Kola & 2 others v Republic

later died upon arrival at the hospital. He was able to identify them as there was adequate lighting at the scene. 3. PW2, Rispa Akutu Wawire, the mother of the deceased, testied that upon learning that her son had been assaulted, she alerted PW1 and the area Assistant Chief before proceeding to Sango Market in the company of PW3 and upon arrival, she found the deceased lying on the ground, naked and seriously injured. She stated that the 1st appellant was holding a stick and a stone, the 2nd appellant was holding two hens, while Edwin Sifuma was also present at the scene. She further testied that she saw the 1st appellant strike the deceased with a stick and heard the 2nd appellant remark that they needed "evidence that the deceased was a thief." 4. PW3, Georey Wawire, the deceased's brother, testied that upon receiving information about the incident, he ferried his mother (PW2) to the scene on his motorcycle. Upon arrival, he found a crowd of about thirty people surrounding the deceased and identied the accused as being among the mob. He stated that he saw the 1st appellant armed with a stick and a stone and witnessed her strike the deceased, who by then had already sustained grievous injuries, including a severed leg. He further observed the 2nd appellant carrying two hens at the scene. PW3 testied that visibility was sucient as the scene was illuminated by ashlights, torches and the headlamp of his motorcycle, enabling him to recognize the appellants. 5. PW4, Georey Weusya Wafula, a neighbour, testied that at about 9.00 p.m. on the material night he heard screams and proceeded to Sango Market where, with the aid of a solar lamp, he found a crowd surrounding the deceased over allegations of chicken theft. He stated that he identied the appellants at the scene. 6. PW5, Caleb Wabwire Sifuma, a mason, co-worker of the deceased and step-brother to the deceased testied that he and the deceased had spent the day renovating the rst appellant’s house. He stated that when the 1st appellant was unable to pay the deceased for his labour, she gave him chicken to take to Carol Kola's house where he was to collect his wages. Later that night, upon hearing screams, he rushed to the scene and found the three appellants assaulting the deceased inside a maize plantation before moving him to Sango Market, where members of the public joined in the assault. He testied that the 1st appellant repeatedly struck the deceased with a Y10 construction metal rod, while the 2nd appellant was carrying the chicken and a piece of wood. 7. PW6, No. 112332 Police Constable Felix Oduor Ojowi, the investigating ocer, testied that he was assigned to investigate the death of the deceased, which had been reported as a case of mob justice; his investigations established that, on the material day, the deceased had been engaged in renovation work at the rst appellant’s home and as she was unable to pay the deceased for the work done, she handed him a hen as payment and directed him to the 2nd appellant's house to collect the balance of his wages. That shortly thereafter the 1st appellant falsely raised an alarm that the deceased had stolen her chicken, thereby prompting members of the public to pursue him; his investigations further revealed that the deceased was stripped naked, frog-marched and severely assaulted by a mob before succumbing to his injuries; that he recorded statements from witnesses who implicated all appellants in the assault, leading to their arrest at the Bungoma Law Courts and subsequent charging them with the oence of murder. 8. PW7, Dr. Edward Kibochi, a Medical Ocer, produced the post- mortem report on behalf of his colleague, Dr. Patrick, who had conducted the examination but was unavailable as he was pursuing further studies in Uganda. He testied that the post- mortem examination established that the deceased sustained severe head injuries accompanied by massive external haemorrhage. In his opinion, the cause of death was severe head injury with massive internal haemorrhage due to trauma. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1927/eng@2026-09-25 2

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9. The 1st appellant gave sworn evidence denying any involvement in the deceased's death. She testied that she raised an alarm after discovering that her chickens had been stolen and subsequently reported the theft to Bakali Police Station, producing an OB extract in support of her report. She maintained that she remained at home after making the report and only later learnt that a suspected thief had been lynched at Sango Market. She denied being present at the scene or participating in the assault. She also refuted Pw5's testimony, denying that she had employed the deceased or Pw5 to renovate her house or that she had paid the deceased with a chicken. 