Joseph Mwita Charles alias Karege Mdogo v Republic

pronounce justice for the victim, his family, relatives, neighbours and the perpetrator. Page 2 of 20

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[2] The appellant, Joseph Mwita Charles alias Karege Mdogo, faced an information charging him with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the information were that on the 4th of February 2017, at Nguruna Location of Kuria East Sub-County within Migori County, jointly with another not before court, unlawfully caused the death of Stephen Mondu Nyaikobe “the deceased”. The appellant denied the information, and a full trial thereafter ensued. [3] The Prosecution lined up a total of six witnesses in a bid to prove its case against the appellant. PW1 Marwa Nyaikobe, was the elder brother of the deceased, PW2 was a nephew of the deceased and a son of PW1, PW3 was the sister-in-law of the deceased and wife of PW1, PW 4 was IP Capis Otieno the DCIO for Kuria East District. PW5 was Dr. Benard Otieno who tendered in evidence the post mortem report on the deceased whereas PW6 PC Joshua Adenya was the investigating officer. In a nutshell, the prosecution case as seen through PW1, to PW3 who witnessed the events as they unfolded, was that, on the material day, PW1, had hosted a ceremony in honour of his two children who had successfully undertaken initiation and rite of passage. He had invited several people for the occasion including Gasiali and Joseph, the children of the appellant, who was a Page 3 of 20

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neighbour. However, as soon as they had settled down, one, Amos a brother of the appellant came calling and attempted to forcefully take away from the ceremony the said children. The deceased, a younger brother of the appellant however, successfully intervened and persuaded Amos to leave the children to celebrate with their friends and he would ensure they were returned home once the celebrations were over. [4] However, at about 10 p.m. with the two children still present, Amos and the appellant came to the house of the PW1 and the appellant demanded to know from the deceased whether he was the one who had earlier restrained Amos from taking away his children. When he answered in the affirmative, they immediately set upon him with Amos stabbing him on the shoulder, whereas the appellant stabbed him on the chest. The deceased screamed and attracted the attention of PW1 together with PW3, who were in the kitchen. They rushed to the sitting room only to find the deceased bleeding profusely on the floor as the appellant and Amos stood over him holding blood-stained knives. They raised alarm and the appellant and Amos escaped. [5] The incident was then reported to Ntimaru Police Station and police officers therefrom visited the scene the following day, took photographs of Page 4 of 20

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the body and evacuated it to Kegonga Sub-County Hospital for preservation and postmortem by Dr. Andrew Magige. [6] PW4 received the report from the Deputy OCS, Ntimaru Police Station regarding the incident and assigned PW6 to investigate it. He later received information from the in-charge A.P. Camp at Kegonga that the appellant had surrendered himself at their offices and personally went and re- arrested him and brought him to Ntimaru Police Station and handed him over for interrogation. [7] PW5 produced the post-mortem report prepared by Dr. Andrew Magige. The latter had at the time of the hearing been transferred to Rongo Hospital. The report confirmed that the deceased died of cardiopulmonary arrest due to a stab wound on the chest which ruptured the lung and was occasioned by a sharp object. [8] PW6 visited the scene, photographed the body, and collected it for post-mortem examination. He recorded statements from witnesses, whereupon he preferred the information of murder against the appellant, though the other suspect, Amos still remained at large. During the plenary hearing of the case, PW6 produced photographs taken at the scene and the mental assessment report of the appellant. Page 5 of 20

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[9] Put on his defence, the appellant elected to give unsworn statement. He raised an alibi, alleging that he had been away in Sirare town on the material day and only came home on 11 th February, 2017, to find his houses razed to the ground by fire started accidently by his children whilst studying using a lamp. That he reported the incident to the local Chief, who escorted him to Ntimaru Police Station where he was instead arrested and charged with an information, he knew nothing about. [10] The trial court carefully weighed the evidence presented by the respective parties and in addressing the essential ingredients of murder, stated that the fact and cause of death, were not in dispute. That PW1 to PW3 all confirmed that the deceased died on the spot and in their presence after being stabbed by the appellant and Amos respectively. PW5 produced the post-mortem report in which it was opined that the cause of death was cardiopulmonary arrest caused by stab wounds to the chest which ruptured the lung, occasioned by a sharp object. This evidence was unchallenged and the trial court accepted it as conclusive proof of death of the deceased and its cause and we agree. [11] Turning to whether the death was the direct consequence of an unlawful act of commission or omission attributable to the appellant; it noted that the incident occurred inside PW1’s well -lit sitting room. Page 6 of 20

