Ronoh Khalif Ahmed v Republic

sentence. However, when the appeal came up for hearing before this Court Page 2 of 16

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on 9th March 2026, Ms. Maina, who was holding brief for Mr. Ogola for the appellant, indicated to us that the appeal essentially sought a reduction of the sentence. This disclosure ties up well with the fact that the appellant had, on 15 th January 2025, notwithstanding that he had counsel, filed an amended appeal and submissions through which he indicated that his appeal was against sentence only. 4. Nevertheless, counsel having indicated to the Court during the hearing that she was relying on the submissions dated 5 th November 2024, which address both the appeal against conviction and sentence and predates the appellant’s amended appeal, we will as a matter of precaution, consider the evidence adduced at the trial in order to satisfy ourselves that the appellant’s conviction is safe. 5. In the self-generated grounds of appeal, the appellant faulted the trial Judge for convicting him, yet the prosecution had failed to prove its case beyond reasonable doubt; relying on contradictory, inconsistent and fabricated evidence; and, failing to consider his defence. 6. In brief, the evidence adduced at the trial is that on 28 th January 2011, at around 7.30 am, the appellant, who was armed with a G3 rifle, walked into a hotel in Wajir town and began shooting, killing Hussein Abdi and Ibrahim Billow on the spot. Billow Mohammed Jillow (PW1) testified that he was at his hotel serving customers when his son, Ibrahim Billow (the deceased in count 2) arrived to ask for pocket money. He witnessed the appellant Page 3 of 16

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shoot Ibrahim twice, remarking, “let me finish this one”. When Page 4 of 16

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PW1 asked the appellant why he shot his son, the appellant shot him in the buttock. 7. Yusuf Yakub Abdi (PW2), a Kenya Police Reservist, was also present when the appellant entered the hotel and, without making any utterance, shot the deceased persons in counts 1 and 2. He testified that he avoided being shot by the appellant. About ten minutes later, he heard gunshots from the appellant’s house and learnt that the appellant’s wife and daughter had died of gunshot wounds. 8. Chief Inspector Alex Mwandawiro, who testified as PW3, told the trial court that he examined the murder weapon and found it to be serviceable. 9. Police Corporal Geoffrey Nyerere (PW4), who investigated the incident, testified that he found two male bodies lying in the hotel and two female bodies lying in the house of the appellant. He observed gunshot wounds on all the bodies. PW4 also confirmed that the firearm used to kill the deceased persons had been issued to the appellant, who was a police reservist. 10. Dr. Hussein Dubo, who testified as PW6, produced the postmortem reports for the four deceased persons wherein he opined that they all died as a result of hemorrhage and shock due to injuries caused by bullets. 11. When placed on his defence, the appellant tendered unsworn testimony. He stated that he was arrested 60 kms away from Wajir town, feeling dizzy, and informed that he had killed Page 5 of 16

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people, one of whom was his biological child. He also testified that he was Page 6 of 16

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taken to Mathare Mental Hospital for treatment before being presented to the trial court to take plea. The appellant did not call any witness. 12. In urging the Court to allow the appeal against conviction, counsel submitted that there were glaring discrepancies in the evidence of PW1 and PW2, who were the only eye-witnesses. In support of this contention, counsel submitted that although PW1 testified that the appellant said “let me kill this one”, PW2’s testimony was that the appellant did not utter any words. According to counsel, the contradiction could have been resolved had the prosecution called the other eyewitnesses but it failed to do so without providing any reason, and neither did the prosecution avail the witness statements to the defence. 13. Alluding to the defence of insanity, counsel faulted the trial court for not seeking an explanation from the investigating officer when he testified that the appellant was mad because of the photos of a woman he saw on a phone. Counsel claimed that the appellant had indicated in his defence that he may not have been of sound mind at the time of the commission of the offence. According to counsel, it is the duty of the trial court to reconcile the discrepancies in the evidence adduced, and where it fails to do so, then this Court must step in and perform the obligation. 14. Still contending that the appellant was incapable of committing the offence because he was not of sound mind, counsel referred to the appellant’s defence that he did not Page 7 of 16