10. The 2nd appellant similarly gave sworn evidence denying any involvement in the oence and raised an alibi. She testied that on the material night she was at her matrimonial home, approximately two kilometres from the 1st appellant's homestead, where she spent the night with her husband. She maintained that she was neither present at the 1st appellant's compound nor at Sango Market and only learnt of the incident the following morning, when her mother informed her that some chicken had been stolen, and that a suspected thief had been lynched by villagers. She further testied that, unlike the other suspects who were arrested shortly after the incident, she was not arrested until one year later despite never eeing or going into hiding. She denied harbouring any grudge against the prosecution witnesses and maintained that they had falsely implicated her. 11. After full trial, the appellants were found guilty of the oence of murder. Upon their conviction, the 1st appellant was sentenced to serve three (3) years imprisonment while the 2nd appellant was sentenced to serve a ve (5) year imprisonment. 12. The appellants aggrieved by this decision lodged their respective appeals to this Court vide the Memorandum dated 3rd October 2022. The appellants challenge their conviction and sentence on the grounds that the prosecution failed to prove malice aforethought and did not establish the case against them beyond reasonable doubt due to material contradictions, gaps and inconsistencies in the evidence. They further contend that the trial court failed to properly consider the circumstances under which the oence was allegedly committed, namely that it occurred at night and that the deceased had been assaulted by a mob on suspicion of chicken theft, thereby leading to an erroneous nding on identication and a failure to adequately consider their defence. The appellants also argue that the evidence did not support the nding that they acted with a common intention to assault and kill the deceased. Consequently, they maintain that the judgment was against the weight of the evidence and urge the Court to allow the appeal, quash the conviction, and set aside the sentence. 13. In support of their appeal, the appellants relied on the written submissions prepared by the rm of Chengasia Murunga and Company Advocates on their behalf, contending that that the prosecution failed to prove malice aforethought or establish that they acted with a common intention to cause the death of the deceased. They contend that the evidence showed the deceased had been assaulted by a mob after allegedly invading the 1st appellant's house at around midnight on suspicion of stealing chickens, and that the 1st appellant's act of reporting the incident to the police was inconsistent with any intention or common design to kill or cause grievous harm. They further fault the trial court for failing to properly analyse the evidence relating to malice aforethought in accordance with the established legal principles. 14. The appellants also challenge the reliability of the evidence on identication, arguing that the incident occurred in total darkness and that the prosecution witnesses gave contradictory accounts regarding the source and adequacy of the lighting. They further submit that the presence of a large mob at the scene rendered positive identication doubtful, particularly as some prosecution witnesses admitted that they did not actually see the appellants assault the deceased. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1927/eng@2026-09-25 3

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15. Lastly, the appellants contend that the prosecution failed to discharge its burden of proving the charge beyond reasonable doubt, owing to material contradictions and gaps in the evidence. They argue that the learned trial Judge ought to have resolved those doubts in their favour. They thus urge this Court to allow the appeal and quash their convictions. 16. No written submissions were led on behalf of the respondent, however during plenary, Ms. Ogweno, learned prosecution Counsel submitted that the prosecution proved the oence of murder beyond reasonable doubt. She argued that the nature of the deceased's injuries established malice aforethought under section 206 of the Penal Code, while the participation of several assailants demonstrated common intention under section 21 of the Penal Code. She further contended that the appellants were positively recognised by witnesses who were well acquainted with them and that the available lighting was sucient for identication. Counsel maintained that the inconsistencies in the prosecution's evidence were minor and did not aect the substance of the case. She therefore urged the Court to dismiss the appeal and uphold both the conviction and sentence. 17. We have carefully considered the record of appeal, the submissions by the parties and the law. The duty of the rst appellate court was stated by this Court in Gabriel Kamau Njoroge v Republic [1987] eKLR as follows: “ As this court has constantly explained, it is the duty of the rst appellate court to remember that the parties to the court are entitled, as well as on the questions of facts as on questions of law, to demand a decision of the court of rst appeal, and that court cannot excuse itself from the task of weighing conicting evidence and drawing its own inferences and conclusions, though it should always bear in mind that it has neither seen or heard the witnesses and to make due allowance in this respect. (see Pandya v R [1957] EA 336, Ruwalla v R [1957] EA 570)”. 18. The only issue for determination before this court is whether the prosecution proved its case beyond reasonable doubt to sustain the appellants’ conviction. 