Mugambi v Republic

5. Mercy was barely two months old in Garissa when on that fateful day, the appellant arrived at PW1’s home at about 9 pm. He had a bottle of Kenya Cane, some alcoholic beverage, which he took swigs of. He asked PW1 where Mercy was, and was informed that she had gone to pay some money at her ‘chama’ an association of female friends. The appellant would hear none of it and made threats that “today I will nish her,” in reference to Mercy whom he referred to as a Malaya (prostitute). PW1 told the trial court that the appellant, who joined her and his family in the ugali dinner they were having, was wearing “expanded trousers,” and she saw something protruding in them but she did not know what it was. Shortly after eating, the appellant left PW1’s home as she retired to bed. It was some time between 9 and 10 pm. 6. PW1’s sleep was short-lived, however, for, about two hours later, she received a telephone call from her brother, PW2 relaying the harrowing news that the appellant had slit Mercy’s throat. PW2 himself narrated to the trial court that on the material night, at about 10pm, Mercy went to his house there in Garissa in the company of a neighbour called Tracey. Mercy had come to collect our. Shortly thereafter, the appellant came to the house and picked a quarrel with Mercy which lasted a little while before PW2 persuaded them to stop. He asked the appellant to leave and the latter complied. PW2 remained with Mercy and Tracey in the house until 11.30pm when he escorted the ladies towards Mercy’s house. 7. While enroute, they were accosted by the appellant who emerged from a turn on the road, behind a “Mathenge” tree. The place was fully illuminated by security lights and PW2, clearly saw the appellant wielding a panga (machete), with which he cut Mercy on the back of her neck and she fell down instantly. The appellant took to his heels as PW2 gave chase, but soon gave up. He rushed to PW1’s house nearby and called her to come to the scene. They found that life had ebbed out of Mercy, whose body lay cold and lifeless, face down in the dust. They made haste to the police station and reported the incident. Five police ocers arrived at the same scene and took the body to the mortuary. 8. A post-mortem examination conducted by Dr. Richard Njoroge a forensic pathologist on 22nd January 2014 described the injuries suered by Mercy, in a morbid testament to the ferociousness of the attack, as these; 1. A 9cm long cut 3.5 cm. Deep laceration with incised margin at the back of the neck, running from left to right, with upward angulation, with massive hemorrhage. 2. All the strap muscles of the neck, the cervical vertebra, are transected. 3. The spinal cord is completely transected at the 6th vertebra level.” 9. The appellant remained in hiding until he was traced and apprehended in Kili in the year 2015. He was then arraigned before the High Court in Garissa on a charge of murder and the evidence led by the prosecution is as we have set it out herein. When placed on his defence, the appellant elected to give an unsworn statement. He stated that he was arrested in Kili over some dispute over a shop he had sold in Mombasa, for which he had not been paid. Later, some two police ocers came from Meru and took him to Mutuati and informed him that he was arrested for killing their brother. He was taken to Meru prison and while there a warrant came stating that he was wanted for killing his wife Mercy. He denied any knowledge of the murder and claimed to have been framed. 10. C. Kariuki, J. considered the evidence placed before the High Court. By a judgment dated 16th April 2020 he found that the prosecution had established their case beyond reasonable doubt and convicted the appellant. After considering the mitigation oered for the appellant to the eect that the was “extremely remorseful and [the oence] happened due to matrimonial issues between him and the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1818/eng@2026-09-25 2

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deceased,” the learned Judge found the fatal cut by the appellant to have been brutal, unprovoked and unjustied, calling for a sti sentence. He was accordingly sentenced to 40 years imprisonment. 11. Before us, the appellant brings this appeal aggrieved by both the conviction and sentence. In the grounds of appeal and written submissions made by his learned counsel Ms. Okwiri, which were highlighted before us by Mr. Olieti, learned counsel who held her brief, the appellant faults the learned Judge on four fronts, namely: i. Reliance on insucient circumstantial evidence. ii. Finding the appellant guilty absent proof he caused the deceased’s death. iii. Convicting without malice aforethought being established. iv. Meting out a sentence too severe. 12. Regarding circumstantial evidence, counsel took issues with the prosecution’s failure to call Tracey, the neighbour who was with the deceased and PW2 during the incident, to “corroborate” the evidence of PW2. When we asked him whether there was legal requirement that the evidence of PW2 be corroborated by such evidence as he suggested, counsel very properly conceded that there was not. He also conceded, as he had to, that the evidence of PW2, a witness who was present and saw the appellant attack and inict the fatal injury, was not circumstantial but direct yet-witness evidence. The cited cases of R. vs. Kipkering Arap Koske & Anor 16 EACA 135 and R vs. Richard Itweka Wahiti [2020] eKLR, which speak to the law on circumstantial evidence are of no assistance to the appellant’s case. Nor does Chiragu & Anor vs. Republic [2021] KECA 342, which was cited on the doctrine of ‘last seen,’ because that doctrine is of no applicability where, as here, the evidence relied on is direct eyewitness account of the fatal attack. 13. As to whether the appellant did commit the unlawful act that caused then Mercy’s death, counsel cited Republic vs. Guzambizi S/o Wesonga [1948] 15 EACA 65 to the eect that death is excusable by law in circumstances of reasonable defense of self, property, as a result of accident or misadventure, or in the protection of life or property of a third party. We were unable to fathom the relevance of that case in the circumstances of this case. Nor are we persuaded by the contention that the non-production of the oensive panga or machete in any way weakens the case against the appellant. The evidence on record, from the testimony of PW2, is that immediately he inicted the fatal cut, the appellant took to his heels while carrying the weapon. It’s non-production in the face of cogent, unshaken evidence that it is he that used the sharp blade to inict the cut, as conrmed by the post-mortem report, does not weaken the case against the appellant. 14. Next, the appellant’s counsel sought to persuade us that malice aforethought, the mens rea that renders a homicide a murder, was not established. It would seem that the appellant was attempting to belatedly raise the defence of intoxication but we are unable to agree. The evidence established that even though the appellant may have taken some Kenya Cane, he was nonetheless in command of his faculties. He did have lucid and coherent enough conversations with both PW1, at whose house he ate ugali though at the same time issuing threats and expletives directed at the then absent Mercy, and in the quarrel that followed between him and Mercy before he was asked to leave by PW2. It is after this that he lay in wait and ambushed Mercy before inicting the fatal injury. We are satised that malice aforethought was well established as submitted by Ms. Vitsengwa the respondent’s learned Prosecuting Counsel who urged that the nature of the weapon used by the appellant, and the spot at which it was aimed was clearly intended to cause death or grievous injury to Mercy and it did, in fact, lead to her death on the spot. We have already adverted to the nature of injury caused which shows that the appellant used a weapon so sharp, with force so great that he all but decapitated the deceased. There https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1818/eng@2026-09-25 3

