Kevin Oketch Bina alias Kirutu & 4 others v Republic

2. The appellants were arraigned before the trial court on the information, charging them with murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence being that on the 15 th October 2017, Page 2 of 32

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at Nyasoko Sub-location, Suna lower location, Suna West Sub- County, within Migori County, jointly with others not before court, they murdered John Jaoko Maobe (the deceased). They denied the information, setting in motion a trial in which the prosecution called seven (7) witnesses in an attempt to prove its case against the appellant. 3. The prosecution’s case, according to Elida Achieng Jaoko, (PW1), the deceased’s daughter, was that on the material day at about 4pm, the 4th appellant who was armed with a machete (panga), went to deceased’s home looking for the deceased. PW1 informed the 4th appellant that the deceased was grazing cattle near the river and he proceeded towards the river in the company of the other appellants. Four of the people were armed with pangas while the others were armed with clubs (rungus). Shortly thereafter, she heard screams from the direction of a river and she then saw the group escorting the deceased towards the deceased’s homestead. She heard the Ouma Odoyo (the 3rd appellant) telling the deceased that he would be “finished” that day. The deceased attempted to run to the house of his first wife and on reaching the third wife’s house, she saw the 3rd appellant cut the deceased with a panga on the head before Page 3 of 32

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the deceased fell down and Odhiambo Yai also cut the Page 4 of 32

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deceased on the neck with a panga. The other assailants joined in the attack as she screamed calling for help. The appellants then covered the deceased with tree branches before setting the house of the deceased’s 3 rd wife’s houses on fire, causing the deceased’s wives to run away in fear. The assailants also cut banana trees, slaughtered the deceased’s cattle and carried away the meat. PW1 identified the 1st to 5th appellants in court but two others, Odhiambo Yai and Okinyi Tumbo were not in court. According to PW1, it was alleged that the deceased had bewitched Jared Adek Ng’ang’a, which caused hostility between the two families. She maintained that the appellants who were neigbours and well known to her, killed the deceased and that the 3rd appellant is from the family of Jared Adek Ng’ang’a. 4. Jared Okeyo Jaoko Maube, (PW2), the deceased’s son, testified that he was at home on the material day at around 4pm. Jared Adek Nga’ng’a who it had been alleged was bewitched by the deceased, was being buried. The deceased was grazing cattle near the river, when the 4 th appellant who was armed with a panga, went to their homestead looking for the deceased. The 4th appellant walked down towards the Page 5 of 32

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river but crossed to the home of the 3rd appellant. Then the 5 appellants as well as Page 6 of 32

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Odhiambo Oyai and Okinyi Tumbo, who were all armed with pangas and rungus, left 3 rd appellant’s home and went towards the deceased vowing that they would finish the deceased. PW2 watched as the group brought the deceased to the homestead. The 3rd appellant then cut the deceased on the head with a panga; Odhiambo Oyai cut the neck; the 1st appellant struck the deceased’s hand with a club while the 2nd appellant struck him at the back. The 4th appellant also cut the deceased’s neck, leaving only skin connecting the head to the body. The group then burnt two houses in the deceased’s homestead, destroyed banana trees, slaughtered cattle and carried away the meat. The area Chief and Assistant chief were informed and they called the police who came and took the deceased’s body to the mortuary. The attackers who were relatives of Jared Adek Nga’ng’a were neighbours and well known to PW2. 5. On his part, Tom Ouma Ongoche, (PW3) Senior Assistant Chief, and who knew the appellants, received a call from George Okinyi Jaoko (PW 4) that some people had attacked the deceased and burnt houses at his homestead. PW3 called and briefed the area Chief and together they proceeded to the scene where they found villagers already Page 7 of 32

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there at and houses were on fire. PW3 took them to the deceased’s body which had Page 8 of 32