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know what he was doing when he allegedly committed the offences. Counsel argued that Page 8 of 16

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the appellant must have acted in rage upon seeing the photographs of his wife in a compromising position. 15. Turning to another argument, counsel submitted that malice aforethought was not established and that the evidence adduced actually confirmed that the appellant was reacting to provocation. 16. Finally, on the issue of conviction, counsel submitted that there was a violation of the appellant’s right under Article 50 (j) of the Constitution in that he was not provided with witness statements or the complete list of witnesses. Counsel submitted that there was no reason given by the prosecution as to why the rest of the listed witnesses were never called to testify, and the trial court never addressed the issue as to why the prosecution took time to procure their last witness. According to counsel, the fact that the trial took six years violated the appellant’s right to a fair trial. Reliance was placed on Albanus Mwasia Mutua vs. Republic [2006] KECA 346 (KLR), for the proposition that an unexplained violation of a constitutional right will normally result in acquittal, irrespective of the nature and the strength of evidence which may be adduced in support of the charge. 17. With regard to the appeal against sentence, while appreciating the circumscribed jurisdiction of an appellate court to interfere with sentence as stated by this Court in Gacheru vs. Republic [2002] KECA 94 (KLR), counsel argued that the trial court erred by not considering the sentencing principles, thus erroneously imposing the death penalty. According to Page 9 of 16

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counsel, the mitigating factors advanced by the defence were never considered at all, by the learned Judge. Counsel also pointed to the fact that the Page 10 of 16

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mandatory death sentence legislated for murder under section 204 of the Penal Code had since been declared unconstitutional by the Supreme Court in Muruatetu & Another vs. Republic; Katiba (Amicus Institute & 5 Others Curiae) [2017] KESC 2 (KLR) (Muruatetu Case). According to counsel, resentencing was therefore necessary in the circumstances. 18. Opposing the appeal through submissions dated 4 th March 2026, learned Principal Prosecution Counsel, Ms. Njoki Keng’aara, relied on Anthony Ndegwa Ngari vs. Republic [2014] eKLR to submit that the ingredients of the offence of murder are an unlawful act or omission by the accused while possessed of malice aforethought. Counsel asserted that all those ingredients were duly proved in the instant appeal. In support of the argument, counsel pointed to PW1 and PW2 as having witnessed the killing of the deceased persons in counts 1 and 2, which was shortly thereafter followed by gunshots at the appellant’s homestead, where the deceased persons in counts 3 and 4 were killed. 19. Turning to the question as to whether malice aforethought was proved, counsel, while adverting to the ingredients of malice aforethought as found in section 206 of the Penal Code and reiterated by this Court in Bonaya Tutu Ipu & Another vs. Republic [2015] eKLR, submitted that the appellant intended to kill the deceased persons considering the weapon used and the parts of the bodies shot. Ms. Keng’aara submitted that the fact that the appellant fled the scene of crime and was arrested about 60 kms away implied guilt. Page 11 of 16

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Reference was made to the US decision in Alberty vs. US, 162 US 499 (1896), as cited in Kennedy Page 12 of 16

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Wesonga Kwoba vs. Republic [2013] eKLR, for the proposition that the behaviour of a man after the commission of a crime can be used to impute guilt. 20. Ms. Keng’aara rejected the appellant’s defences of unsoundness of mind and provocation. As for the defence of insanity, counsel argued that although the appellant was taken to Mathare Hospital where he was admitted for two weeks, he never raised the defence of insanity and cannot raise it on appeal. In regard to the defence of provocation, while referring to the definition of “provocation” in section 208(1) of the Penal Code and the English case of R. vs. Duffy [1949] 1 All ER 932, counsel argued that this particular defence cannot avail to the appellant because he did not demonstrate that there was bad blood between him and the deceased persons or that PW1 and PW2 were armed with any weapon. Counsel relied on Daniel Muthee vs. Republic [2007] KECA 419 (KLR); Roba Galma Wario vs. Republic [2015] KECA 521 (KLR); and Peter King’ori Mwangi & 2 Others vs. Republic [2014] eKLR, among other decided cases, and argued that the threshold for the defence of provocation was never met by the appellant. 21. In opposition to the appeal against sentence, Ms. Keng’aara, while referring to Gacheru vs. Republic (supra) on the principles that guide appellate courts in determining an appeal against sentence, submitted that the appellant had not demonstrated that the trial Judge took into account wrong material or acted on wrong principle or that the sentence is manifestly excessive. Counsel asked us to reject the appeal Page 13 of 16