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That Page 7 of 20

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PW2 gave a detailed and compelling narration of how Amos accompanied with the appellant came to the house, confronted the deceased, slapped and kicked him before stabbing him in the shoulder and chest respectively. That this account was corroborated by PW1 and PW3, who both rushed into the sitting room from the kitchen upon hearing deceased’s screams and found the appellant and Amos standing over the deceased, each holding blood-stained knives. The court emphasized that the identification of the appellant was by recognition in a well-lit scene, as he was a neighbour well known to the witnesses, and therefore there was no possibility of mistaken identity. We are unable to disagree with the proposition. [12] On malice aforethought, the trial court referred to section 206 of the Penal Code and relevant Court of Appeal authorities, including Nzuki v R [1993] KECA 83 (KLR) and Joseph Kimani Njau v R [ 2014] KECA 229 (KLR), and observed that both the appellant and Amos returned to the house of PW1 armed with knives, several hours after the earlier confrontation, and sat waiting for the deceased. When the deceased appeared, the appellant and Amos immediately attacked him and stabbed him in vulnerable areas of the body namely, the chest and the shoulder. The trial court reasoned that these were critical parts of the human body, Page 8 of 20

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and any deliberate stabbing in such areas demonstrated an intention to kill or at the very least cause grievous harm. The court further noted that the appellant and Amos acted in concert, having discussed the deceased’s intervention earlier, and their coordinated assault revealed a revenge mission executed with precision, hence malice aforethought was proved. [13] The defence offered by the appellant, was found to be inconsistent with the strong prosecution evidence. PW4 and PW6 testified that the appellant surrendered to the local Chief who handed him over to the police, a fact which contradicted his version of events. In conclusion, the trial court found that all three ingredients of murder had been proved. It therefore convicted the appellant on the information and sentenced him to thirty years’ imprisonment. [14] The appellant dissatisfied with the judgment of the trial Court, acting through Ms. Olga A. Mwalo, learned counsel filed the instant appeal on the grounds that the trial court erred in law and fact by convicting the appellant: on insufficient evidence; when the prosecution had failed to prove the information against him beyond reasonable doubt; when it failed to properly evaluate the defence and consider the contradictory and inconsistent prosecution evidence; and that the sentence imposed was harsh and excessive in the circumstances. Page 9 of 20

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[15] During the plenary hearing of the appeal the appellant appeared in person on our virtual platform from Kibos Maximum Prison, whereas his learned pro bono counsel was absent, while Ms. Busienei, learned prosecution counsel appeared for the respondent. It emerged that although the learned counsel for the appellant was absent, he had nonetheless been served by court with the hearing notice for the day and in response thereto had filed and served on the respondent written submissions on behalf of the appellant. Similarly, the appellant had also in person filed his own written submissions. Though the court suggested to him that in view of the nature and gravity of the appeal he required the assistance or presence of counsel and that the court was willing to adjourn the hearing of the appeal to another date and compel the attendance of counsel, the appellant could not hear of it and insisted that the appeal proceeds on the basis of the two sets of written of submissions on record. Ms. Busienei was reluctant to venture that route but for the insistence of the appellant, she backed down and the Court opted to proceed on that basis. [16] In general, the appellant’s submissions were that the trial court erred in law and fact in convicting him on the basis of insufficient evidence, contending that the prosecution failed to discharge its burden of proof beyond reasonable doubt as required. He invoked the Page 10 of 20

