Kawala v Republic

3. Edwin Ouma Milewa (PW2), a boda-boda operator, testied that on 14th March, 2018 at about 9.00 pm, one Mama Maureen called him from home seeking help following the appellant’s assault of the deceased. She wanted PW2 to take the deceased to the hospital. According to PW2, Mama Maureen was the appellant’s wife. PW2 proceeded to the appellant’s home and found the deceased lying on the ground, bleeding from the back of his head, and crying out that the appellant was killing him. When PW2 asked the appellant’s son, Antony, to help take the injured deceased to hospital, the appellant prevented his son from doing so. PW2 managed to put the deceased on his motorcycle and sped to the hospital. It was his testimony that the deceased kept telling him that the appellant was killing him for having refused to bail him out after the police arrested him (appellant). PW2 took the deceased rst to St. Paul’s Health Center from where he was referred to Homa Bay District Hospital, where the deceased was nally admitted. Mama Maureen paid him the fare for taking the deceased to hospital, and arrived at the hospital with others before PW2 had left the hospital. PW2 also talked to the mother of the deceased on phone before leaving the hospital. PW2 further testied that when he visited the deceased on Friday, the deceased’s sisters were present and the deceased complained of pains in the abdomen. He left the hospital at about noon and was on his way back to help transfer the deceased to another hospital when he learned that the deceased had passed away. 4. No. 92922 CPL Jackline Onyango (PW3) stated that a machete and a log were used in the murder, though she did not see them. She conrmed that the scene of the crime was the appellant’s homestead, but that there was no photograph or sketch of the same. 5. When put to his defence, the appellant gave sworn testimony that the deceased was his nephew. He denied killing the deceased or knowing how the deceased died. He noted that he was arrested on 17th March, 2018 at Homa Bay, where he had gone to purchase some drugs. 6. On 1st March, 2022, the High Court (Kiarie, J.) evaluated the evidence and set out the issues for determination as whether the appellant was present where the deceased was killed, whether he was involved in the death of the deceased, and whether the oence of murder had been proved beyond reasonable doubt against the appellant. The Court observed that there was sucient evidence on record that the appellant inicted the injuries on the deceased, which caused his death. The grudge the appellant bore with the deceased was the basis of the fatal attack and the appellant therefore had malice aforethought. Accordingly, the Court held that the oence of murder had been proved beyond any reasonable doubt and found the appellant guilty. The appellant was consequently convicted and sentenced to death. 7. Aggrieved and dissatised with the decision, the appellant preferred an appeal to this Court against the conviction and sentence. He prays that the appeal be allowed, the conviction quashed, sentence be set aside and in the alternative, this Court imposes a lenient sentence. The memorandum of appeal dated 13th August, 2025 sets out three grounds of appeal as follows: 1. That the learned Judge erred in law and fact by convicting the appellant despite inconsistencies and inadequacies in the identication evidence, thereby failing to establish the appellant’s culpability beyond reasonable doubt. 2. That the learned Judge erred in law and fact by inferring malice aforethought without sucient and conclusive evidence to support such a nding, leading to an erroneous conviction for murder. 3. That the learned Judge erred in law by imposing a sentence of death, failing to exercise the judicial discretion available. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1870/eng@2026-09-25 2