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against sentence asserting that the Page 14 of 16

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threshold for interference has not been met by the appellant. We were therefore asked to dismiss the appeal in its entirety. 22. This being a first appeal, this Court has jurisdiction to consider the record afresh in order to arrive at its own independent conclusion. This has been stated time without number in various decisions, including the evergreen case of Okeno vs. Republic [1972] EA 32, where the jurisdiction of an appellate court on a first appeal was explained as follows: “An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E.A. 336) and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E.A. 424.” 23. Upon assessment of the record and the submissions by counsel for the parties, we condense the issues for our determination as follows: whether the offence of murder was proved against the appellant; whether the appellant’s defence was considered; whether the appellant’s constitutional rights were violated; and whether the resentenced, and if so, by which court. Page 15 of 16 appellant should be

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24. On the first question as to whether the charge of murder was proved, we start by appreciating that in order for the prosecution to secure a conviction in respect of a charge of murder, it must establish the fact of death, the cause of death, that the death was caused by an unlawful act or an unlawful omission, that the accused caused the deceased’s death, and that there was malice aforethought as defined under section 206 of the Penal Code. For instance, in Anthony Ndegwa Ngari vs. Republic [2014] KECA 424 (KLR), the Court highlighted the ingredients of the offence of murder thus: “For the offence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought. (See Nyambura & Others vs. Republic, [2001] KLR 355).” 25. And, in Nzuki vs. Republic [1993] KECA 83 (KLR) , the Court underscored the meaning of malice aforethought as follows: “For the purposes of the present appeal, murder is the unlawful killing of a human being with malice aforethought. “Malice aforethought” is a term of art and is either an express intention to kill, as could be inferred when a person threatens another and proceeds to produce a lethal weapon and uses it on his victim; or implied, where, by a voluntary act, a person intended to cause grievous bodily harm to his victim and the victim died as the result. See the case of Regina vs. Vickers, [1957] 2 QB 664 at page 670. An intention connotes a state of affairs which the person intending does more Page 16 of 16

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than merely contemplate: it connotes a state of affairs which, on the contrary, he decides, so far as in him lies, to bring about, and which, in point of possibility, he has Page 17 of 16

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a reasonable prospect of being able to bring about, by his own act of volition. See the case of Conliffe vs. Goodman, [1950] 2 KB 237. Before an act can be murder, it must be aimed at someone and in addition it must be an act committed with one of the following intentions, the test of which is always subjective to the actual accused: (i) The intention to cause death; (ii) The intention to cause grievous bodily harm; (iii) Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from these acts, and commits those acts deliberately and without lawful excuse the intention to expose a potential victim to that risk as the result of those acts. It does not matter in such circumstances whether the accused desires those consequences to ensue or not and in none of these cases does it matter that the act and the intention were aimed at a potential victim other than the one who succumbed. Without an intention of one of these three types, 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 the crime of murder. See the case of Hyam vs. Director of Public Prosecutions, [1975] AC 55.” 26. From the evidence adduced at the trial, there is no doubt the four deceased persons died. The postmortem reports speak to this. The evidence on record also confirmed that a human hand was involved in the deaths. PW1, PW2, PW4 and PW6 all confirmed that the deceased persons died from gunshot Page 18 of 16

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wounds. It is therefore without any doubt that the prosecution established the fact and cause of the deaths. What remains to be considered is Page 19 of 16