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principle in Page 11 of 20

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Woolmington v. DPP [1935] AC 462, which reiterated that the burden of proof rests entirely with the prosecution in criminal cases, and argued that his direct involvement in the death of the deceased was not conclusively established. The information alleged that he had acted “jointly with another not before court,” yet the prosecution failed to prove which party inflicted the fatal stab, thereby leaving ambiguity that undermined the standard of proof and which ought to have been resolved in his favour. [17] The appellant further submitted that the trial court failed to properly evaluate his alibi defence. He argued that while an unsworn statement may carry less weight than sworn testimony, it must nonetheless be considered as part of the totality of evidence, and the court’s failure to adequately address his defence amounted to an error of law. [18] On identification, the appellant contended that the trial court relied on evidence that was contradictory and inconsistent. He emphasized that though PW2 and PW3 mentioned his presence at the scene with Amos, the circumstances of the incident, occurring at night around 10:00 p.m., amidst commotion and a large crowd present necessitated caution by the trial court before concluding that the identification evidence was safe and reliable. He cited Wamunga v. Republic Page 12 of 20

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[1989] KLR 424, which underscored the need for careful scrutiny of evidence of identification at Page 13 of 20

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night and in difficult circumstances, and R v. Turnbull [1977] QB 224, as well which set out the perimeters for consideration in a case of identification in difficult circumstances. He argued that the trial court did not rigorously examine the factors vis a vis the possibility of mistaken identity, particularly given reliance on solar-powered bulbs at night. [19] Regarding sentence, the appellant submitted that the sentence imposed was manifestly harsh and excessive. He relied on the Supreme Court decision in Francis Muruatetu & another v. Republic [2017] eKLR, which declared the mandatory nature of death penalty in murder cases unconstitutional and vested sentencing courts with discretion to impose appropriate sentences guided by mitigating and aggravating factors. He argued that as a youthful first offender, aged about 20 years at the time of the offence, he ought to have been treated with leniency and afforded an opportunity for rehabilitation. The trial court’s failure to appreciate these mitigating circumstances, he contended, resulted in a disproportionate sentence that negated the rehabilitative objective. In conclusion, the appellant urged the Court to allow the appeal, quash the conviction, set aside the sentence, and set him free, or grant him any other relief deemed just and fit in the circumstances. Page 14 of 20

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[20] Ms. Busienei in opposing the appeal, submitted that the appellant was properly charged, convicted and sentenced. She emphasized the role of the first appellate court being its obligation to weigh the evidence afresh and reach its independent conclusions, while making allowance for not having seen or heard the witnesses as they testified. [21] On the elements of the offence issue, counsel submitted that the information was proved beyond reasonable doubt. The appellant was placed at the scene of crime and positively identified by PW1, PW2 and PW3, all of whom knew him very well as a neighbour. They all saw the appellant and Amos at the scene holding blood-stained knives, with the deceased on the ground bleeding profusely from stab wounds on the shoulder and chest. Counsel argued that this evidence was consistent and credible. On malice aforethought, counsel relying on section 206 of the Penal Code, submitted that the stab wounds inflicted on the chest and shoulder neck were aimed at vulnerable organs of the body thereby, demonstrating an intention to kill or at the very least cause grievous harm to the deceased. PW5’s medical evidence confirmed that the stab wounds caused the death of the deceased, thereby proving malice aforethought. [22] On sentence, counsel submitted that the imprisonment term imposed was lawful, justified, and proportionate given the brutality Page 15 of 20

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and Page 16 of 20

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premeditated nature of the offence. Citing Bernard Kimani v. Republic [2002] eKLR, counsel submitted that an appellate court will not ordinarily interfere with a sentence imposed by the trial court unless the trial court acted on a wrong principle, overlooked a material factor, or imposed manifestly harsh and excessive sentence. While conceding partially that the appellant’s time spent in custody ought to be factored into the sentence under section 333(2) of the Criminal Procedure Code, counsel maintained that the conviction and sentence were otherwise sound and appropriate in the circumstances. In conclusion, counsel urged this Court to find that the appellant was rightfully convicted and that the sentence imposed was proper and dismiss the appeal in its entirety. [23] As correctly observed by Ms. Busienei, this being a first appeal, the role of this Court is confined to weighing the evidence afresh so as to reach its independent conclusions, while making allowance for the handicap that it did not see or hear the witnesses as they testified and therefore pay homage to the findings of the trial court on matters fact and demeanor of witnesses. See Okeno v Republic [1972] EA 32. [24] Having carefully considered the record, respective written submissions and the law, three concise issues arise for determination being whether: the prosecution discharged its burden of proof bearing Page 17 of 20

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in mind the alleged Page 18 of 20