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deep cut wounds to the neck, back and the head. PW3 called the police who came and took the body to the mortuary. PW4 mentioned the appellants and two other persons as the assailants and informed PW3 about the allegation that the deceased had bewitched someone in the village. 6. PW4, George Okinyi Jaoko, also a son of the deceased, gave similar account to that of PW1 and PW2, adding that he called PW3 and informed him what had happened to the deceased; that the appellants were from the village and were well known to him and that he witnessed the appellants attack the deceased killing him on the spot. 7. Dr Silvester Olang (PW5) performed the post-mortem examination on the deceased’s body after it was identified to him by Joseph Okeyo Jaoko and Joseph Odhiambo Jaoko who were accompanied by a police officer, Simiyu. He noted four deep cut wounds on the neck, head and a fracture of the C2 vertebra. He opined that the cause of death was bleeding secondary to the deep cut wounds. 8. Inspector of Police Joseph Onyango Ounga (PW6) then based at Masara AP Camp, was the one who arrested the 1 st, 2nd and 3rd appellants at their respective homes on 3 rd December 2017, Page 9 of 32

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following an arrest warrant issued on 15 th November 2017. The three were later rearrested by CID officers. 9. Lastly, Police Constable Milton Mwanzi, (PW7) the investigating officer in the case, received information about the murder following which he visited the scene and he found the deceased’s body in a tobacco and maize plantation. The body had several injuries, including deep cuts wounds on the head, the back of the head and the neck. PW3 informed him that two houses had been burnt and that the deceased’s family knew the persons responsible and gave the names of the seven suspects. The scene was processed; photographs taken and he visited the burnt houses. The body was taken to the mortuary for preservation pending autopsy. He later organised for the post mortem examination and recorded statements from witnesses which revealed that the deceased was killed on the allegation that he had bewitched Jared Adek Ng’ang’a. The appellants were arrested and charged with the deceased’s murder. 10. When called upon to defend themselves, the appellants gave sworn testimonies except the 3rd and the 5th appellant who gave unsworn testimonies. The appellants also called Page 10 of 32

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witnesses. The 1st appellant (DW1), testified that on the material day he was in church until 6.00 pm and that it was after he arrived home at Page 11 of 32

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around 7pm that his wife informed him that the deceased had been killed because he was a witch. He went to meet the 2nd appellant who confirmed the deceased’s death. On 3rd December 2017, he was arrested by police officers while he was sleeping and taken to the police vehicle where he found the 3rd appellant. They were taken to Masara AP Camp before being transferred to Migori Police Station the following day and they were later charged with the offence. 11. The 1st appellant called his wife Irene Achieng Oketch, (DW2) who testified that the 1st appellant went to church in the morning; that she was at home when the deceased was killed and she saw people moving towards the deceased’s homestead but she could not identify the attackers. She later informed the 1st appellant about the incident in the evening when he returned from church. 12. The 2nd appellant, (DW3) on his part testified that he left home on 14th October 2017 at 5pm and went to Osiri gold mines where he remained until 6pm the following day when he returned and arrived home at about 8pm. He later went to visit the 1st appellant and that was when he learnt that the deceased had been killed by a group of people. He called Joseph Otieno Tai, (DW4) who testified on his behalf Page 12 of 32

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that of the 4th appellant, Page 13 of 32

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that he met the 2nd appellant at Osiri goldmines on 14th October 2017 at 2pm; thereafter they went into the mine at 3pm and came out on 15th October 2017 at 9am; shared the stones and left for Masara where they arrived at 11am. The 4th appellant crashed the stones; washed the gold dust after which they went to a bar until 8pm when they parted ways. He later heard that the deceased had been killed by members of the public but he did not know why he had been killed. 13. The 3rd appellant, (DW5), testified that on the material day, he attended church service until about 2.30 pm. He then attended a church committee meeting until 4.30 before he went to the god mines at Masara. At 5.30 pm, he heard that the deceased had been killed by a mob. He called his wife, Nancy Atieno Ouma, (DW6) who testified that she went to church with the 3rd appellant and the children; that after the service, she returned home with the children and left the 3rd appellant in church and that he returned home at about 6pm. She confirmed that the appellants are family members and that they were later arrested and charged with the deceased’s death. 14. On his part, the 4th appellant, (DW7) testified that on the Page 14 of 32