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is absolutely no doubt that malice aforethought, as dened by section 206 of the Penal Code, was well established beyond reasonable doubt. The appellant threatened to “nish” and shortly thereafter inicted an injury that was calculated to and did in fact cause the death of his young wife. Mr. Olieti did in fact concede that the injury inicted was suggestive of malice aforethought. 15. An issue did arise whether we should make an adverse inference from the prosecution’s failure to call Tracey who was present when the appellant attacked and mortally wounded Mercy. The same goes for the failure to call the police ocers who arrested and those who investigated the oence. Ms. Vitsengwa readily conceded that Tracey ought to have been called and thought that the Court, if so-minded could draw an adverse inference in line with Bukenya vs. Uganda [1972] EA 549, which we asked her about. We have mulled over this issue and, whereas we deprecate the prosecution’s failure to call those witnesses, we think that it is not every failure to call certain witnesses that must lead to an adverse inference and probably an acquittal. Each case must depend its own peculiar facts the most important consideration being whether, notwithstanding the testimony of the uncalled witnesses, the evidence on record would still suce to prove the case beyond reasonable doubt and thus justify a conviction. We think that the evidence before the trial court, and clear on the record, was overwhelming. It was not “barely adequate,” qua Bukenya, to justify the making of the adverse inference. We are therefore satised, on our independent and exhaustive re-evaluation of the evidence as is our duty on a rst appeal (See Okeno vs. Republic [1972] EA) that the oence was established to the required standard and the learned judge was justied to return a verdict of guilty. 16. Turning nally to sentence, we note that the oence of murder, being the most serious of all oences as it deprives the victim of life, also attracts the most severe sentence of death in our penal statute. The sentence is, however, not mandatory as was stated by the Supreme Court in Muruatetu & Another vs. Republic; Katiba Institute & 5 Others (Amicus Curiae) [2017] KESC 2 (KLR) as the courts do retain discretion to impose appropriate sentences, which may still be death in deserving cases. In the present case, the appellant was sentenced to 40 years imprisonment and his learned counsel urges that the same is excessive. Strangely, he cites Gedion Kenga Maita vs. Republic Criminal Appeal No. 35 of 1997 and Benard Seneyo Letikirichi vs Republic Criminal Appeal No. 2 of 2005, both cases of manslaughter, with sentences of 5 and 7 years, respectively, and somehow hopes to persuade us to thus reduce the sentence herein. We consider the reliance on those cases to be, respectfully, quite misconceived. 17. Equally misconceived, and even paradoxical, is the submissions made on behalf of the appellant that “the appellant has two girls that needs (sic) his attention and love and that the death arose in circumstances that were mysterious.” This submission little moves us. True, the young girls are in a tragic situation but they are victims of the appellant’s act that rendered them motherless. Their plight evokes, not sympathy and consideration for the appellant, but an appropriate degree of opprobrium. It cannot be a reason for the appellant to deserve a lesser sentence. The contrary would be more logical in full consideration of the ethos that informs the Sentencing Guidelines. In short, there is no basis upon which we would be entitled, even were we so minded (and we are not) to interfere with the sentence imposed upon this cold-blooded wife-killer. 18. We have said enough to show that the appeal is devoid of merit. 19. It is accordingly dismissed in its entirety. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026. P. O. KIAGE ...................... JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1818/eng@2026-09-25 4

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JAMILA MOHAMMED ...................... JUDGE OF APPEAL G. V. ODUNGA ...................... 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/2026/1818/eng@2026-09-25 5

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