Ouma alias Salim v Republic

3. vi. That, suspicion however strong it cannot (sic) used to secure a conviction. The learned trial Judge erred in both law and facts by basing his conviction on suspicion. vii. That, the trial judge erred in law and facts by relying on the evidence of PW 1 and PW 2 for the alleged blood stains found in the house was not taken from sample. viii. That, the Hon trial Judge erred in law and facts by relying on the „„tale tell## (sic) stains found at the scene which were not proved by the prosecution. ix. That, the prosecution witness adduced contradictory and conicting evidence marred with glaring gaps. x. That, the foregoing factors provided were not strong and credible circumstantial evidence against the accused indicating that he was the person responsible for strangling the deceased. xi. That, the mode of his arrest was improper. xii. That, the Hon. Trial Judge erred in law and facts by dismissing his alibi defence which was cogent and truthful to warrant his acquittal. xiii. That, no prosecution witness placed him on the scene of the alleged murder. xiv. That, the investigation ocer did not investigate this case to the required standard. xv. That, the trial Judge erred in law to allow the investigation ocer to produce a post mortem report who was not the examiner the deceased#s body or maker of the report. The appellant’s advocate also led what he called a supplementary memorandum of appeal and submissions, both dated 25th March 2022. The grounds of appeal in the supplementary record of appeal were outlined as: i. The Learned Judge erred in law and fact in failing to appreciate that the prosecution had failed to prove its case to the standard required in law that is, prove (sic) beyond reasonable doubt. ii. That the Learned Judge erred in law in convicting the Appellant with murder based on circumstantial evidence which was marred by (sic) loopholes to sustain a conviction. iii. The Learned Judge erred in law by convicting the Appellant and sentencing him to 30 years imprisonment. 4. The respondent led its submissions dated 18 May 2026. 5. We heard the appeal on 20th May 2026. Learned counsel Ms Nancy Owiti appeared for the appellant while learned Senior Assistant Director of Public Prosecutions Ms Sarah Ogweno appeared for the respondent. The Court allowed the parties time to briey highlight their written submissions. Appellant’s submissions 6. Ms Owiti opened her submissions by urging that the respondent had not proved the charge of murder against the appellant to the standard of proof beyond reasonable doubt. 7. According to the appellant, the respondent did not prove the key ingredients of murder, namely: that the deceased died; that the death was due to an unlawful act or omission by the accused; and that the act or omission was intentional, or done with knowledge that death or grievous harm would probably result. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2021/eng@2026-09-25 2

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8. The appellant contended that the respondent’s case rested on circumstantial evidence with many gaps and loopholes. In particular, it was asserted that: the blood stains found at the crime scene were never taken for forensic analysis; the post- mortem report indicated that the deceased had injuries from a road trac accident, made no mention of any fresh wounds, and was inconclusive on the cause of death; photographs taken at the scene were never produced in court; ngerprints were not lifted from the scene; the only probable eyewitness did not testify; a material witness who allegedly instructed the appellant to leave the scene was not called to testify; and the trial court ignored evidence of the appellant’s own conduct — namely, that it was he who summoned the witnesses to the scene, and so could not have killed the deceased and then ed — and misapprehended the reason why the appellant had failed to open the door. 9. Citing R v Kipkering arap Koske & Ar 16 EACA 135 and Joan Chebii Sawe v R (2003) eKLR, the appellant submitted that the trial court relied on mere suspicion to convict him. 10. Further, the appellant contended that malice aforethought as envisaged under section 206 of the Penal Code was not proved because the murder weapon and/or evidence of a ght at the scene were not produced in evidence. In sum, the appellant urged that the evidence linking him to the murder was not sucient. Respondent’s submissions 11. Ms Ogweno for the respondent took the position that there was sucient circumstantial evidence to convict the appellant. In the respondent’s view, that evidence included: the testimony of the rst prosecution witness that the appellant woke him up and, while holding a piece of wood, told him that he had apprehended a thief; that when the witness accompanied the appellant to his house, the appellant refused to open the door; that after the neighbours were summoned and the door was opened, blood stains were found in the appellant’s house; and that the post-mortem report established the cause of death and showed that the death had been staged to look like a suicide by hanging. 12. The respondent further urged that the testimonies by prosecution witnesses 1 and 2 showed that the appellant had complained about the conduct of his wife bringing men into his house and that this went to show premeditation. 13. This is a rst appeal and our task was outlined Okeno v Republic (1972) EA 32 that: “An appellant on a rst appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court#s own decision on the evidence. The rst appellate court must itself weigh conicting evidence and draw its own conclusion. 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 nding and conclusion; 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.” 14. We will bear in mind the caution. 15. To prove a charge of murder, the prosecution must establish that a person was killed. The appellant did not seriously contest that the death of the deceased was proved. The rst, second and third prosecution witnesses all testied that they found the body of the deceased in the house the appellant shared with a woman, and the appellant himself conrmed in his defence that the deceased’s body was found in his house. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2021/eng@2026-09-25 3