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material day he went to masara where he arrived at about 11am and he met the 2nd appellant (DW4), who had brought stones Page 15 of 32

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from Osiri. The 2nd appellant asked him (4th appellant) to crush the stone which he completed at about 3pm and left at about 6pm. When he arrived home, his wife informed him that the deceased had been killed. He was later arrested and charged with the murder. The 4 th appellant called his wife Rose Ouma, (DW8) who testified that the 4th appellant went to Masara to wash gold dust and returned at 6pm; that she heard the commotion from the deceased’s homestead but she did not witness what happened. 15. The 5th appellant, (DW9) testified that on the material day, he left home at around 6pm and went to Osiri goldmines; that he came out of the mine at 3pm and crushed stones until 5pm when he went home and arrived at about 6pm when his wife informed him that the deceased had been killed. He called Jacob Ochieng, (DW10) who testified that on the material day, he left home with the 5 th appellant for mining and they arrived at the mines at about 8pm; that he was at the mines with the 5th appellant until about 6pm. 16. After considering the evidence of both the prosecution and the defence, the trial court was satisfied that the prosecution had proved its case against the appellants beyond reasonable Page 16 of 32

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doubt, convicted the appellants for murder and sentenced them to 15 years' imprisonment each. 17. Aggrieved by both the conviction and sentence, the appellants lodged a memorandum of appeal dated 20 th May 2026 and raised several grounds, faulting the trial court in: convicting them on contradictory, inconsistent and unreliable evidence that did not prove murder beyond reasonable doubt; relying on the evidence of relatives of the deceased, which was influenced by emotional allegations of witchcraft and family hostility, without independent corroboration; faulting the prosecution for failing to call independent witnesses; failing to produce the murder weapons or forensic evidence linking any of them to the offence and failing to properly evaluate their respective alibi defences and the corroborative evidence of their witnesses thereby shifting the burden of proof to them; convicting them on the basis of the doctrine of common intention yet the prosecution did not prove prior agreement, shared unlawful purpose or the individual role of each appellant; failing to address material inconsistencies concerning the identification of the assailants, the weapons allegedly used, the sequence of the events, and the acts attributed to each Page 17 of 32

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appellant and Page 18 of 32

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imposing harsh and excessive sentences in violation of their constitutional rights. 18. At plenary hearing, Ms. Lumallas, learned counsel appeared for the appellants while Ms. Busienei, held brief for Ms. Ikol, learned prosecution counsel, for the respondent. The appellants appeared from prison through video link. Both counsel relied on their respective written submissions entirely in urging their respective positions in the appeal. 19. Ms. Lumallas submitted through her submissions dated 20th May 2026, that the prosecution did not prove the case against the appellants beyond reasonable doubt thus, their conviction was unsafe; that the prosecution relied on the collective accusation instead of establishing the role each appellant played; that the evidence of PW1, PW2 and PW4, who were close relatives of the deceased, was inconsistent regarding the sequence of events; the persons involved, the weapons they allegedly carried, and the acts attributed to each appellant. 20. Counsel contended that given the pre-existing family hostility based on the allegations that the deceased bewitched Jared Adek Ng’anga, Page 19 of 32 the conviction was

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founded suspicion on evidence and heavily hostility, influenced rather than by objective independent evidence. Counsel cited the case of Page 20 of 32 emotion, and

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Ndungu Kimanyi v Republic [1979] KLR 282, for the proposition that evidence relied upon for a conviction must be credible and trustworthy. It was Ms. Lumallas’ further submission, that the prosecution did not call independent witnesses from among the villagers despite the evidence by PW3 that many people were present at the scene; that no murder weapon was recovered or produced in evidence and that there was no forensic evidence linking any of the appellants to the commission of the offence. Counsel cited the case of Bukenya & Others v Uganda [1972] EA 549, for the proposition that where the prosecution fails to call material witnesses, the court may infer that their evidence would have been adverse to their case. 21. Ms. Lumallas asserted that the trial court did not properly evaluate the appellants’ evidence and the alibi defences that they were not at the scene and wrongly rejected it. It was her view, that the prosecution did not disprove the specific alibi defences raised by the appellants and cited the case of Kiarie v Republic [1984] KLR 739, for the proposition that it is the duty of the prosecution to disprove alibi defences and an Page 21 of 32