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8. When this appeal came up for hearing before us Ms. Lumallas, learned counsel appeared for the appellant and who was also virtually present from prison. Ms. Oduor learned prosecution counsel appeared for the respondent. Both counsel opted to canvass the appeal by relying on their written submissions. 9. Ms. Lumallas urged this Court to consider that no independent eyewitness was called in this case. That the appellant’s disability should have made the prosecution to look into the injuries and how they were inicted. 10. Further, counsel submitted that the burden of proof in a criminal case rests squarely on the prosecution and never shifts to the accused throughout the trial. That the prosecution must prove the guilt of the accused beyond a reasonable doubt, and any small doubt must be resolved in favour of the accused. That under Section 206 of the Penal Code, malice aforethought is established if the accused intends death or grievous harm, foresaw the probability of death or intended to commit a felony. Counsel cited Titus Ngamau Musila Katitu v Republic [2020] eKLR in which this Court stressed that inference of intent must be from objective, analyzed evidence and not conjecture. Further in Republic v Mwebi (Criminal Case 48 of 2018) [2024] KEHC 10353 (KLR), the court armed that malice aforethought could be well presumed if repeated blows inicted the injury, and not one single blow causing perforation and internal bleeding, which only became apparent at the death of the deceased. Ms. Lumallas asserted that there was a clear misdirection of facts in this case on the matter of malice aforethought, as the evidence showed a single blow leading to fatal injury. That the postmortem report, though fatal, does not disclose intention. She argued that malice aforethought cannot be assumed where credible evidence of premeditation or intent to kill is absent. 11. On whether the trial court properly evaluated the alibi and other exculpatory evidence, counsel submitted that the record does not elaborate on the specic evidence that conclusively “displaced” the appellant’s claim that he was home and was later arrested for unrelated reasons. That the trial court’s blanket dismissal of the appellant’s alibi without a reasoned explanation addressing supporting evidence constitutes a misappreciation of his defence. Counsel argued that for an alibi to be eectively rebutted, the prosecution must present evidence that directly and unequivocally disproves the accused person’s whereabouts or presence elsewhere at the material time. Therefore, she urged this Court to determine if the alibi was indeed disproved beyond reasonable doubt, or if it was outweighed by other evidence without a direct rebuttal. 12. Counsel further submitted that the trial Court erred in its nding of guilt regarding the conclusive establishment of malice aforethought and the adequate rebuttal of the appellant’s alibi defence. She cited FMM v Republic [2023] KECA 754 (KLR) in which this Court urged legislative reform of the death penalty framework and criticized the automatic nature of the mandatory sentence, as leading to inequality and inexibility. Counsel argued that the trial court’s admission of the mitigating factors and still imposing death suggests improper sentencing. 13. Opposing the appeal, Ms. Oduor submitted that the prosecution proved beyond reasonable doubt that the appellant was guilty as charged, as the witnesses linked him to the oence and placed him at the scene of crime. That whereas no witness saw the appellant inicting injuries upon the deceased, the strong circumstantial evidence of PW1 and PW2 on the dying declaration pinpointed the appellant and not any other person. That in Ahamad Abolfathi Mohammed & another v Republic [2018] KECA 743 (KLR), this Court armed that circumstantial evidence can be as strong as direct evidence, approving the tests for when a case rests entirely on circumstantial evidence set out in Abanga alias Onyango vs. Republic, Cr. App No. 32 of 1990 thus: (i) the circumstances from which guilt is inferred must be rmly established; (ii) the circumstances must clearly point to the accused and to no other https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1870/eng@2026-09-25 3

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perpetrator; and (iii) the circumstances taken cumulatively must form a complete chain, leaving no space for the conclusion that the crime was committed by the accused and no other culprit. The Court added that there must be no other co-existing circumstances which would weaken or destroy the inference of guilt. 14. Referring to the dying declaration, counsel for the respondent submitted that Section 33(a) of the Evidence Act provides that a statement made by a deceased person is admissible if it relates to the cause of his death or the circumstances leading to it. That in this case, PW1 was present when the deceased stated that the appellant was the one who injured him, and PW2 also corroborated the dying declaration in his testimony. Ms. Oduor further submitted that the appellant’s omission and refusal to assist the deceased is inconsistent with his innocence, and that he clearly wanted the deceased to die. That the appellant’s conduct exhibited malice on his part. Counsel argued that the doctrine of ‘last person seen’ squarely links the appellant to the death of the deceased and corroborates the dying declaration in the case. 15. It was further submitted for the respondent that the appellant failed to call an independent witness, including any of his children, to corroborate his alibi. That his alibi defence could not, as such, displace the evidence of the prosecution witnesses linking him to the crime and placing him at the scene. Counsel urged that the alibi was an afterthought because the appellant did not raise it at the earliest opportunity to enable the prosecution and investigators test its veracity, as armed by this Court in Karanja v Republic [1983] KECA 35 KLR. 16. Counsel for the respondent conceded to the appellant’s death sentence being substituted with a term sentence of 40 years imprisonment, to be commensurate with the magnitude of the oence he committed. She cited the Supreme Court’s declaration of the unconstitutionality of the mandatory death sentence in the case of Francis Karioko & another v Republic; (2017) eKLR (Muruatetu 1). 17. This is a rst appeal. Our primary role is to re-evaluate, re- assess, and re-analyze the entire evidence on record to arrive at our own independent conclusions while acknowledging that the trial court has had the advantage of hearing and seeing the witnesses, as was held in Okeno v Republic (1972) EA 32 thus: “ An appellant on a rst 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 rst appellate court must itself weigh conicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a rst appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's ndings and conclusions; it must make its own ndings and draw its own conclusions. Only then can it decide whether the magistrate's ndings 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.” 18. The issues for determination in this appeal are whether the prosecution established the ingredients of murder beyond a reasonable doubt, to sustain the conviction as was arrived at by the trial Court; and, if in the armative, whether the death sentence imposed on the appellant should be substituted with a term sentence of 40 years. 19. To sustain a conviction on a charge of murder under Section 203 of the Penal Code, the prosecution is required to prove beyond reasonable doubt the following ingredients of the oence: the fact and the cause of death of the deceased; the fact that the death was caused by unlawful act of omission or commission on the part of the accused person and that, the said unlawful act of omission or commission was committed with malice aforethought. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1870/eng@2026-09-25 4

