Simiyu v Republic

chest and neck, while the appellant was lying on the oor bleeding from the abdomen. A blood-stained knife was recovered next to the appellant. Both were rushed to Bungoma County Referral Hospital, where the deceased was pronounced dead on arrival, while the appellant, though alive, was unable to speak. PW6 further observed that the deceased had sustained stab injuries to the front of her neck. 4. PW1, Dr. Haron Ombongi, conducted a post-mortem examination on the deceased on 26th February 2018. He observed ve stab wounds comprising three on the neck, a deep stab wound on the chest, and another on the left thigh. He further noted that the penetrating stab wounds had injured the deceased's left lung and heart. He concluded that the cause of death of the deceased was cardiovascular arrest due to the stab wounds. The deceased’s body was identied by PW3, James Barasa, and PW5, Aggrey Wanyama. PW4, Sergeant Benjamin Weitui, produced the crime scene photographs. 5. PW8, PC Ombima Oyenda, of Bungoma Police Station, Sangalo Patrol Base, testied that he took over the investigation le from Senior Sergeant Nahashon Muriuki, the original investigating ocer, after the latter retired from service. He stated that following a report of murder at Airport Trading Centre, the investigating ocer visited the scene and recovered a blood- stained knife from the house. It was produced in evidence as an exhibit. PW8 further testied that he visited Bungoma County Hospital, where he found the appellant had been admitted with injuries. 6. The appellant gave sworn testimony and denied the information laid against him. He testied that the deceased was his girlfriend and that they were living together at Sangalo Institute. He stated that on the material date, while they were alone in their house, the deceased accused him of having another girlfriend. Although he denied the allegation, the deceased began packing her belongings to leave. He attempted to restrain her, but she pushed him, causing him to fall. As he got up, the deceased allegedly stabbed him in the abdomen with a knife. A struggle over the knife ensued, during which the deceased attempted to stab herself. The appellant claimed that the deceased stabbed herself once before he lost consciousness. He later regained consciousness at Bungoma County Hospital, where he underwent surgery and remained admitted for three days. He denied stabbing the deceased or attempting to take his own life. He stated that only he and the deceased were in the house at the time of the incident. 7. At the conclusion of the trial, the trial court found that the deceased died from multiple stab wounds sustained while alone in the room with the appellant. It rejected the appellant's defence that the deceased had stabbed herself, holding that the nature, number and location of the injuries were inconsistent with self-iniction and established that they were inicted by the appellant. The trial court further found that the fatal assault arose from a domestic quarrel between the couple over allegations of indelity and was committed in the heat of passion, thereby ruling out malice aforethought. The learned Judge consequently convicted the appellant of the lesser oence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. Upon conviction, the appellant was sentenced to serve twenty-ve (25) years imprisonment. 8. The appellant, dissatised with the decision of the trial court, led the present appeal before us. By a memorandum of appeal dated 15th August, 2023, the appellant challenged his conviction and sentence on grounds that: the prosecution failed to prove its case beyond reasonable doubt; the trial court failed to properly evaluate the evidence on record; and that the conviction was founded on hearsay evidence and uncorroborated circumstantial evidence, in the absence of an eyewitness. 9. The appeal was heard by way of written submissions. The appellant was represented by learned counsel Ms. Kogoya. It was her submission that the prosecution failed to prove the oence of manslaughter beyond reasonable doubt, particularly that the appellant unlawfully caused the deceased's death. While conceding that the fact and cause of death were undisputed, counsel argued that none of the prosecution witnesses witnessed the incident and that the conviction was founded entirely on hearsay https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1945/eng@2026-09-25 2

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and circumstantial evidence. It was further contended that no forensic evidence, including ngerprint analysis, linked the appellant to the murder weapon, and that the investigations report did not support the assertion that the appellant had stabbed himself. Counsel maintained that the appellant's defence claiming that the deceased stabbed him and subsequently inicted the fatal injuries upon herself during a struggle over the knife, was not displaced by the prosecution. We were therefore urged to nd that the prosecution failed to discharge its burden of establishing the appellant's guilt beyond reasonable doubt. In the premises, counsel invited us to allow the appeal, quash the conviction, set aside the sentence, and set the appellant free. 10. The appeal was opposed. Principal Prosecution Counsel, Ms.Matere, submitted that the trial court properly evaluated the evidence and correctly convicted the appellant of manslaughter. Counsel argued that the medical evidence established that the deceased sustained multiple stab wounds, while the appellant suered only a single stab wound, thereby disproving his defence that the deceased had inicted the fatal injuries upon herself. It was further submitted that the evidence of PW7, who heard the deceased scream that "Simon was killing her," coupled with the fact that only the appellant and the deceased were in the locked room, irresistibly pointed to the appellant as the perpetrator. Counsel maintained that the trial court rightly found that the oence was committed in the heat of passion, thereby reducing the information from murder to manslaughter. She further contended that the appellant's mitigation had been duly considered before sentence was imposed and urged the Court to dismiss the appeal on both conviction and the sentence. 11. This is a rst appeal. As such, it is the duty of this Court to subject the evidence adduced before the trial court to a fresh scrutiny and re-evaluation, before reaching its own independent determination whether or not to uphold the conviction and sentence of the Appellant. In doing so, this Court is required to bear in mind that it neither saw nor heard the witnesses as they testied and cannot therefore make comment regarding the demeanour of the witnesses (See Okeno vs Republic [1972] EA 32). 12. We have considered the evidence adduced before the trial Court, the grounds of appeal and the submission made before us, and we nd that the main issue for determination is whether the evidence before the trial court met the legal threshold required to sustain a conviction for the oence of manslaughter against the appellant. 13. Section 202 of the Penal Code provides that any person who, by an unlawful act or omission, causes the death of another person is guilty of the felony termed manslaughter. The ingredients of the oence of manslaughter are substantially the same as those of murder, save that proof of malice aforethought is not required. This Court in Chirchir & another v Republic [2025] KECA 1369 (KLR) held thus: “ …we appreciate that the threshold for proving manslaughter is not as stringent as that of murder. Simply put, all that the prosecution needs to establish is the existence of a dead body linked to the accused person’s unreasonable action or omission. For manslaughter, the state of the mind (here we are talking about premeditation) does not count.” 14. In this appeal, the fact and cause of death of the deceased were not disputed. The evidence of PW1, Dr. Haron Ombongi, established that the deceased sustained ve stab wounds comprising three on the neck, one on the chest and another on the left thigh. The penetrating injuries damaged the left lung and heart, causing cardiovascular arrest. The post-mortem ndings were not challenged. 15. The principal issue before us concerns whether it was the appellant who inicted the fatal injuries. The appellant faulted the trial court for relying on hearsay and circumstantial evidence in the absence of eyewitness evidence. It is true that none of the prosecution witnesses witnessed the actual stabbing of https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1945/eng@2026-09-25 3