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accused person bears no burden of proving the truthfulness of that alibi. Page 22 of 32

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22. Counsel asserted that the trial court erroneously invoked the doctrine of common intention without evidence of a prior agreement or coordinated unlawful purpose among the appellants; that the prosecution did not identify the person who inflicted the fatal injuries or establish how each appellant participated in the commission of the offence, urging that mere association or presence could not justify a joint conviction. 23. Regarding sentence, counsel contended that the sentences imposed were harsh and excessive; that the trial court did not sufficiently consider the appellants’ mitigation, family responsibilities, prospects of reform and the requirement of individualized sentencing. Counsel cited the Supreme Court decision in Muruatetu & another v Republic & Others [2017] KESC 2 (KLR) to emphasize on individualized sentencing and consideration of mitigating circumstances of each case. Counsel urged the Court to allow the appeal. 24. Opposing the appeal, Ms. Ikol submitted through her submissions dated 17th June 2026, that a first appellate court is required to independently re-evaluate the entire evidence, and come to its independent conclusions and cited the Page 23 of 32

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decisions of Gabriel Kamau Njoroge v Republic [1987] KECA Page 24 of 32

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4 (KLR) and Kamau v Mungai (2006) 1 KLR 150 in support of this submission. 25. Counsel contended that the prosecution proved the case against the appellants beyond reasonable doubt; that PW1, PW2 and PW4, knew the appellants and their evidence placed the appellants at the scene; that they described in details the appellants’ participation in attacking the deceased and that PW1 was clear that the group, was armed with pangas and rungus; that the appellants went where the deceased was grazing cattle, escorted him back to his homestead and fatally attacked him. According to counsel, PW2 attributed specific acts to the appellants, including that the 3rd appellant cut the deceased on the head with a panga; that the 1st appellant struck the deceased on the hand; that the 2nd appellant struck the appellant at the back; that the 4th appellant cut the deceased on the neck, and that PW4 stated that the 3rd and 4th appellants attacked the deceased using pangas. 26. Regarding malice aforethought, Ms. Ikol maintained that malice aforethought established since the appellants went looking for the deceased while armed with dangerous weapons; they acted in a coordinated manner following Page 25 of 32

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allegations that the deceased had bewitched Jared Adek Ng’ang’a person, and Page 26 of 32

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that they targeted vital parts of the deceased’s body, the head and the neck causing severe injuries with fatal consequences. 27. With regard to the defences of alibi, counsel asserted that the appellants’ alibi defences were disproved by the prosecution witnesses who positively recognized and placed each appellant at the scene. According to counsel, under section 21 of the Penal Code, the appellants acted collectively; the 4th appellant went searching for the deceased which was followed by the rest of the attackers, that they escorted the deceased from the river to his homestead where they jointly attacked him in a coordinated attack which demonstrated a shared unlawful purpose to kill the deceased. 28. Counsel cited the decision of Abonyo v Republic [2025] KECA 608 (KLR), for the proposition that where a group of persons acts in concert in pursuit of an unlawful purpose, it is not necessary for the prosecution to prove which member of the group inflicted the fatal blow, and that liability arises where an accused person was a participant in the common unlawful enterprise and death was a probable consequence of that enterprise. Page 27 of 32

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29. On sentence, counsel contended that the sentence of 15 years’ imprisonment imposed was lawful though lenient Page 28 of 32