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20. We have re-evaluated the testimonies and material on record. About the fact and the cause of death of the deceased, PW1 testied that the medical personnel did the best but did not save the deceased. PW2 testied that on his way to the Homa Bay District Hospital, he learned that the deceased had passed away. The appellant’s counsel consented to production of the postmortem report by the investigating ocer PW3. The report showed that the cause of the death was head injury. By that evidence we nd that the fact and cause of death were thereby established beyond reasonable doubt. 21. PW1 was present at the hospital bed when the deceased declared that the appellant had injured him. PW2 corroborated the evidence when he arrived at the appellant’s home and PW2 found the deceased lying down while bleeding from the back of the head. PW2 heard the deceased tell PW1 that the appellant had injured him. PW1 and PW2 therefore heard the deceased’s dying declaration which is admissible as an exception to hearsay rule under Section 33(a) of the Evidence Act, which allows statements made by a deceased person regarding the cause or circumstances of their death. Section 33(a) of the Evidence Act makes oral or written statements by a deceased person admissible if the cause of death is in question, regardless of whether they expected to die at the time. The section provides as follows: “ 33. Statement by deceased person, etc., when. Statements, written or oral or electronically recorded, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured, without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases — (a) relating to cause of death when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question;” 22. We are therefore satised that the trial Court did not err in admitting the evidence of the deceased’s dying declaration as per the testimony by PW1 and PW2 who also saw the deceased’s head with many stitches and subsequently the postmortem report corroborated the same by stating the cause of death as head injury. 23. In particular, the evidence of the dying declaration satised the principles in Choge & 3 others v Republic [1984] KECA 4 (KLR). In that case the Court of Appeal established vital principles for handling dying declarations by clarifying that while such statements are admissible even without an expectation of imminent death, courts must exercise extreme caution and seek corroboration before convicting. It was held as follows: “ The general principle on which a dying declaration is admitted in evidence is that it is a declaration made in extremity when the maker is at a point of death and the mind is induced by the most powerful considerations to tell the truth. In Kenya, however the admissibility of https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1870/eng@2026-09-25 5

