Philip Wabomba Mukubali v Republic

charge and sentenced to serve 25 years’ imprisonment. Page 2 of 11

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2. The appellant is now before this Court challenging the said decision. In his grounds of appeal dated 4 th February 2026, he faults the learned Judge contending that: i). The trial court erred in finding that the prosecution proved the charge beyond reasonable doubt despite relying on contradictory evidence and the testimony of a single witness whose credibility was disputed. ii). The trial court erred in convicting the appellant without proof of motive. iii). The trial court erred in convicting the appellant despite the prosecution's failure to produce the alleged murder weapon. iv). The trial court failed to comprehensively evaluate the evidence, resulting in a miscarriage of justice. v).The trial court erred in sentencing the appellant to 25 years' imprisonment without considering the time spent in remand, the circumstances of the offence, and the appellant's mitigation. 3. Briefly, the evidence in support of the prosecution case was that on the night of 8th February 2017 at around 7.00pm, Cypranus Soita Natembeya, who testified as PW1, was walking home in the company of the deceased, Augustine Wanyonyi, who was from a funeral, when near Namarambi Secondary School they met the appellant who was coming from the opposite direction. The appellant, without uttering a word, drew out a knife and then stabbed the deceased on the Page 3 of 11

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left collar bone; the deceased said: “He has finished me”. When PW1 questioned the appellant about his action, the appellant threatened to stab him too, Page 4 of 11

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prompting PW1 to raise an alarm and as people gathered at the scene, PW1 ran away. 4. Wanjala Khaemba, PW2, testified that the deceased was his brother’s son; on the night of the incident, he heard people screaming, "he has killed him"; he rushed to the scene with a torch and saw the deceased with a stab wound on his chest; he did not see the appellant at the scene but heard his name being mentioned by the crowd. He knew the appellant as a neighbour and a friend to whom he had previously sold land. 5. The evidence of Mukanda Wanjala Justus who knew the deceased as a businessman and a neighbour, testifying as PW3 was that he was on his way from Musimbi Market at around 7:30pm when he heard screams near his home; upon arrival at the scene, he found the deceased lying down with injuries on the left side of his chest; he learnt from the crowd that the deceased had been stabbed by the appellant, whom he knew as a teacher who lived in the neighbourhood. He then relayed information about the incident to the police, and the body was subsequently taken to Webuye Mortuary. 6. Joseph Wanyonyi deceased, Murumba, Page 5 of 11 PW4, the father of the

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ran to the scene from his home after hearing screams and found Page 6 of 11

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his son already dead with a chest injury. The crowd at the scene was shouting that the appellant was the one who killed his son. He stated that the appellant was a neighbour and a retired teacher who had taught the deceased between the year 2013 and 2016. According to this witness, although it was not dark, there was no moonlight. 7. The post mortem report compiled by the retired Dr. Mutoro regarding the examination conducted on 17 th February 2017, was presented by Dr. Edward Milembwa, PW5 of Bungoma Hospital. He testified that the deceased had a single cut/stab wound on the chest that penetrated the right auricle/atrium of the heart, causing an accumulation of blood in the chest cavity. He confirmed the cause of death was shock and excessive bleeding due to a penetrating wound to the heart caused by a sharp object. 8. P.C. No. 36862 Charles Atte, PW6, testified as the investigating officer (now retired) then attached to Webuye Police Station. It was his testimony that on the night of the incident, he visited the scene with the OCS, found the deceased's body with a stab wound near a secondary school, and moved it to the mortuary. Page 7 of 11

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He noted that the appellant was named as the suspect, and; the Page 8 of 11

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appellant later surrendered himself to Webuye Police Station. PW6also took photographs of the appellant's house, which had been demolished by angry members of the public. 9. The appellant, a retired teacher, in his defence gave a sworn testimony, explaining that he knew the deceased and had no grudge against the deceased's family, having previously purchased land from the deceased's uncle. That on the day of the incident, after collecting rent from his rental houses, he was ambushed and robbed by the deceased and PW1, who allegedly stole Kshs. 24,700 from him; that during the ensuing struggle, he used the deceased as a shield when PW1 charged at him, and that it was PW1 who accidentally stabbed the deceased while aiming at him. That he heard the deceased say “Daddy umenidunga”, after which he escaped. He further testified that after the incident, members of the public looted and burnt his home, following which he voluntarily surrendered to the police through his advocate. 10. The trial court, after reviewing the evidence found that the prosecution had proved its case against the appellant beyond reasonable doubt, convicted him and sentenced him to serve 25 Page 9 of 11

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years’ imprisonment. Page 10 of 11