19. To establish the charge of murder, the prosecution was required to prove the death of the deceased and the cause thereof, that the death of the deceased was caused by the appellant, and that the appellant had malice aforethought in committing the act causing the death of the deceased. The death of the deceased was not contested. The post mortem report produced in evidence established that the deceased cause of death was severe head injury with massive internal haemorrhage due to trauma. However, the appellants denied the allegation that they were involved in causing the death of the deceased. 20. PW1–PW5 all testied that they witnessed the appellants assaulting the deceased while armed. However, the prosecution's case appears to have been anchored primarily on the testimony of PW5. This Court nds PW5 to be a central and credible witness whose testimony provides the factual background to the events culminating in the deceased's death. His evidence explains how the deceased came into possession of the chicken and directly rebuts the allegation that the deceased was a thief. His account of the assault remained consistent despite rigorous cross- examination, and his explanation regarding the source of light that enabled him to identify the appellants both plausible and convincing. Although PW5 is related to Edwin Sifuma, who was charged and convicted alongside the appellants before the trial court, that relationship was candidly disclosed. If anything, the disclosure enhances rather than diminishes his credibility, as his testimony was plainly not tailored to shield his relative. His evidence is particularly signicant in placing the appellants at the scene of crime before the arrival of the larger mob and in attributing specic acts of assault to the appellants. This Court therefore nds https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1927/eng@2026-09-25 4

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PW5's testimony to be cogent, credible, and of considerable probative value, when evaluated alongside the totality of the evidence on record. 21. Against this evidence, the Court has considered the rst appellant's defence, which was founded on a complete denial of the prosecution's case and an alibi that she was either at home or at the police station during the material period. She sought to demonstrate the consistency of her conduct by producing an Occurrence Book (OB) extract evidencing her report of the alleged theft. However, her defence must be weighed against the prosecution evidence, particularly the direct eyewitness testimony of PW5, who testied that the rst appellant had employed the deceased, had given him a chicken as partial payment for his labour, and later personally assaulted him using a Y10 construction metal rod. In light of this direct and credible evidence, the rst appellant's denial and alibi are displaced and do not raise a reasonable doubt as to her participation in the assault. 22. Having accepted PW5's evidence as truthful, credible and reliable, we nd that the rst appellant's account that no renovation work was undertaken at her premises and that she never gave the deceased a chicken as part payment for his labour is substantially discredited. While the Occurrence Book (OB) extract corroborates the fact that a report of theft was made to the police, it does not, of itself, establish the truthfulness of the contents of that report or preclude the possibility that the deceased was falsely accused. The evidential value of the OB extract is therefore limited to proving that a complaint was lodged, and not that the deceased had in fact stolen the chicken. 23. The second appellant's defence similarly consisted of a complete denial of the prosecution's case coupled with an alibi. She further relied on the delay in her arrest as a basis for challenging the credibility of the prosecution's case. However, a delay in eecting an arrest, without more, does not negate otherwise credible and cogent evidence identifying an accused person as a participant in the commission of an oence. Her assertion that she was away from the scene of crime must therefore be weighed against the prosecution's eyewitness evidence, particularly the testimony of PW5, which placed her at the scene of crime and attributed to her active participation in the assault. Evaluated against the totality of the evidence on record, her alibi does not raise a reasonable doubt as to her presence at the scene or her involvement in the oence. 24. As regards an alibi defence and the burden of proof, this Court in Victor Mwendwa Mulinge vs Republic (2014) eKLR, held: “ It is trite law that the burden of proving the falsity if at all of an accused’s defence of alibi lies on the prosecution.” 25. In Erick Otieno Meda vs Republic (2019) eKLR, the Court quoted with approval, two South African cases on alibi. The same though persuasive were found to be good law: - in S vs. Maleto en Andere (1998) (1) SACR 127 (w) AT 158 a – e; the Court held: a. There is no burden of proof on the accused to prove his alibi. b. If there is a reasonable possibility that the accused’s alibi could be true, then the prosecution has failed to discharge its burden of proof and the accused must be given the benet of doubt. c. … d. If there are identifying witnesses, the Court should be satised not only that they are honest but also that the identication of the accused is reliable. (‘betron bar’). e. The ultimate test is whether the prosecution had furnished proof beyond a reasonable doubt and for this purpose a court may take into account the accused has raised a false alibi.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1927/eng@2026-09-25 5

