the 1st appellant used excessive force, then we should reduce the charge from murder to manslaughter. 18. In regards the 2nd appellant’s appeal, Mr. Gichugu urged us to consider the prosecution’s evidence and nd that none of the witnesses testied that the 2nd appellant attacked the deceased. He submitted that the allegations by PW1 and PW2 that he had threatened them with a jembe in order to prevent the attack on the deceased should not be believed as the allegation was not entered in the OB. He urged that the investigating ocer, PW4 did not investigate the claims of the 2nd appellant’s role of abetting the oence. 19. Mr. Muriithi for the State opposed the appeals. He submitted that the evidence of PW1 and PW2 was clear that the appellants went to the home of the deceased and attacked him in the presence of his wife, PW1 and PW2. Counsel urged us to note that the two appellants acted together, that they had crude weapons, and that the attack on the deceased was pre- meditated. In support he relied on the case of Nzuki vs Republic [1993] KLR 171, and urged that the oence was pre- meditated, and cannot be reduced to manslaughter. 20. The submissions by Mr. Gichugu for the appellants advanced defences that were not on record as having been given by the two appellants. For the 1st appellant, nowhere did he say he acted in self defence. In fact, he did not admit to having attacked the deceased, and alleged rather that PW1 and PW2 implicated him yet he did not attack the deceased. Likewise, for the 2nd appellant, counsel urged that the allegations by PW1 and PW2 that the 2nd appellant threatened them in order to prevent them from attacking the deceased, was never entered in the O.B. No mention was ever made throughout the trial regarding an entry in the O.B. 21. Counsel for the appellants is raising in submissions what should have been adduced in evidence. The general principle is that the courts makes its decision, not based on what has been submitted by counsel, usually at the close of the case, but on the evidence presented to it. As stated by this Court in Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another[2014] eKLR: Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented.” 22. The evidence that was adduced by PW1 and PW2, the two eye witnesses established that the two appellants entered the deceased home asking for him, and armed with crude weapons. The 1st appellant had a panga and he used it to strike the deceased three times to the head, causing him severe injuries from which he died before he reached hospital. The 2nd appellant was not a by-stander but actively threatened PW1 and PW2 with a jembe, in order to prevent them from intervening or stopping the attack. 23. The appellants’ actions established that, one, the attack was premeditated; two, that the appellants were acting in concert proving that they had one common intention to attack the deceased; three, they were armed with crude weapons and the clear intention was to cause grievous harm or death of the deceased. Fourthly, the appellants were principal oenders and as prescribed under section 20 of the Penal Code, the actions of one is the actions of both. 24. Section 20 of the Penal Code provides as follows: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1705/eng@2026-09-25 4

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20. Principal oenders (1) When an oence is committed, each of the following persons is deemed to have taken part in committing the oence and to be guilty of the oence, and may be charged with actually committing it, that is to saya. every person who actually does the act or makes the omission which constitutes the oence; b. every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the oence; c. every person who aids or abets another person in committing the oence; d. any person who counsels or procures any other person to commit the oence, and in the last-mentioned case he may be charged either with committing the oence or with counselling or procuring its commission.” 25. The 1st appellant is a principle oender under sub-section (1)(a); while the 2nd appellant is a principle oender under section 20 (1)(b) and (c) of the said Code. The 2nd appellant cannot be heard to say that since he did not strike the deceased, he was not part of the oence. His role was as critical in ensuring the 1st appellant was not prevented from executing his mission, and as such his role was as important in terms of the commission of the murder, as the one played by the 1st appellant. Both appellants acted in concert and with one common intention, thus both are guilty of the oence of murder. 26. We have come to the conclusion that the Judge of the High Court considered the evidence before him and applied proper principles and arrived at the correct conclusion that both appellants were guilty of murder. 27. As for the sentence, we note that the 1st appellant raised the issue of the constitutionality of the sentence for reason of permanently depriving ones of liberty. Counsel for the appellants did not address this in his submissions. None the less we shall look into it. 28. In his Ruling the trial Judge considered the mitigation made by the appellants. He had obtained a presentence report which was negative to the appellants. He also considered the sentiments of the victims. 29. In the end, the Judge observed that the attack on the deceased was brutal, vicious and barbaric. It was his view that a life imprisonment was deserved. 30. This was a post 2016 sentence. The Judge considered the circumstances of the oence, the mitigation by the appellants and the victims’ sentiments. Even though he did not state so in the sentence, we are satised that the Judge considered the new jurisprudence, and before passing sentence acted as the Supreme Court guided in the case of Francis Muruatetu Karioko & Another vs. Republic Supreme Court Petition No. 15 as consolidated with Petition No. 16 of 2015. We nd no basis of interfering with the court’s exercise of discretion in sentencing. 31. The result of this appeal is that the same has no merit and is dismissed accordingly. DATED AND DELIVERED IN NYERI THIS 25TH DAY OF SEPTEMBER, 2026. S. ole KANTAI https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1705/eng@2026-09-25 5

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………………………………………………… JUDGE OF APPEAL J. LESIIT ………………………………………………… JUDGE OF APPEAL ALI – ARONI ………………………………………………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1705/eng@2026-09-25 6

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