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contradictions and inconsistencies in the prosecution case; trial court properly evaluated the defence; and whether the sentence imposed was harsh and excessive in the circumstances. [25] As to the first issue, the essence of murder pursuant to section 203 of the Penal Code, entails proof of the fact and cause of death, that the death was the direct consequence of an unlawful act of omission or commission by the accused, and that such act was committed with malice aforethought as set out in section 206 of the Penal Code. In this appeal the fact and cause of death were not really disputed. PW1, PW2 and PW3, all of whom knew the appellant very well as a neighbour and saw him together with Amos respectively at the scene of crime. PW1 actually saw both slap and stab the deceased in the chest as well as the shoulder. When the PW1 and PW3 rushed to the scene from the kitchen they found appellant and Amos still armed with blood-stained knives standing over the body of the deceased who lay on the ground bleeding from stab wounds. The post-mortem confirmed a stab wound to the chest that ruptured the lung. This evidence leads to the irresistible conclusion that the death of the deceased and the cause thereof was firmly proved. [26] Although the incident occurred at night at around 10:00 p.m. the trial court considered the testimony of PW1, PW2 and PW3 which Page 19 of 20

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placed the Page 20 of 20

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appellant at the scene. Guided by the caution in Wamunga v Republic [1989] KLR 424 on identification at night, the trial court evaluated the lighting conditions, noting the presence of solar-powered bulbs, and was satisfied that identification of the appellant by recognition was reliable. In Anjononi v Republic [1993] KECA 83 (KLR), this Court famously stated that recognizing someone you already know is far more reliable than identifying a complete stranger, providing a foundational precedent still used in East African criminal jurisprudence regarding night-time identification and or recognition. [27] The difficulty however, lies in whether malice aforethought was proved as required. This Court has consistently emphasized that malice aforethought is not to be presumed but must be established by evidence. In Nzuki v Republic (supra), the Court held that malice aforethought is a subjective test requiring proof of intention to kill or cause grievous harm, amongst other indicators and that mere participation in a fight or assault does not suffice. The court stated: “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: 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 Page 21 of 20

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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 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. 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. (see Hyman – vDirector of Public Prosecutions, [1975] AC 55”. [28] Similarly, In Bonaya Tutu Ipu & another v Republic [2015] eKLR, this Court reiterated that because direct evidence of intent is rare, malice aforethought must be inferred from the surrounding circumstances, such as the weapon used, the nature of the injuries, and the part of the body targeted, rather than relying on statutory definitions in isolation. This explanation was best reiterated in Isaak Kimanthi Kanuachobi – vs- Republic - (Nyeri) Criminal Appeal No. 96 of 2007 (ur), where this Court expressed itself on the issue thus: “There is express, implied and constructive malice. Express malice is proved when it is shown that an accused person intended to kill while implied malice is established when it is shown that he intended to cause grievous bodily harm. When it is proved that an accused person killed in furtherance of a felony (for example, rape, or robbery) or when resisting or preventing lawful arrest, even though there was no Page 22 of 20

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intention to kill or cause grievous bodily harm, he is said to have had constructive malice aforethought (See Republic –v –Stephen Kiprotich Leting & Page 23 of 20

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3 Others (2009) e KLR HCCC No. 34 of 2008). In the circumstances of this case, where there was a fight involving the appellant and others in a place of worship leading to another fight where the appellant stabbed the deceased with fatal consequences, we do not think there was malice aforethought at all. The appellant should not have been convicted of murder but should have been convicted of manslaughter. (See Juma Onyango Ibrahim – vs- R, Criminal Appeal No. 312 of 2009 Court of Appeal (Kisumu,).” [29] The record shows that there had been an earlier altercation between the deceased and Amos forcing Amos to leave behind the appellant’s children in the house of PW1. By 10pm those children had not left contrary to the assurances made to Amos by the deceased. This may have incensed the appellant and Amos who came calling to collect the children that led to the unfortunate consequences. PW1 to PW3 all testified that there existed no grudge or bad blood between the deceased and the appellant or their families. Neither was motive ever fathomed that could have led to the fatal incident. Not that motive is really necessary murder cases, but goes a long way to put the murder in perspective. To our mind therefore, this was an altercation or fracas that rapidly and unfortunately went south resulting in the unfortunate death of the deceased. Accordingly, whereas the unlawful act was established, malice aforethought was not conclusively proved. Guided by the principles in the cited authorities, we are satisfied that the Page 24 of 20