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11. At the hearing of the appeal, learned counsel Mr. Ogenga appeared for the appellant, whilst learned prosecution counsel Mr. Otieno appeared for the Respondent. In support of his case, Mr. Ogenga relied on his written submissions and further submitted in plenary that the conviction was unsafe as it was based solely on the evidence of a single witness PW1, whose credibility was questionable. That the prosecution failed to establish any motive for the appellant to kill the deceased whereas the appellant’s defence remained unshaken. It was further submitted that there were material inconsistencies in the prosecution case, specifically the testimony of PW1 that after the appellant stabbed the deceased he stayed with the deceased, which contradicted that of PW3 who went to the scene and testified that he never saw PW1 at the scene. 12. Mr. Otieno, conceded the appeal, acknowledging that the prosecution had failed to prove the case beyond reasonable doubt. 13. This is a first appeal, and the duty of the first appellate court is to conduct a thorough and independent review of the evidence presented in the trial court and reach its own Page 11 of 11

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conclusions. This Page 12 of 11

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duty was articulated in the often-cited case of Okeno v Republic [1972] EA 32, thus: “An appellant on a first 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 first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings 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.” 14. We have considered the record, the submissions and the authorities cited by counsel; we find that the issues that arise for determination are: a) whether the offence of murder was proved to the required standard; b) whether there were contradictions in the prosecution evidence and if so, whether they went to the root of the prosecution’s case; 15. The appellant was charged under Section 203 of the Penal Code. The section provides that: “Any person who of malice aforethought, causes the death of another person by an unlawful act or Page 13 of 11

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omission is guilty of murder.” Page 14 of 11

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16. To succeed in proving a charge of murder, the prosecution must prove the following ingredients: a) the death of the deceased and its cause. b) that the death was caused by an unlawful act or omission on the part of the accused. c) that in causing the death of the deceased, the accused had malice aforethought. 17. We take note that the fact and cause of the death of the deceased is not disputed. The post-mortem report produced by PW5 indicated that the cause of death was shock and excessive bleeding due to a penetrating stab wound to the heart caused by a sharp object. 18. Was the deceased’s death caused by an unlawful act or omission on the part of the appellant? The prosecution evidence rested on the sole testimony of PW1 who testified that he was with the deceased when he was stabbed by the appellant. His testimony was that he stayed with the deceased after the stabbing until people came; then he went home, leaving the deceased at the road and informed his wife. This testimony was contradicted by PW2 who seemed to have been the first at the scene and who testified that he did not find PW1 there. Page 15 of 11

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19. Further exacerbating this contradiction was the appellant’s defence that the deceased and PW1 were attempting to steal from him and after PW1 accidentally stabbed the deceased, he ran away. Logically, it then follows that PW1 could not have been at the scene as he alleged and as confirmed by PW3. We take note that the appellant’s version of events as described in his defence remained uncontroverted by the prosecution. 20. Consequently, it is our considered view that the evidence presented by the prosecution did not form a clear chain of events linking the appellant to the murder of the deceased. The appellant offered a credible explanation as to the circumstances leading up to the deceased’s death. The contradictions in the testimony presented by PW1 were so material as to go to the core of the prosecution’s case. 21. The standard of proof in a criminal case must be beyond reasonable doubt enough to lead to a conviction. Our criminal justice system is pegged on Article 50(2) (a) of the Constitution which guarantees individual freedoms under the bill of rights, particularly, the aspect of innocence until Page 16 of 11

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proved guilty. This burden of proof rests on the prosecution throughout the trial. Page 17 of 11

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22. This proof need not reach certainty but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadows of doubt. The law would fail to protect the community if it admitted fanciful possibilities to defeat the course of justice. If the evidence is so forceful against a man to leave only a remote possibility in his favour, the case is proved beyond reasonable doubt but nothing short of that will suffice. 23. Indeed, where there exists a doubt of any kind in a criminal matter, and evidence which would likely advance the case of the prosecution is not adduced, the effect of such an occurrence would go to the benefit of an accused person. It is a foundational principle that mere suspicion, no matter how strong, is not sufficient to convict an accused person. A criminal conviction requires that the prosecution proves the guilt of the accused beyond any reasonable doubt. See Woolmington v DPP 1935 AC 462. 24. We are thus satisfied that the prosecution failed to prove beyond reasonable doubt that the appellant was the one who unlawfully caused the death of the deceased. Being of that Page 18 of 11

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view, there arises Page 19 of 11

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no need to consider the last element of whether the accused had malice aforethought. 25. Consequently, it is our finding that the conviction was unsafe and is hereby quashed; the sentence be and is hereby set aside. The upshot is that the appeal is merited and is allowed. The appellant shall be set at liberty forthwith unless otherwise lawfully held. 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 Page 20 of 11

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