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26. In Republic vs Buya (1952) (4) SA 514 (A) AT 521 C it was held: a. An alibi needs to be corroborated by other witnesses and not just a mere regurgitation of the events from the accused’s point of view. b. The alibi defence needs to be introduced at an early stage so as to allow it to be tested, especially during cross-examination of the trial. c. The alibi defence or evidence may often rest on the credibility of the accused and reliability of the evidence that he or she had presented to court. d. The accused does not need to prove the alibi but the prosecution must have presented its case that the accused is guilty beyond a reasonable doubt as to allow the alibi to fail.” 27. In the present case, none of the prosecution witnesses were cross-examined on the appellants’ alibi. If it was not an afterthought, it should have been put to the prosecution witnesses that the appellant was at Felix’s farm 7-10kms away at the time of the alleged oence during their cross-examination. If such information had been put to any of the prosecution witnesses, then it would have been left for the prosecution to investigate the veracity of it. However, it was not put forth until the appellants took the stand in their defence. 28. Reading through the evidence of the appellants’ testimony, it created an unbelievable web, tailored and meant to remove the appellants from the scene of the oence. No wonder the trial court declined to believe them. In view of the foregoing, we satised that the alibi defence was an afterthought and was unbelievable and improbable and was properly rejected. 29. As to the existence of material contradictions and inconsistencies that rendered the appellants’ conviction unsafe, we note that PW4's testimony was inconsistent on the crucial issue of identication. His admission during cross-examination that he did not see the fundamentally undermines his earlier claim of having identied all three appellants. Likewise, his inability to attribute any weapon or overt act to the 1st appellant diminishes the evidential value of his testimony against her. Although his evidence conrms that the deceased was surrounded by a mob following allegations of chicken theft, it does not provide reliable or consistent evidence linking each of the appellant to the assault. 30. That being said, this is weighed against the rest of the evidence presented by the prosecution that places the appellants at the scene of the crime actively participating in the deceased’s assault. We have carefully considered the evidence of the prosecution witnesses and it is our view that the inconsistencies alleged by the appellants were not material enough to warrant interference with the conclusions arrived at by the trial court. 31. The appellants further faulted their identication as the perpetrators of the oence alleging that the oence occurred when it was dark and as such they could not have been identied properly. Firstly, the evidence presented by the prosecution in this regard was consistent and did not change. The record reveals that the crime scene was well lit through torches and motorcycle lights. Secondly, this was not a case of identication of a stranger but rather recognition as the appellants were well known to their accusers being neighbours. This limb of the appeal thus lacks merit. 32. The appellants further anchored their appeal on the prosecution’s failure to prove malice aforethought on their part. The courts, in interpreting the provisions of Section 206 of the Penal Code, have consistently outlined the circumstances under which malice aforethought may be inferred. In the classic case of Republic v Tubere s/o Ochen [1945] 12 EACA 63, the Court held that malice aforethought may be established by considering the nature of the weapon used, the part of the body https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1927/eng@2026-09-25 6

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targeted, the manner in which the weapon was used, and the conduct of the accused before, during, and after the attack. Similarly, in Ogelo v Republic [2004] 2 KLR 14, where the appellant chased the deceased and another person, caught up with the deceased, and stabbed him in the chest with a knife, causing fatal injuries. The Court held that, pursuant to Section 206(a) of the Penal Code, the prosecution had established malice aforethought by proving the accused's intention to cause death or grievous harm. The Court further emphasized that malice aforethought may be inferred from the manner in which the killing was carried out. 33. Likewise, in Ernest Bwire Abanga Onyango v Republic, Criminal Appeal No. 32 of 1990, the Court rearmed that malice aforethought can be inferred from the circumstances surrounding the killing, including the manner in which the fatal act was executed. 