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the deceased. However, a conviction may properly be founded on circumstantial evidence provided that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. 16. This Court in the case of Ahamad Abolfathi Mohammed & another v Republic [2018] KECA 743 (KLR) pronounced itself as follows on circumstantial evidence: “However, it is a truism that the guilt of an accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: ‘It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensied examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.’” 17. In the present appeal, the appellant and the deceased lived together. They were involved in a romantic relationship. On the material date, PW7 testied that she heard the deceased scream for help and specically crying out that "Simon was killing her." There is no suggestion that PW7 harboured any ill motive against the appellant or had any reason to falsely implicate him. Acting on that information, PW6 alerted the institute's security personnel and the police. PW2, PW6 and the police proceeded to the house and found it locked. Upon forceful entry, they found only two people inside the house; the deceased lying on the bed with multiple stab wounds and the appellant lying on the oor with a stab wound to his abdomen. A blood-stained knife lay next to the appellant. Most signicantly, the appellant himself admitted that only he and the deceased were present in the house throughout the incident. 18. That admission by the appellant eectively eliminated the possibility of intervention by a third party. Once it was established that only the appellant and the deceased were in the locked house, the evidential burden shifted to the appellant to oer a plausible explanation as to how the deceased sustained the multiple fatal injuries. His explanation was that the deceased stabbed him and thereafter stabbed herself during a struggle over the knife. The trial court rejected that explanation, and rightly so in our view. 19. The appellant's account does not withstand scrutiny when tested against the medical and other evidence on record. His assertion that the deceased inicted the fatal injuries upon herself during a struggle over the knife is irreconcilable with the post-mortem medical ndings. PW1 testied that the deceased sustained ve stab wounds inicted on dierent and vulnerable parts of the body, including three to the neck, one to the chest and another to the thigh, with injuries penetrating the lung and heart. As the trial court correctly observed, the number, nature and location of those injuries were wholly inconsistent with self- iniction. We are therefore satised that the prosecution evidence eectively displaced the appellant's explanation. The only inference that can be drawn from the above circumstances is that it was the appellant that inicted the fatal injuries on the deceased. 20. The appellant, on the other hand, sustained only a single stab wound to the abdomen. In our view, the marked disparity between the injuries sustained by the appellant and those suered by the deceased further reinforces the conclusion that the appellant's account was inconsistent with the adduced medical evidence. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1945/eng@2026-09-25 4

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21. The appellant also contended that no forensic evidence or ngerprint analysis linked him to the murder weapon. While forensic evidence may strengthen a prosecution case, it is not a legal prerequisite for a conviction. A criminal charge may be proved by any admissible evidence which establishes guilt beyond reasonable doubt. In the circumstances of this case, where the appellant admitted being alone with the deceased in a locked house, where the deceased was heard screaming and him as her attacker moments before she succumbed to her injuries, where a blood-stained knife was recovered beside him, and where the medical evidence displaced his defence, the absence of ngerprint analysis does not create any reasonable doubt. 22. We also do not agree with the appellant’s assertion that the conviction rested on hearsay evidence. The conviction was anchored on admissible evidence comprising PW7's direct testimony regarding the deceased's cries for help, the evidence of PW2 and PW6 concerning the state of the scene immediately after the incident, the medical evidence of PW1, the recovery of the murder weapon, and the appellant's own admission that only he and the deceased were present in the locked room. Far from being speculative, the evidence formed a coherent and compelling narrative pointing irresistibly to the appellant as the perpetrator. 23. We therefore nd no fault in the trial court’s conclusion that it was the appellant who unlawfully inicted the fatal injuries upon the deceased. We equally agree with its nding that the evidence disclosed a domestic altercation arising from allegations of indelity which escalated into a fatal assault committed in the heat of passion. The trial court was therefore entitled to nd that malice aforethought had not been established, and to convict the appellant of the lesser oence of manslaughter instead of murder. 24. In the end, the appellant has failed to demonstrate any misdirection in fact or law on the part of the trial court. On our own independent evaluation of the entire record, we are satised that the prosecution proved all the ingredients of the oence of manslaughter beyond reasonable doubt. The conviction was safe and was supported by overwhelming circumstantial and medical evidence. 25. Accordingly, we nd no merit in this appeal. The appeal against conviction fails and is hereby dismissed. We also nd no basis upon which to interfere with the sentence imposed by the trial court, which was lawful and founded upon proper sentencing principles. The appeal against sentence is likewise 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 original. DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1945/eng@2026-09-25 5

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