https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1160

Agumba & another v Republic (Criminal Appeal E003 of 2023) [2026] KECA 1160 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1160 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E003 of 2023 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA June 12, 2026 Between Abern Mbija Agumba 1st Appellant Jared Otieno Mbija 2nd Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Migori, (Mrima, J.) dated 16th June, 2020 and 24th July, 2020, respectively in HCCRC No. 7 of 2016 Criminal Case 7 of 2016 ) Judgment 1.The prosecution’s case in this appeal paints a tale of a grim tapestry woven through the threads of testimony and circumstances. The deceased, a renowned youth leader within Rongo town Community was last seen in convivial company at Stage Park Bar in the Town and, departed arm-in-arms with the 1st appellant, shadowed closely by the 2nd appellant. Hours later, his lifeless, body was discovered bearing wounds so grotesque as to silence even the most hardened observer. The 2nd appellant, fleeing from the scene like a character plucked from a tragic play, was apprehended still clutching on a panga that was still wet with blood, as if the weapon itself bore witness to the crime. Forensic science, that modern oracle, spoke with precision: the stains upon the garments worn by the appellants on the fateful day and the blood on the blade of the panga in the possession of the 2nd appellant matched the blood samples of the deceased. From the bar’s dim lights to the mortuary’s cold slab, the chain of witnesses’ villagers, police officers, and experts alike constructed a narrative of violence unrelieved, painting in stark hues the portrait of a 27 years old young life brutally extinguished. 2.This is the canvas upon which the trial court rendered its verdict, and it is the canvas upon which we, as the first appellate court, must now cast our judicial eye. 3.The appeal arises from the judgment of the High Court of Kenya at Migori (Mrima J) delivered on 16th June 2020 and the sentence of thirty years imprisonment subsequently passed on 24th July 2020 in Criminal Case No. 7 of 2016, In the said case, the appellants, Abern Mbija Agumba and Jared Otieno Mbija and two other co-accused were arraigned in court on the information charging them with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the information were that on 14th February 2016 at Stage Park Bar in Rongo Town, Migori County, they jointly murdered Shem Shefa Ongache, “the deceased”. After trial, the two co-accused were acquitted, while the appellants were convicted and each sentenced to thirty years’ imprisonment. 4.The brief facts of the case as laid out by the prosecution were that on the evening of 14th February 2016, the Stage Park Bar in Rongo was teaming and bustling with patrons. Michael Okumu Janduong (1) was among them. At about 8.00pm the deceased whom he knew very well as a clan member, sauntered into the bar, sat at a table and ordered a drink. Shortly afterwards the 1st appellant joined him. Soon thereafter, the 2nd appellant entered the bar as well and sat at the counter. The deceased and the 1st appellant appeared cordial, conversing and drinking together. After some time, the deceased and the 1st appellant left the bar together hand in hand followed shortly thereafter by the 2nd appellant. No sooner had they left than Word filtered through that the deceased had been killed. PW1 rushed outside but was restrained or prevented from proceeding to the scene by the 1st appellant who pushed him back into the bar telling him that they were killing a thief whose case had already been reported at Kamagambo Police Station. When soon thereafter police officers arrived at the scene, he pointed out to them the 1st appellant and two others as the perpetrators of the crime and they were arrested on the spot. He insisted that he had last seen the deceased in their company. 5.Charles Othim Owiti (PW2) corroborated this account. He too was in the bar when he saw the deceased enter the bar, order a drink, and was soon thereafter joined by the 1st appellant. He confirmed that the deceased and the 1st appellant then left together, followed closely by the 2nd appellant. While outside, PW2 heard a woman cry out “you killed Shem,”. When he went outside, he came face to face with the deceased body behind a bus which was surrounded with several members of the public. The body was thereafter removed to Homa Bay County Referral Hospital mortuary prior to the post-mortem. Joshua Ganda Ochiel (PW3), an uncle to the deceased later identified the body of the deceased at the mortuary for purposes of post mortem which was conducted by Dr. Osuri Kevin and witnessed by PC Alex Chebii (PW4), then attached to Kamagambo Police Station. 6.At the same time, events unfolded at the Deputy County Commissioner’s office. APC Ambrose Epat (PW5) was on guard duties when a man rushed into the compound claiming he was being pursued by boda-boda riders. The riders soon arrived, alleging that the man had killed someone at Stage Park Bar. PW5 detained the suspect, later identified as the 2nd appellant. While processing the compound he recovered a blood-stained panga next to a public works vehicle. He witnessed it being photographed before it was collected by police officers. The forensic link to the murder by the appellants was provided by PW6 the Government Chemist, who examined the exhibits forwarded to him. He confirmed that the deceased’s clothes, the apparels worn by the appellants, and the recovered panga all bore the blood samples of the deceased. 