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considering the brutal and premeditated attack on the deceased. She cited the decision of Francis Karioko Muruatetu (supra) for the submissions that while judicial discretion and mitigation must be considered, sentencing should also reflect the gravity and circumstances of the offence. Counsel again cited the case of Bernard Kimani v Republic [2002] eKLR for the proposition that an appellate court should not interfere with the sentence unless the trial court acted on a wrong principle, overlooked material consideration, or imposed a manifestly excessive sentence, which was not the case in this appeal. Counsel urged this Court to dismiss the appeal. 30. On a first appeal, the duty of this Court is to reconsider, reassess and reevaluate the evidence afresh and draw its own inferences and conclusions on both the points of fact and law, while bearing in mind that it did not see witnesses as they testified and give due allowance for that. (Gabriel Kamau Njoroge v Republic [1987] eKLR). 31. We Have considered the record, the submissions made on behalf of the parties and the applicable law. We discerned Page 29 of 32

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three issues for our determination, namely; whether the prosecution proved the information of murder against the appellants beyond reasonable appellants’ alibi defences were Page 30 of 32 doubt; whether the

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properly considered; and whether the sentences imposed against the appellants were lawful and appropriate in the circumstances. 32. Section 203 of the Penal Code provides that any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder. To secure a conviction for murder therefore, the prosecution must prove three key ingredients; the death of a person and the cause thereof; that the death was as a result of an unlawful act of commission or omission by the accused and that the act was actuated by malice aforethought. 33. This position was enunciated in Nzuki v Republic [1993] KECA 83(KLR), where this Court stated as follows: “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 subject; The intention to cause death; The intention to cause grievous bodily harm; Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse with the intention to expose a potential victim to that risk as the result of those acts. It does not matter Page 31 of 32

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in such circumstances accused desires those Page 32 of 32 whether the

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consequences to ensue or not.” (See also Joseph Kimani Njau v Republic [2014] eKLR, 34. On the issue of death, there is no substantial controversy in the present appeal whether the death of the deceased occurred or not. PW1, PW2 and PW4 witnessed the deceased being attacked and killed; PW3 went to the scene, and he saw the deceased’s body which had multiple cut wounds. PW7 also saw the deceased’s body; took the body to the mortuary and organized for the post mortem, while PW5 conducted the post mortem on the deceased’s body which had deep cut wounds on the neck, the head and fractured 2C vertebra. He opined that the cause of death was bleeding secondary to the cut wounds. This evidence proved beyond reasonable doubt, the death of the deceased and the cause thereof. 35. On whether the appellants were responsible for the deceased’s death, the appellants maintained in this appeal, as they did before the trial court, that they did not kill the deceased and they have faulted the trial court for convicting them as the perpetrators of the offence. The prosecution contended that the appellants killed deceased arguing that the evidence of PW1, PW2 and Page 33 of 32

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PW4 was clear that they Page 34 of 32

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witnessed the appellants who were well known to them kill the deceased. 36. We have considered the record of the trial court and reevaluated the evidence ourselves. PW1, PW2 and PW4 witnessed the attack on the deceased who was their father. The 4th appellant went to the deceased’s home and inquired from PW1 the deceased’s whereabouts and upon being told that he was grazing cattle near the river, the 4th appellant and the rest of the appellants proceeded to where the deceased was, brought him to his homestead and attacked him with pangas and rungus before setting the houses on fire. They destroyed banana trees and cut the cows before leaving with the cow meat. The witnesses were also clear that the appellants were neighbours and well known to them, a fact that was supported by PW3 the area Assistant Chief. 37. The appellants raised alibi defences that on the material day they were not at the scene of crime because they were at different places. The trial court considered the alibi defence of each appellant against the evidence of PW1, PW2 and PW4, rejected those alibi defences stating as follows: Page 35 of 32

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“I have considered the accused persons’ alibi defences in light of PW1, PW2 and PW4’s evidence and testimonies of the Page 36 of 32 I find that the