34. The principle emerging from Section 206 of the Penal Code and the foregoing authorities is that malice aforethought is established where the prosecution proves, through direct or circumstantial evidence, that the accused formed the requisite criminal intention before translating that intention into the acts or omissions that resulted in the unlawful killing of the deceased. Did the evidence establish the requisite mens rea on the part of the appellants? We have perused the evidence tendered before the trial court and the impugned judgment. We note that by viciously attacking the deceased using the crude weapons highlighted earlier, the appellants had intended to kill or cause grievous bodily harm. The cause of death as highlighted in the post mortem report conrms that the injuries inicted were serious and fatal. As was stated in Rex vs. Tubere s/o Ochen [supra], if repeated blows to the vulnerable parts of the body are inicted, then malice aforethought can be inferred. 35. It is without doubt that the deceased met his death after he was assaulted and fatally injured by a group of villagers or a mob of people. Mob justice is nothing but a form of extra judicial punishment in which a person suspected of wrong doing is humiliated, beaten and in many cases, killed by a mob of people. Such act is criminal, pure and simple. Any person participating in it commits an oence and must invariably be held responsible for the consequences of his unlawful action. 36. In situations where the death of the deceased is attributed to “mob justice” or “mob injustice”, it is dicult if not impossible to pinpoint which person in the mob administered the killer or fatal blow. What is important is that they all took part in assaulting and causing him the injuries from which he succumbed. The evidence adduced by Pw7 is clear that the deceased died from severe head injuries accompanied by massive external haemorrhage. 37. However, a common intention may be drawn from the presence of the assailants at the scene of the oence, their action and even the omission of any of them to disassociate himself or herself from the assault. Section 21 of the Penal Code provides that: “ 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 oence 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 oence.” 38. It was undisputedly established that the deceased was murdered by a mob of people comprising of his village mates. Each of them who took part in assaulting and killing the deceased was as guilty as the other for the murder. In Rex v Tabula Yenka s/o Kirya & others (1943) 10 EACA 51, it was stated that: “To constitute a common intention to prosecute an unlawful purpose ... it is not necessary that there should have been any concerted agreement between the accused prior to the attack on the so-called thief. Their common intention may be inferred from their presence, their https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1927/eng@2026-09-25 7

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action and the omissions of any of them to disassociate himself from the assault.” [Also See Eunice Musenya Ndui v R [2011] eKLR]. 39. In this case, the deceased was assaulted and killed following allegations that he was a chicken thief. All those who took part in the unlawful transaction did not deem it t to let the law take its course and nally resolve the dispute therein; instead, they decided to take the law into their hands. They must therefore be held criminally responsible for the consequences of their unlawful action. Accordingly, we are satised that malice aforethought was suciently proved against all the appellants to the required standard. 40. After considering all the evidence, we are satised that the case against the appellants was proved beyond reasonable doubt. We nd no reason to interfere with the appellants’ conviction. 41. On the appeal against sentence, we observe that the Supreme Court in Francis Muruatetu & Anor vs. Republic, [2017] eKLR the Supreme Court of Kenya armed the importance of judicial discretion in sentencing. It emphasized that courts must weigh the specic circumstances of both the oender and the oence to ensure a just outcome. In passing sentence, the learned Judge noted that the 1st appellant was elderly while the 2nd appellant was a mother with school going children and a husband who was similarly facing murder charges in a dierent court. 42. The learned Judge imposed a sentence of 3 and 5 years respectively for the appellants. Like the trial Judge, we have considered the manner in which the oence was committed, the aggravating factors and weighed them against the extenuating factors in the case. In our view, the sentence meted out on the appellants was too lenient considering the manner in which the oence was committed. The prosecution did not le a Notice of Enhancement of sentence against the appellants. It is not lost on us that having been sentenced on the 26th January 2022, the 1st appellant’s sentence has lapsed while that of the 2nd appellant will lapse next year. In the circumstances, we will not disturb the sentences. 43. Arising from the conclusions arrived at herein above on each and every issue discussed, the appellants’ appeal against both conviction and sentence is dismissed. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2026. ASIKE-MAKHANDIA JUDGE OF APPEAL ....................................... H. A. OMONDI JUDGE OF APPEAL ....................................... L. KIMARU JUDGE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1927/eng@2026-09-25 8

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