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whether the deaths were caused by an unlawful act or an unlawful omission by the appellant and whether he had malice aforethought. 27. As to whether the appellant is the person who caused the deaths of the deceased persons, the evidence on record unerringly points to him. PW1 and PW2 saw him fire at the two of the four deceased persons. The appellant’s claim that the evidence was contradictory does not change the fact that it was the appellant who walked into the hotel and shot the deceased persons in counts 1 and 2. Ten minutes later, gunshots rent the air from the direction of the appellant’s house. At this second scene of crime, it was discovered that the deceased persons in counts 3 and 4 were found dead. 28. The fact that PW1 testified that the appellant uttered some words, while PW2 stated that he said nothing, does not change the overall narrative that the appellant entered the hotel of PW1 and fired the fatal bullets. As was held in Joseph Maina Mwangi vs. Republic [2000] KECA 282 (KLR), in any trial there are bound to be discrepancies, and an appellate court, in considering those discrepancies, must determine whether such discrepancies are so fundamental as to cause prejudice to the appellant or they are inconsequential to the conviction and sentence. Discrepancies that are only matters of minute detail and do not affect the tenor and substance of the prosecution case are inconsequential. We are therefore satisfied that the appellant and no one else, is the person who caused the deaths of all the deceased persons. Page 20 of 16

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29. The remaining issue on the question as to whether murder was proved is whether the appellant had malice aforethought. In answering this question, we will also determine the issue as to whether the appellant’s defence was considered. We will start by considering whether the appellant’s defence was considered. Counsel for the appellant put forth two defences before us: insanity and provocation. Our determination on this issue will be brief. At the hearing, we asked the appellant’s counsel whether the defences were taken up before the trial court and he forthrightly conceded that they were not. A perusal of the record affirms counsel’s candour. The trial court, having not been afforded an opportunity to consider these defences, there is no way this Court can purport to determine matters that were never decided upon by the trial court. We, therefore, decline the invitation to determine this particular issue. That then leaves us with the question as to whether malice aforethought was established by the prosecution. 30. In finding that malice aforethought had been established against the appellant, the learned Judge stated that: “Everyone is deemed to intend the natural consequences of his acts. By shooting each of the four (4) the deceased severally with a gun, the accused certainly intended to kill them, or to cause their deaths. He even stated that he wanted to finish the deceased in count 2, which was a clear demonstration of an intention to kill malice aforethought as defined under section 206 (a) was thus proved by the prosecution. It is instructive to note that when PW1 the father of the deceased in count 2 tried to intervene on behalf of his son Ibrahim Billow, the accused only shot him Page 21 of 16

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once in the buttock and left him. That action in my view, shows that the accused did not intend to kill PW1, but intended to kill Ibrahim and the three (3) other people that he killed.” 31. The learned Judge cannot be faulted for that conclusion. The act of the appellant walking into the hotel while armed with a firearm and targeting the upper torsos (torsi) of the two deceased persons who were killed in the hotel can only mean that he intended to kill them or cause grievous harm. Unfortunately, he fulfilled his intention by killing them. The appellant then walked to his house, where, using the same weapon, he shot his wife and child, killing them on the spot. Again, his determination was rewarded. It cannot be said that he had any other intention but to kill his wife and daughter. As held in the seminal decision of Tubere s/o Ochen vs. R. [1945] 12 EACA 63, malice aforethought can indeed be inferred from the nature of the weapon used, the targeted body parts, the severity of the injuries inflicted, and the subsequent conduct of the accused person. In the appeal before us, not only did the appellant use a lethal weapon on sensitive parts of the bodies of the deceased, but he also fled from the locus in quo. We are therefore satisfied, as the learned Judge was, that the prosecution proved the element of malice aforethought beyond reasonable doubt. 32. Finally, on the question of the soundness of conviction, the appellant argued that his conviction should be set aside because of alleged violation of his constitutional rights. The complaints he now raises before us could have been raised before the trial court, but they were not. We cannot speculate Page 22 of 16

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on the response of the prosecution, had the issues been raised at the right time and Page 23 of 16