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dying declaration need not depend upon the declarant being, at the time of making it, in a hopeless expectation of eminent death. There need not be corroboration in order for a dying declaration to support a conviction but the exercise of caution is necessary in reception into evidence of such declaration as it is generally unsafe to base a conviction solely on the dying declaration of a deceased person.” 24. The principles we have found satised in the present appeal are therefore as follows: a dying declaration is accepted as an exception to the hearsay rule because it is made in extremity when the maker faces death, silencing falsehoods and inducing the mind to tell the truth; unlike strict common law or older English rules, admissibility in Kenya under Section 33(a) of the Evidence Act does not require the declarant to have been in a hopeless expectation of imminent death at the moment the statement was made; there is no absolute rule of law stating that a dying declaration must be corroborated to sustain a conviction; and, courts must approach the evidence of a dying declaration with high circumspection and great caution, because, it is generally recognized as unsafe to base a criminal conviction solely on an uncorroborated dying declaration unless the surrounding circumstances provide full safety and assurance. We have found that the deceased made the declaration at the moment of imminent death which must have silenced the possibility not to tell the truth; the dying declaration made by the deceased to PW1 and PW2 was corroborated by the postmortem report on the cause of the deceased’s death as head injury; and, in all circumstances and evidence on record, it was safe to convict the appellant based on the evidence of the dying declaration. 25. We are also satised that the evidence on record shows that the deceased’s death was caused by unlawful act of the appellant. The appellant testied that the deceased was his nephew and that he did not kill him. He further testied that on 16th March, 2018 he did not see the deceased, he was at home alone because his children were asleep and his wife had gone to Mbita but did not come back, and, he did not know how the deceased died. However, the deceased’s dying declaration and PW2’s testimony placed the appellant at the scene of the incident of the attack resulting in the murder. The incident took place at the appellant’s home on 14th March, 2018. PW2’s testimony was vivid and elaborate that when she arrived at the scene after she received a telephone call from the appellant’s wife known as Mama Maurine, she found the deceased lying down on the ground bleeding from the back of his head and crying that the appellant was killing him. Further, PW2 asked the appellant’s son known as Antony to help PW2 take the deceased to the hospital but Antony was prevented by the appellant from assisting PW2. We are therefore satised that the appellant’s alibi defence was an empty denial and the trial Court did not err in holding that in spite of the denial by the appellant that he was not involved in the fatal injury of the deceased, there was sucient evidence on record that the appellant was the one who inicted the injuries to the deceased. We reject the submission made for the appellant that the prosecution evidence failed to displace the appellant’s alibi defense and that the trial Court had a blanket dismissal of the appellant’s alibi without a reasonable basis. 26. Malice aforethought on the part of the appellant was manifested in the nature of injuries targeting the head which is a delicate part of the body, the extent of the injuries which occasioned serious bleeding and subsequently many stiches resulting in the deceased’s death, and, the manner the appellant acted to prevent his son from assisting PW2 to take the deceased to hospital. All that point to the appellant’s intention to cause the death of or to do grievous harm to the deceased, and the appellant had the knowledge that the act of injuring the deceased or omission of granting permission to his son Antony to assist PW2 to take the deceased to hospital would probably cause the death of or grievous harm to the deceased. Accordingly, we are satised that malice aforethought was proved beyond reasonable doubt in terms of section 206 (a) and (b) respectively. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1870/eng@2026-09-25 6

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27. The appellant was sentenced to suer death. The mandatory sentence for murder as prescribed in Section 204 of the Penal Code was declared unconstitutional in Muruatetu 1. Subsequently in Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions) Muruatetu 2. The Supreme Court claried that the Muruatetu 1 precedent and its re-sentencing guidelines apply exclusively to murder cases under Sections 203 and 204 of the Penal Code, explicitly limiting the earlier ruling which declared the mandatory death penalty for murder unconstitutional while leaving the death penalty itself valid as a discretionary maximum punishment. The mandatory death sentence prescribed under Section 204 of the Penal Code is unconstitutional to the extent that it deprives courts of judicial discretion in sentencing. The sentence was held to violate the right to fair trial because it denies an accused person the opportunity to mitigate before a sentence is imposed. The mandatory nature of the sentence having been declared unconstitutional to the extent that now judges should retain the discretion to impose either death or lesser sentence after considering mitigation, the respondent’s counsel in the instant case conceded to setting aside of the death sentence imposed by the trial Court against the appellant.by urging that the same be xed at imprisonment for 40 years as commensurate with the magnitude of the oence the appellant committed. 28. Ms. Lumallas submitted that we should consider the mitigating factors that the appellant was a rst oender; he suered ill- health; and the appellant’s age. We have considered the brutal manner the appellant unlawfully killed the deceased and the manner he prevented his son from assisting PW2 to take the deceased to hospital. We will set aside the death sentence and substitute thereof the sentence of imprisonment for 35 years eective the date of sentence by the trial Court and less the days the appellant spent in custody between arraignment date and the date of sentence per section 333(2) of the Criminal Procedure Code. 29. The upshot is that we conrm the appellant’s conviction for murder contrary to section Section 203 as read with Section 204 of the Penal Code but set aside the sentence to suer death and substitute it with a sentence of imprisonment for 35 years eective the date of the sentence less days spent in custody prior to the trial court’s date of sentence. DATED AND DELIVERED AT KISUMU THIS 25TH 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 the original DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1870/eng@2026-09-25 7

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