7.PW7, Dr. Sammy Ruwa Mwatela produced the post-mortem report on behalf of Dr. Osuri Kevin. The examination revealed three deep cut wounds on the head with herniating brain matter, and deep cuts on both legs. The cause of death was given as hypovolemic shock due head injury. CPL Joseph Bora, PW8 accompanied CI Murunga to the bar, where they found the deceased’s body lying in a pool of blood with horrific injuries. He joined in the pursuit of the suspect armed with a panga, later identified as the 2nd appellant, who fled towards the Deputy County Commissioner’s offices. The pursuit was successful and led to the arrest of the 2nd appellant who was then charged. CI Kenneth Kiruai, PW9 the initial investigating officer, confirmed that he recovered the blood-stained panga and also noted that the appellants when arrested had fresh bloodstains on their clothes. He collected the garments and forwarded them together with the panga for forensic analysis. On his part, Dr. Maurice Ouma Otieno, PW10 examined the mental status of all the appellants and confirmed that they were fit to stand trial, while Sgt. Benson Ingosi, PW11 photographed the scene of crime as well as appellants, together with the bloodstained clothes worn by them. 8.PW12, PC John Hilale, who later took over the investigations, prepared the Exhibit Memo Form and forwarded the samples to the Government Chemist. Finally, PW13 – Bernard Ochieng Adera, the registered owner of the motor vehicle KBZ 067X that was in possession of the deceased’s and in which he drove to the stage Park Bar, stated that he had hired the motor vehicle to the deceased to transport his ailing sister to hospital. He later learnt of the deceased’s death and confirmed ownership of the vehicle through the logbook. 9.Placed on their defence, the appellants all denied involvement in the murder. The 1st appellant raised an alibi, contending that he was not present at the scene and that the evidence linking him to the murder was fabricated. The 2nd appellant stated that he had gone to the Sub-County Commissioner’s office to report about a suspicious motor vehicle whereat he was arrested, insisting he was not at the scene of the murder. He denied ever being found with a panga, or blood-stained clothes. Both appellants challenged the credibility of the prosecution witnesses and maintained that they were victims of mistaken identity and selective prosecution. 10.In its judgment, the trial court found that although there was no direct evidence linking the appellants to the crime, the circumstantial evidence presented by the prosecution was sufficient to establish their guilt. It held that the recovery of the blood-stained panga and clothes from the appellants, together with the testimonies of PW1 and PW2, formed a chain of evidence pointing irresistibly to the appellants as the perpetrators of the offence. Consequently, it convicted them of the offence and sentenced each one of them to thirty years’ imprisonment as already stated, while acquitting the two co-accused. It is against this conviction and sentence that the present appeal has been lodged before us. 11.The appellants, in their grounds of appeal contend that the trial court erred in law and fact in: holding that the prosecution had proved the ingredients of the offence of murder beyond reasonable doubt; relying on circumstantial evidence which was not cogent, firm, or complete enough to sustain a conviction; finding that the appellants were positively linked to the recovery of a blood-stained panga and clothes; admitting and relying upon blood-stained clothes allegedly recovered from the appellants notwithstanding the absence of an inventory; relying on irregular DNA sampling procedures; relying on the testimonies of PW1 and PW2 which it had itself discredited in acquitting the two co-accused; failing to consider the possibility of intoxication of PW1 and PW2 which undermined their reliability as witnesses; failing to give due weight to the appellants’ alibi defences; failing to find that the trial was unfair and contrary to Article 50 of the Constitution due to delays, lack of disclosure of exhibits, and irregularities in representation; and finally, erred in imposing a sentence which was harsh and excessive in the circumstances. 12.The appeal was heard by way of written submissions with limited oral highlights. The appellants appeared virtually from Naivasha Maximum Prison, being represented by Mr. Kisera, learned counsel, whereas Ms. Onyango, holding brief for Ms. Ikol, learned Assistant Director of Public Prosecutions appeared for the respondent. 13.Counsel for the appellants submitted that the conviction was based entirely on circumstantial evidence, and that the prosecution failed to prove beyond reasonable doubt that it was the appellants who caused the death of the deceased. He argued that none of the prosecution witnesses saw the appellants kill the deceased, and therefore there was no direct evidence linking them to the offence. He contended that the circumstantial evidence relied upon did not meet the legal threshold, as it was riddled with contradictions and gaps. 14.Counsel further complained that crucial witnesses such as the boda- boda riders who pursued the 2nd appellant were not called to testify. He also submitted that the panga was never dusted for fingerprints to link it to the appellants. It was further submitted with regard to blood-stained clothes that no inventory was prepared, to demonstrate whether the chain of custody of the items was broken, and DNA sampling was irregularly ordered by a police constable below the rank authorized by section 122A of the Penal Code. Regarding the evidence of PW1 and PW2, counsel asserted that the trial court itself discredited their testimony when acquitting the two co-accused, yet paradoxically relied on the same evidence to convict the appellants. 