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forum. Faced with a situation similar to the one before us, though in a second appeal, the Court in Okello vs. Republic [2010] KECA 319 (KLR) answered the appellant thus: “Firstly, the issue was not raised since the trial began and was only raised for the first time in this second appeal. The appellant gave no reason for failure to do so earlier. We must therefore find, and we now do so, that it was not raised at the earliest opportunity although it could and should have.” 33. Even if the appellant were indeed to prove that his constitutional rights were violated, the solution is not an acquittal, but he should have instead sought compensation through the civil process. held In that regard, it was in Mbugua vs. Republic [2010] KECA 109 (KLR) that: “Lastly, had we found that the extra judicial detention was unlawful and that it is related to the trial, nevertheless, we would still consider the acquittal or discharge as a disproportionate, inappropriate and draconian remedy seeing that the public security would be compromised. If by the time an accused person makes an application to the court, the right has already been breached, and the right can no longer be enjoyed, secured or enforced, as is invariably the case, then, the only appropriate remedy under Section 84 (1) would be an order for compensation for such breach. The rationale for prescribing monetary compensation in Section 72 (6) was that the person having already been unlawfully arrested or detained such unlawful arrest or detention cannot be undone and hence the breach can only be vindicated by damages. Again, we respectfully agree with Emukule, J. that breach of Section 72 (3) (b) entitles the Page 24 of 16

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aggrieved person to monetary compensation only. That is the relief that this Court gave in Kihoro vs. Attorney General of Kenya [1993] 3 LRC 390 for breach of right to personal liberty.” Page 25 of 16

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We say no more except to find the appeal on this ground to be without merit. 34. On the appeal against the sentence, we start by appreciating that the sentence was passed prior to the decision of the Supreme Court in the Muruatetu Case, and the learned Judge cannot be faulted for his conclusion in his sentencing notes that: “Flowing from the above considerations, the penalty for murder convicts is a mandatory death sentence. This court can only impose the death penalty and has no discretion in the matter.” 35. However, the Supreme Court in the Muruatetu Case decreed that: “We now lay to rest the quagmire that has plagued the courts with regard to the mandatory nature of section 204 of the Penal Code. We do this by determining that any court dealing with the offence of murder is allowed to exercise judicial discretion by considering any mitigating factors, in sentencing an accused person charged with and found guilty of that offence. To do otherwise will render a trial, with the resulting sentence under section 204 of the Penal Code, unfair thereby conflicting with articles 25(c), 28, 48 and 50(1) and (2)(q) of the Constitution.” It therefore follows that the appellant’s cry for resentencing must be answered in the affirmative. 36. As to where the resentencing should take place, we again find the answer in the Muruatetu Case in the following passages: “We agree with the reasoning of the courts in the authorities cited and the submissions of Page 26 of 16

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the 1st petitioner, the DPP and the amici curiae. Comparative jurisprudence is persuasive and we see no need to deviate from the already established Page 27 of 16

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practice. The facts in this case are similar to what has been decided in other jurisdictions. Remitting the matter back to the High Court for the appropriate sentence seems to be the practice adopted where the mandatory death penalty has been declared unconstitutional. We therefore hold that the appropriate remedy for the petitioners in this case is to remit this matter to the High Court for sentencing. It is prudent for the same court that heard this matter to consider and evaluate mitigating submissions and evaluate the appropriate sentence befitting the offence committed by the petitioners.” That is what we will do. 37. In summary, the appeal against conviction fails and is dismissed. However, the appeal against sentence succeeds and the sentence imposed on the appellant is set aside. The matter is remitted to the Judge of the High Court at Garissa for re-hearing on sentence only, on a priority basis. 38. It is so ordered. Dated and delivered at Nairobi this 25th day of September 2026. W. KORIR ...…................... …… JUDGE OF APPEAL L. M. NDOLO ...…................... …… JUDGE OF APPEAL A. I. HASSAN ...…................... Page 28 of 16

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…… JUDGE OF APPEAL I certify that this is a True copy of the original Signed DEPUTY REGISTRAR Page 29 of 16

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