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three siblings was unchallenged and so far, no good reason has been shown as to why they would frame these accused persons out of the villagers.” 38. When an accused raises a defence of alibi, he does not assume the responsibility of proving the truthfulness of his defence. The prosecution still bears the burden of proving the falsity or otherwise of that alibi defence. In Kiarie v Republic (supra), this Court stated as follows: “An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge preferred against him does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable.” In Victor Mwendwa Mulinge v Republic [2014] KECA 710 39. (KLR), this Court again stated that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies with the prosecution. 40. We have on our part considered the alibi defences raised by each of the appellants vis a vis the prosecution evidence on record. The 1st appellant’s defecne was that on the material day he spent the day in church until 6.00 pm and returned home at around 7pm when his wife Page 37 of 32

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informed him that the deceased had been killed on suspicion that he was a witch. Page 38 of 32

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He then went to meet the 2 nd appellant who confirmed the deceased’s death. The 1st appellant’s wife (DW2) supported the 1st appellant’s defence that he spent the day in Church. She also stated that she was at home when the deceased was killed and that she saw people moving towards the deceased’s homestead but she did not identify them. This defence was only raised during defence hearing. The 1st appellant’s wife (DW2) could not tell where the appellant was the whole day since they were not together. 41. The 2nd appellant’s alibi defence was that he left home on the morning of 14th October 2017 and went to Osiri gold mines until the following 15 th October when he returned home at about 8pm. He later went to visit the 1 st appellant where he learnt of the murder. Joseph Otieno Tai, (DW4) testified in support of his defence and the defence of the 4th appellant, that he was with the 2 nd and the 4th appellants at Osiri gold mines from 14 th October 2017 and they returned home on 15th October 2017. 42. On his part, the 3rd appellant’s, defence was that day, he was in church until 4.30 when he went to Masara. He later heard about the murder which was confirmed by his wife Page 39 of 32

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when he arrived home in the evening. His wife, Nancy Atieno Ouma, Page 40 of 32

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also testified that they went to church with the 3rd appellant but she returned home with the children leaving the 3 rd appellant remained in church and returned home 6pm. 43. The 4th appellant’s defence just like the 2 nd appellant, was he was at Masara which was supported by his wife Rose Ouma, (DW8) that he went to Masara to wash gold dust and that he returned home at 6pm. Her evidence was clear that she was not with the 4th appellant and she could not therefore tell where he was the whole day. 44. On his part, the 5th appellant’s defence was that on the material day, he left for Osiri gold mines in the morning; that he later crushed stones until 5pm when he went home and arrived at 6pm when he learnt from his wife about the deceased’s death. Jacob Ochieng, (DW9) testified that he went to the gold mine with the 5 th appellant in the morning and they returned at about 6pm. 45. The appellants only raised the alibi defences during defence hearing. In Victor Mwendwa Mulinge v Republic (supra), this Court stated as follows: “In a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilt is established beyond all Page 41 of 32

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reasonable doubt, take into account the fact that he had not put Page 42 of 32

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forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigation and thereby prevent any suggestion that the defence was an afterthought.” (See also Karanja v Republic [1983] KLR 501). 46. In the present appeal, the appellants had an opportunity to raise the alibi defences early but chose to do so late during defence hearing. Moreover, the evidence of the 1st and 3rd appellants’ witnesses especially their wives, that the 1st and 3rd appellants were in church was not helpful because they could not testify that these appellants were actually in church at the time of the commission of the offence since they were not together. 47. The 2nd and 4th appellants alibi defences were supported by DW4 that they went to the gold mine. The 4 th appellant also called his wife to support the position that he went to the goldmine. She was not with him and she could not therefore tell where the 4th appellant was. Regarding the evidence of DW4 that he was with the 2nd and the 4th appellants was also not conclusive that the 2nd and 4th appellants were not at the scene at the time of the offence. 48. When the alibi defences are considered vis a vis the Page 43 of 32

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evidence of PW1, PW2 and PW4 who witnessed the deceased’s attack Page 44 of 32