15.On sentence, counsel submitted that if the conviction is found unlawful, the sentence imposed must equally fall. However, should the conviction be upheld, counsel urged the Court to reconsider the mitigation and pre-sentencing report, and to reduce the sentence to the period already served as in his view the sentence imposed was harsh and manifestly excessive. 16.In opposition to the appeal, counsel for the respondent urged the Court to uphold both the conviction and sentence, contending that the trial court properly evaluated the evidence and reached a sound determination. It was submitted that the prosecution discharged its burden of proving all ingredients of the offence of murder. Counsel emphasized that the circumstantial evidence presented formed a complete chain pointing irresistibly to the appellants’ guilt, and that the contradictions alleged by the defence were minor and did not weaken the overall case of the prosecution. 17.On the recovery of the blood-stained panga and clothes, counsel maintained that the exhibits were lawfully obtained, properly analyzed, and positively linked to the appellants. The DNA results, together with the testimonies of the investigating officers and government chemist, all corroborated the prosecution’s case. Counsel further argued that the testimonies of PW1 and PW2, though challenged by the appellants, were credible and consistent in placing the appellants at the scene of crime shortly before and after the deceased’s death. Counsel dismissed the appellants’ claims of unfair trial, asserting that the proceedings complied with Article 50 of the Constitution, that full disclosure of the prosecution evidence was made to the appellants, and that, in any event the appellants were represented by counsel throughout the trial. It was submitted that the trial court correctly rejected the appellants’ alibi defences, as they did not displace the strong prosecution evidence against them. On sentence, counsel argued that the imprisonment term imposed was lawful, proportionate, and reflective of the seriousness of the offence. 18.As the first appellate court, we have re-evaluated and re-analysed the evidence on record as we are statutorily obligated. Upon re- evaluation, we were expected to come up with our own independent conclusion(s). In so doing, we should bear in mind that we did not have the advantage of either seeing or hearing the witnesses testify for which we should give due allowance. See Okeno v Republic [1972] E.A. 32. 19.Having considered the record before us, the submissions of both counsel, and the applicable law, the issues that fall for determination may be condensed into four broad thematic areas, whether: the prosecution proved the information of murder against the appellants beyond reasonable doubt; the circumstantial evidence relied upon met the legal threshold to sustain a conviction; the appellants’ fair trial rights under Article 50 of the Constitution were violated; and whether the sentence imposed on each appellant was lawful and proportionate in the circumstances. 20.On the first issue, section 203 of the Penal Code provides inter alia:“Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.” 21.Section 206 defines malice aforethought and which is relevant to the circumstances of this case as;“a)An intention to cause the death of or to do grievous harms 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 harms to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous harm is caused or not, or by a wish that it may not be caused;c.Intent to commit a felony.” 22.We need not re-invent the wheel on the elements the prosecution need to prove on an information of murder. The prosecution has to prove: the death of the deceased and its cause; the death was caused by an unlawful act of commission or omission on the part of the accused; and that the accused was motivated by malice aforethought in committing the said act. This is how it was put in Abdi Kinyua Ngeera v Republic [2014] KECA 654 (KLR):“For the offence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the accused had the malice aforethought.” 23.In the present case, the fact of death of the deceased and its cause were not contested. Indeed, several witnesses, including PW1 through PW6, in one or another saw the body of the deceased either at the scene or in the morgue. PW7, the scene of crime officer, documented the condition of the body through photographs, while PW8, the investigating officer, examined the scene and confirmed that the body was found in situ. Even the appellants acknowledged this fact. PW9, tendered in evidence the post-mortem report whose conclusion was that the deceased succumbed to severe head and chest injuries caused by blunt force trauma. This factual sequence of events established both the reality of death and the cause thereof. 24.Were the appellants responsible for the death of the deceased? This will obviously lead us directly to the consideration of the second issue regarding whether the circumstantial evidence relied upon to convict the appellants met the legal threshold as well. In other words, whether, the circumstantial evidence was such that it led to the inevitable and irresistible conclusion that the appellants were responsible for the death of the deceased? Alternatively did the prosecution prove beyond reasonable doubt that it was the appellants and nobody else who committed the unlawful act that led to the death of the deceased? 