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prosecution failed to establish sufficiently the element of manslaughter Page 25 of 20

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necessary for murder. The conviction for murder cannot therefore be sustained. The appropriate finding is that the appellant’s conduct amounted to manslaughter, being unintentionally causing the death of the deceased without proof of malice aforethought. [30] Regarding the alibi, although this was presented in an unsworn statement, and thus late in the day, it is trite that even unsworn testimony must be considered as part of the totality of evidence. In Kiarie v Republic [1984] KLR 739, this Court held that an alibi defence, once raised, places a duty on the prosecution to disprove it beyond reasonable doubt. Similarly, in Wang’ombe v Republic [1980] KLR 149, the Court emphasized that a trial court must weigh the alibi against the prosecution evidence and give reasons for rejecting it. [31] In the present appeal the trial court acknowledged the appellant’s alibi much as it was raised late in the day, but carefully weighed it against the prosecution’s evidence. The trial court took the view that the prosecution evidence sufficiently displaced the appellant’s alibi, and we agree. More so considering, that the appellant after the incident, voluntarily surrendered himself to the local Chief who in turn handed him over to police officers from Ntimaru Police Station. He could not therefore have been at Sirare town on the material time as he claimed. Page 26 of 20

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[32] The trial court also considered the alleged contradictions and, consistent with the principle in Muiruri & another v Republic [2002] 2 KLR 274, resolved them by finding that the prosecution evidence as a whole was credible and pointed irresistibly to the appellant’s participation in the unlawful act. The ambiguity as to who inflicted the fatal wound was weighed, but the court rightly concluded that the appellant was properly identified and his role established. In any case this is a non-issue considering the provisions of section 12 of the Penal Code as both the appellant and Amos acted in concert and had formed common intention to prosecute the offence. Accordingly, the alleged contradictions and inconsistencies were minor and of no consequence in our view. [33] On sentence we reiterate that sentencing in murder cases is guided by section 204 of the Penal Code, which prescribes the death penalty as the ultimate sentence. However, following the Supreme Court’s decision in Francis Karioko Muruatetu & another v Republic (supra), the mandatory nature of that sentence was declared unconstitutional, vesting discretion in trial courts to impose appropriate sentences in murder cases after considering mitigating and aggravating factors. This Court has consistently emphasized that sentencing is a matter of judicial discretion, and an appellate court will Page 27 of 20

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only interfere with the sentence imposed where Page 28 of 20

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the trial court acted on a wrong principle, overlooked a material factor, or imposed a sentence that was manifestly harsh or excessive. These principles were restated in Bernard Kimani Gacheru v Republic [2002] eKLR. [34] In the present appeal, the trial court imposed a custodial sentence of thirty years. The appellant was a first offender, aged about 20 years at the time of the offence, with no previous records. These are significant mitigating factors which, ought to have been given some weight. The brutality of the offence was an aggravating factor, but the absence of clear proof of malice aforethought, as already discussed, weakens the justification for the sentence imposed. In Peter Odhiambo Abonyo v Republic [2025] KECA 608 (KLR), the Court upheld a thirty- five-year sentence where the evidence clearly demonstrated premeditation and deliberate targeting of the deceased. By contrast, in the instant case, the circumstances were chaotic, the motive unclear. [35] We are in the circumstances satisfied that while a custodial sentence was warranted, the term imposed was manifestly excessive given the appellant’s youthness, first-offender status, and the absence of proven malice aforethought. Given the foregoing, we are persuaded that the Page 29 of 20

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sentence should be interfered with, and substituted with a lesser term proportionate to manslaughter. [36] Accordingly, the appeal succeeds in part. The conviction for murder is quashed and substituted with a conviction for manslaughter contrary to section 202 as read with section 204 of the Penal Code. The sentence of thirty years’ imprisonment is set aside and substituted with a term of twenty (20) years’ imprisonment. In imposing this sentence, we have taken into account the fact that the appellant remained in remand custody from the date of his arrest and throughout the processing of his case pursuant to section 333(2) of the Criminal Procedure Code. 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 Page 30 of 20

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DEPUTY REGISTRAR Page 31 of 20

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