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16. The prosecution must also prove the cause of death. The third prosecution witness, the investigating ocer, produced the post-mortem report, which indicated the cause of death of the deceased was hypoxia due to a tight cord around the neck (oxygen deciency occasioned by strangulation). 17. The thrust of the appellant’s appeal was that there was insucient evidence linking him to the death of the deceased. 18. The rst prosecution witness, a neighbour of the appellant, testied that the appellant woke him just after midnight and told him that he had caught a thief. The appellant was holding a piece of timber and a phone with a torch. The witness testied that he and his wife accompanied the appellant to the appellant’s house, where the appellant pointed out the room in which the thief was, but declined to open the door and instead went to call other neighbours. The witness then called a village elder, who came to the scene. 19. The witness further testied that once the village elder and other neighbours had arrived, the appellant was asked to open the door. He did so, and on entering the house they found blood stains and the deceased dead, hanging from the roof. The appellant and some of the neighbours then ran away. The police were summoned, and the appellant was arrested later. 20. On cross-examination, the witness stated that the appellant had told him he had apprehended a thief, and that on viewing the body he had seen that it had head injuries. 21. The second prosecution witness testied that, on hearing shouts at midnight, he made inquiries and a person called Salim told him that they had found a man in the house of his (Salim’s) sister-in-law. He stated that Salim instructed him to fetch the intruder’s wife, which he did; that on his return, Salim opened the door and the intruder was found hanging; and that Salim then ed the scene. The witness identied Salim as the appellant. 22. On cross-examination, the witness stated that the deceased was found in the appellant’s sister-in-law’s house, that the appellant had inherited the sister-in-law, and that the appellant had complained that she used to bring men into the house. 23. The High Court relied on the evidence of these two witnesses to link the appellant to the murder, noting that no direct evidence had been presented. In nding that a link had been established, the High Court noted that it was the appellant who had woken his neighbours to inform them that he had caught a thief. 24. The High Court further observed that the appellant was reluctant to open the door, that he ed the scene soon after the deceased’s body was found and was only arrested about a month later, and that there were signs of a ght in the house together with blood stains. On that basis, the High Court found that there was strong and credible circumstantial evidence linking the appellant to the murder. 25. We have carefully re-examined the evidence of these two witnesses and asked ourselves what inferences may be drawn. The two witnesses, who are brothers, only became aware of the intruder after being informed by the appellant, slightly after midnight. Their testimonies, that they went to the scene and that the appellant initially declined to open the house, corroborate each other. In addition, they both saw traces of blood in the house. 26. Further, the appellant had complained to the second prosecution witness about his inherited wife bringing men into the house. Without making a nding that the deceased was one of those men — he could equally have been a thief whom the appellant found in the house — and having regard to the time that elapsed between the appellant nding the deceased and locking him in the house before going to alert the neighbours, the blood traces in the house, and the absence of any evidence that a https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2021/eng@2026-09-25 4

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third party entered the house in the interim or of any other intervening factors, a further inference can be drawn that the appellant was responsible for the death of the deceased. 27. In our view, there was sucient circumstantial evidence to link the appellant to the death of the deceased. 28. We now turn to the ingredient of malice aforethought. Section 206 of the Penal Code provides: “ 206 Malice aforethought Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances: a. an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not; b. knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indierence whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; c. an intent to commit a felony; d. an intention by the act or omission to facilitate the ight or escape from custody of any person who has committed or attempted to commit a felony”. 29. The post-mortem report attributed the deceased’s death to hypoxia due to a tight cord around the neck and noted that the deceased had other injuries from a road trac accident. 30. The rst prosecution witness saw the appellant holding a piece of timber when he alerted him to the presence of a thief in the house, and saw traces of blood in the appellant’s house. The third prosecution witness, part of the investigating team, also found traces of blood at the scene and saw signs of a ght. The appellant testied that he locked the deceased in the house while he was still alive. There was no evidence that a third party entered the house when the appellant went to alert neighbours about a suspected thief in the house. The deceased’s death occurred in the appellant’s house and was due to strangulation. The deceased also had injuries, The appellant must have known, or ought to have known, that the said injuries and strangling the deceased would probably lead to his death. 31. On the basis of the circumstantial evidence, we nd that malice aforethought was proved. 32. We have re-evaluated and analysed the evidence and we are satised that there was sucient evidence to convict the appellant. 33. The appellant also challenged the 30 years imprisonment. The statutory penalty for murder is death. The trial court, however, has a discretion when it comes to sentencing. The High Court considered the appellant’s mitigation and also called for a pre- sentence report before sentencing the appellant. The pre- sentence report was not favourable to the appellant. 34. We thus nd no reason to interfere with the sentence. 35. Considering the foregoing, we dismiss the appeal. DATED AND DELIVERED AT KAKAMEGA THIS 25TH DAY OF SEPTEMBER,2026. P. NYAMWEYA ............................. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2021/eng@2026-09-25 5

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JUDGE OF APPEAL R. NGETICH ............................ JUDGE OF APPEAL RADIDO S. OKIYO ............................ JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2021/eng@2026-09-25 6

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