25.From the evidence tendered it is clear that none of the prosecution witnesses actually saw or witnessed the appellants or indeed any other person kill the deceased. Thus, there was no direct evidence linking the appellants to the death of the deceased. The prosecution case on this aspect therefore hinged wholly and entirely on circumstantial evidence. In the case of Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, this Court had this to say 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 intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.’” 26.The conditions for reliance on circumstantial evidence in criminal trials have been clearly set out by this Court, and it has been emphasized that such evidence must be credible, consistent, and conclusive, forming an unbroken chain that leads only to the inference of guilt against the accused. Suffice to mention Abanga alias Onyango v Republic – CR. App NO. 32 of 1990 (UR) in which this Court stated as follows:“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:i.the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established,ii.those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;iii.the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.” 27.In the factual matrix of this appeal, the prosecution’s circumstantial evidence was anchored on three strands that, when taken together, formed a coherent chain pointing to the appellants’ guilt. The deceased was last seen alive at a local bar in the company of the appellants. Shortly thereafter, he left the bar in their company and was never seen alive again. Within no time his body was discovered outside the same bar at having been cut severally by a panga, the 1st appellant who had just walked out of the bar with deceased attempted to stop the bar patrons from accessing the body of the deceased at the scene proclaiming that they were killing a thief whose case had been reported at Kamagambo Police Station. In the meantime, the 2nd appellant who too had walked out with the deceased soon before he met his death, took to his heels from the scene of crime with a blood-stained panga but was pursued by boda-boda riders and arrested at the sub- county Commissioner’s offices in Rongo Town. We note that the appellants have complained that none of these witnesses were called to testify. In our view however the complaint is without basis as 2nd appellant does not dispute the fact that he was arrested at the Rongo sub- County Commissioner’s Offices. In any event PW5 and PW8 testified extensively on this aspect which was sufficient. 28.The blood-stained panga and apparels won by the appellants on the material day and which too had blood stains were retrieved and subjected to DNA profiling. The forensic analysis confirmed that the blood samples found on the blade of the panga and the apparels worn by the appellants matched the blood samples of the deceased. Although the appellants sought to discredit this evidence by pointing to contradictions in the recovery process and chain of custody, the trial court found these discrepancies to be minor and not sufficient to break the chain of circumstantial evidence and we agree. The issue of the samples being ordered for by unauthorized personnel was never raised in the trial court for determination though the appellants were represented by able counsel throughout and for that reason, we decline to entertain it. 29.The Last Seen Doctrine is an instantiation of circumstantial evidence and an application of section 111 of the Evidence Act. Section 111(1) of the Evidence Act casts the burden of proof on the accused person in certain circumstances, and it provides as follows:“111 (1)When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him:Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether in cross-examination or otherwise, that such circumstances or facts exist: Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt of the accused person in respect of that offence.” 30.The Last Seen Doctrine operates on the factual presumption that where the deceased is last seen alive in the company of the accused, and the time interval between that encounter and the discovery of the body is so proximate as to exclude the possibility of intervention by another party, the inference of guilt against the accused becomes compelling. In such a case, the burden of proof shifts to the person last seen with the deceased to negate this fact and if he is unable to give a lucid and sufficient explanation about his innocence then the presumption becomes even stronger. See Abanga alias Onyango v Republic, CRA NO.32 of 1990 (UR) and the Nigerian case of Stephen Haruna v The Attorney General of the Federation [2010]1 iLAW/CA/A/86/C/2009. In the present case, the evidence established that the deceased was last seen leaving the bar in the company of the appellants and was not seen alive soon thereafter. Indeed, shortly thereafter, his body was discovered having been cut severally by a sharp object preferably, a panga. We must point out that the proximity in time between the deceased leaving the bar with the appellants and the subsequent recovery of his body, coupled with the incriminating exhibits, satisfied the conditions for the safe application of the Last Seen With Doctrine. 