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and subsequent killing, we are inclined to agree with the trial court that there was no reason why PW1, PW2 and PW4 would pick the appellants, out of other villagers and implicate them as the people who killed the deceased. According to PW1, PW2 and PW4, the appellants were from the neighbourhood and were well known to them which was supported by PW3. The incident took place in broad daylight which enabled the witnesses to recognize the appellants as the perpetrators of the crime. 49. The 1st appellant’s wife (DW2) also testified that she was at home when the deceased was killed and that she saw people although moving towards the deceased’s she did not identify them homestead while the 3 rd appellant’s wife (DW6) confirmed that the appellants were family members which confirmed the fact that they were neighbours and therefore affirmed the evidence of PW1, PW2 PW3 and PW4 that the appellants were well known. 50. PW1, PW2 and PW4 were also clear about what the appellants said and did during the attack. The appellants being persons known, the evidence of PW1, PW2 and PW4, was that of recognition of known assailants which is Page 45 of 32

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more reliable, assuring and satisfactory than that of identification Page 46 of 32

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of a total stranger. (See Anjononi & Others v Republic [1980] eKLR.) 51. A review of the evidence on record further shows that PW1, PW2 and PW4 mentioned to PW3 the names of the appellants as the people who attacked and killed the deceased. This was the first report they made to a person in authority, namely; PW3, a position they maintained during the trial that the appellants caused the deceased’s death. The trial court appreciated and properly placed weight on the first report in which PW4 mentioned the appellants to PW3 as the killers, citing the decision in Terekali & another v Republic [1952] EA 259, that the first report to a person in authority is a good test for checking the accuracy and truthfulness through which the subsequent statements can be gauged. 52. We agree with the trial court’s reliance on this principle as this Court has affirmed the position that the first report on the commission of a crime is a crucial tool for testing the veracity and consistency of a complainant's or the witness's subsequent evidence or testimony in court. (See Peter Mugendi Mwaniki v Republic [2015] KECA Page 47 of 32

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438(KLR); Muchesia v Republic [2023] KECA 1448 (KLR)). Page 48 of 32

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53. The appellants again complained that the trial court wrongly applied the doctrine of common intention and that the prosecution did not identify the specific roles each appellant played in the commission of the offence. The respondent maintained that PW1, PW2 and PW4 witnessed the appellants attack the deceased and they stated the role each of the appellants played and where they attacked the deceased. 54. The doctrine of common intention flows from section 21 of the Penal Code which provides as follows: “When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose, an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.” 55. To amount to common intention, there must be two or more persons; intention; the the persons must common intention form a common must be towards prosecuting an unlawful purpose in conjunction with one another; an offence must be committed in the process; and the offence must be of such a nature that its commission was a probable Page 49 of 32 consequence of the

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prosecution of the unlawful purpose. Page 50 of 32

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56. In this regard, this Court stated in Abonyo v Republic (supra) as follows: “In Kenyan jurisprudence, the doctrine of common intention is applied to hold individuals criminally liable when they act together with a shared purpose that leads to the commission of an offense. This Court has addressed this doctrine in various cases, including those involving mob violence like the present one.” 57. This Court again had occasion to deal with the same issue in Ombati & 3 Others v Republic [2025] KECA 469 (KLR), where it stated as follows: “The evidence implicating the four appellants shows that they were all acting in concert in attacking the deceased. They were no doubt pursuing an unlawful purpose of assaulting the deceased of which death was a probable consequence. In the circumstances, the appellants must all be deemed to have had the common intention of committing the offence of murder which arose from their common purpose of attacking the deceased.” 58. In the present appeal, the evidence on record shows that the appellants went in search of the deceased; they led him to his home where they set upon him and assaulted him with pangas and rungus causing him fatal injuries. On the basis of the evidence on record and on the authority Page 51 of 32

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of the above decisions, we are satisfied that the ingredients of the Page 52 of 32

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doctrine of common intention were the satisfied. The appellants acted in concert with one another in pursuing an unlawful purpose by assaulting the deceased of which death was a probable consequence. 59. On our own analysis of the evidence, we are satisfied that the prosecution proved beyond all reasonable doubt that the appellants had formed a common intention to either kill the deceased or cause grievous harm to him. We also satisfied that the trial court carefully appraised the evidence and properly concluded that the appellants were responsible for the deceased’s death. 60. The next, and key issue in this appeal, is whether the prosecution proved malice aforethought as required by law. As this Court stated in Nzuki v Republic, (supra), before an act can become murder, it must have any one of the following; the intention to cause death; the intention to cause grievous bodily harm; where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse with the intention to expose a potential victim to that risk as the result of those acts. The Court however Page 53 of 32

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emphasized as follows: Page 54 of 32

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61. In “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 a crime of murder.” holding that the prosecution proved malice aforethought, the trial court took into account that the appellants were armed with pangas and clubs and that they mercilessly attacked the deceased using those weapons. The trial took the view that the weapons used, the injuries the deceased sustained and by aiming at the neck, the head and the spine, the appellants’ aim was to kill the deceased which was proof of malice aforethought. 62. The evidence on record pointed to the fact that there was suspicion that the deceased had bewitched the appellants’ relative (Jared Adek Ng’ang’a) who was being buried on the same day. The attack on the appellant therefore arose out of the belief that it was the deceased who had bewitched and killed Jared Adek Ng’ang’a. The attack on the deceased was thus, spontaneous and there was no evidence that it had been premeditated or planned. 63. In Nzuki v Republic (supra) this Court stated that although Page 55 of 32

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the prosecution is not obliged to prove motive, but just as its Page 56 of 32

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presence can greatly strengthen the case for the prosecution, its absence can equally weaken it. In Katana Karisa & 4 Others v Republic [2008] KECA 64. 270(KLR), this Court reduced the charge of murder to manslaughter because, although the defence of provocation by witchcraft had not been raised, there was overwhelming evidence that the appellant he had lost his 10 years old son in circumstances where he strongly believed the death had been caused by the deceased through witchcraft. 65. By parity of reasoning and applying the circumstances in the Katan Karisa case to the instant appeal, there was evidence from PW1, PW2, PW4 and some of the appellants’ witnesses, that the deceased was suspected to have killed Adek Ng’ang’a through witchcraft so that the attack leading to the deceased’s death was not a cold murder but was based on the appellants’ suspicion that the deceased had caused the death of their relative through witchcraft, thereby diminishing evidence of motive. 66.The offence of murder that the appellants were charged with, tried and convicted, Page 57 of 32 was committed in an

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environment of emotion and fear based on the belief in witchcraft which the community immediate and grave danger Page 58 of 32 considered an

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directly affecting them, thereby causing a temporary loss of self-control. There was no evidence from which the trial court could have concluded that the appellants had any of the intentions in section 206 of the Penal Code when they unlawfully assaulted the deceased and caused injuries that led to his death. The evidence on record, established the offence of manslaughter as opposed to murder. 67. The last issue is on sentence. The appellants contended that the sentences imposed were harsh and excessive and faulted the trial court for not considering their mitigating circumstances. The respondent maintained that the sentences of 15 years’ imprisonment were lawful but lenient considering the brutal manner in which the deceased was attacked. 68. The appellants were sentenced to 15 years each upon being convicted for murder. We have however found that the prosecution evidence established the offence of manslaughter and not murder, for which the law prescribes life sentence. We are satisfied that the sentences of 15 years imprisonment are lawful, fair and proportionate in the circumstances of this appeal. Page 59 of 32

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69. Ultimately, this appeal partially succeeds. The conviction of the appellants for the offence of murder is quashed and in place therefor, the appellants are hereby convicted for the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. The appeal against sentence is dismissed. Dated and Delivered at Kisumu this 25 th day of September, 2026. ASIKE-MAKHANDIA …………………………. . JUDGE OF APPEAL E.C. MWITA …………………………… JUDGE OF APPEAL B. ONGAYA …………………………. . JUDGE OF APPEAL I certify that this is a true copy of original. DEPUTY REGISTRAR Page 60 of 32

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