31.The appellants, being the last persons seen with the deceased, bore the evidential burden to provide a credible explanation of how the deceased met his death. Their failure to do so strengthened the presumption of guilt. The co-existing circumstances raised by the defence did not weaken the prosecution’s case. In line with the settled principles on circumstantial evidence, the trial Court correctly held that the chain was complete and unbroken, leading irresistibly to the conclusion of the appellants’ guilt. In our view, the invocation of this doctrine to found a conviction sufficiently answers the appellants’ complaints regarding their identification and or recognition at the scene of crime, recovery of blood- stained panga and clothes linked to the appellants, DNA sampling procedures, their Alibi defences and the alleged breach of Article 50 of the Constitution. 32.In a nutshell, we are satisfied that the three strands of evidence, taken together, formed a consistent and complete chain pointing irresistibly to the appellants in the commission of the offence. Accordingly, the circumstantial evidence led met the legal threshold required to sustain a conviction. 33.On the third issue which we have slightly addressed in the preceding paragraph, that is, whether the appellants’ fair trial rights under Article 50 of the Constitution were violated, we note that Article 50(2) of the Constitution guarantees every accused person the right to a fair trial, including the right to be informed of the charge, to have adequate time and facilities to prepare a defence, to be represented by counsel, to have disclosure of all evidence, and to be tried without unreasonable delay. 34.This Court in David Macharia Njoroge v Republic [2011] eKLR, recognized that state-funded counsel is only required where substantial injustice would otherwise result. The Supreme Court in Karisa Chengo & 2 Others v Republic [2017] eKLR reiterated that the right to representation is context-specific and must be assessed against actual prejudice suffered. Further, in Thomas Patrick Gilbert Cholmondeley v Republic [2008] eKLR, this Court emphasized that disclosure of all relevant material is a constitutional imperative, but also clarified that minor lapses which do not occasion prejudice cannot vitiate a trial. 35.In the present appeal, the record demonstrates that the appellants were duly informed of the charges, participated actively in the proceedings, cross-examined witnesses, and tendered sworn testimony in their defence. They were indeed represented by counsel throughout, and when their initial counsel withdrew, the court ensured continuity of representation. Disclosure of exhibits was made, and the appellants had adequate opportunity to challenge the evidence. The delays in concluding the trial complained of were not unreasonable and were explained by the complexity of the case. Accordingly, we are satisfied that the appellants’ rights under Article 50 were respected, and no substantial injustice was occasioned thereby. 36.On the fourth and last issue, section 204 of the Penal Code prescribes the maximum penalty for the offence of murder as death. However, following the Supreme Court’s decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR, the mandatory nature of the death sentence was declared unconstitutional, thereby affirming the principle of individualized sentencing and exercise of discretion by the trial court in sentencing. This Court has since emphasized that sentencing must be exercised judiciously, taking into account mitigating factors, the circumstances of the offence, and the principle of proportionality. It is also now settled law, following several authorities by this Court that sentence is a matter that rests entirely in the discretion of the trial court. 37.On appeal, the appellate court will not easily interfere with sentence imposed unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that it might itself not have imposed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist. See Ogola s/o Owoura v Reginum [1954] 21 270. 38.In William Okungu Kittiny v Republic [2018] eKLR, the Court held that trial courts must give reasons for the sentence imposed and must expressly consider the period spent in custody pursuant to section 333(2) of the Criminal Procedure Code. The appellants argued that the sentence imposed was harsh and excessive, and did not take into consideration mitigation proffered or individualized circumstances. The respondent, however, maintained that the sentence was lawful and proportionate given the gravity of the offence. 39.Upon our review of the record, we are satisfied that the trial court exercised sentencing discretion within the confines of law, considered the seriousness of the offence, and imposed a custodial term that was neither unlawful nor disproportionate. The sentence fell within the permissible range of judicial discretion post-Muruatetu decisions, and the trial court was entitled to impose it in light of the aggravating circumstances. This ground is therefore devoid of merit. 40.In the result, we are satisfied that all the grounds of appeal advanced by the appellants are devoid of merit. The conviction was safe, the trial was fair, and the sentence imposed was just. The appeal is accordingly dismissed in its entirety. DATED AND DELIVERED AT KISUMU THIS 12TH DAY OF JUNE, 2026.ASIKE-MAKHANDIA.........................................JUDGE OF APPEALE.C. MWITA.........................................JUDGE OF APPEALB. ONGAYA.........................................JUDGE OF APPEALI certify that this is a true copy of the originalDEPUTY REGISTRAR