https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6136

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT EMBU** **(CORAM: R. MWONGO, J.)** **CRIMINAL APPEAL NO. E031 OF 2025** **STANLEY MWANGANGI NTHIGA alias ‘BLACKIE’........………………...1ST ACCUSED** **SIMON WACHIRA NGARI alias ‘KANGALI’..…...........….....................….2ND ACCUSED** **AMBROSE MUGENDI IRERI…..…………………….………………………..3RD ACCUSED** **JOSIAH WAWERU NTHIGA...…………………………………………….…..4TH ACCUSED** **-VERSUS-** **REPUBLIC …………………………..………………………………..……….. RESPONDENT** **JUDGMENT** **The Charge** 1. The four accused persons were charged with 3 counts of arson and 2 counts of attempted murder. Details were as follows: 1. Count 1: the offence of Arson contrary to section 332(a) of the Penal Code whose particulars were that on 07th October 2021 at Minuri village in Mbeere South subcounty within Embu County, the appellants willfully and unlawfully set fire on a dwelling house and a motor vehicle registration number KBJ 433G make Toyota Corolla valued at Kshs.1.5 million, the property of Faustine Njeru Njoka and Felister Kathi Nganji. 2. Count 2: the offence of Arson contrary to section 332(a) of the Penal Code whose particulars were that on 07th October 2021 at Minuri village in Mbeere South subcounty within Embu County, the appellants willfully and unlawfully set fire on a dwelling house and a motor vehicle registration number KBM 408L make Toyota Probox valued at Kshs.500,000/=, the property of Felister Kathi Nganji. 3. Count 3: the offence of Arson contrary to section 332(a) of the Penal Code whose particulars were that on 07th October 2021 at Minuri village in Mbeere South subcounty within Embu County, the appellants willfully and unlawfully set fire on a motor cycle registration number KMFQ 715M make Dayun valued at Kshs.120,000/=, the property of Aluan Nditu Muchiri. 4. Count 4: attempted murder contrary to section 220(a) of the Penal Code whose particulars were that on 07th October 2021 at Minuri village in Mbeere South subcounty within Embu County, the appellants jointly attempted to cause the death of Jecinta Kiura Njeru by inflicting her actual bodily harm. 5. Count 5: attempted murder contrary to section 220(a) of the Penal Code whose particulars were that on 07th October 2021 at Minuri village in Mbeere South subcounty within Embu County, the appellants jointly attempted to cause the death of Felister Kathi Nganji by inflicting her actual bodily harm 2. The accused persons pleaded not guilty and a plea of not guilty was duly entered for each of them. The matter proceeded to hearing and the Prosecution called 12 witnesses in support of its case. The trial court convicted all the accused persons on counts 1,2,4 and 5. On 18/11/2024 they were each sentenced to 10 years imprisonment on each of the 4 counts, the sentenced running consecutively. **Petition of Appeal** 1. Being dissatisfied with the decision of the trial court on both conviction and sentence, the appellants filed a petition of appeal dated 07th May 2025 seeking orders that the trial court’s findings on conviction and sentence be set aside and the appellant be set free. The appeal is premised on grounds that: 1. That the Learned Trial Magistrate failed to appreciate the inconsistences in the evidence tendered which should have been in favour of the Accused Persons; 2. That the trial Magistrate failed and erred in not taking into consideration that there was no unison and convergence of actions by the Accused Persons hence no commission of the offences they were convicted of; 3. That the trial Magistrate erred in law and fact by not considering that there was no direct and specific evidence linking the Accused Persons the alleged offences; 4. That the conviction and sentence was irregular and bad in law; 5. That the conviction having been irregular the sentence was highly irregular in law as it was pronounced as to be served consecutively for each count; and 6. That the trial Magistrate erred in law and fact in convicting and sentencing the Appellants against the totality of evidence tendered during the trial and the sentence pronounced thereon. **The Evidence in the trial Court** 1. The evidence adduced during the trial was as follows: 2. PW1 was Felister Kathi Nganji who stated that she had gone to the farm with 6 workers in the morning on the day of the incident. After work at about noon, she went to her brother’s home and while there, she saw a big crowd of people along the road close to the home. After about 30 minutes, the crowd started coming towards her brother’s gate shouting. Her brother went to the gate and told them if they had issues, they should enter the compound so that they discuss. Her brother recognized the 1st accused whom he called ‘Blackie’. Soon, the crowd broke through the gate and entered the compound where they started assaulting people. She stated that someone pelted her with a stone. 3. She ran and hid by the kitchen door and she heard someone asking whether the petrol had been brought. She was attacked by the mob and she could identify the 2nd accused person who joined others in beating her up until she broke her hand. The 4th accused told her to open the house to let a child out because the house was on fire, she opened the house and her brother and a child came out. The mob lunged at her brother while armed with bows and arrows and they assaulted him mercilessly. She escaped and entered into the main house where she heard her brother’s wife being assaulted. 4. Her house was also set on fire by the mob and she had to escape through a window. Eunice came out of the latrine where she was hiding and she helped them. She stated that she had sustained a cut wound on her face and it was inflicted by a certain lady. She was rescued by Serah Nyaguthii and a motor cyclist who took her to Siakago Hospital. The incident was reported at Siakago Police Station. she was later treated at Embu where she had her hand put in a cast. She received further treatment in Nairobi. She produced medical records among other evidence. 5. On cross-examination, she stated that in her statement to the police she gave the names of her attackers. She knew the 1st accused who personally attacked her by kicking her and she got to know the names of the others afterwards. She denied that there were other people living on her brother’s land who could have been her attackers. She stated that her brother had faced criminal charges before in a case where he was accused of cutting trees. 6. When her brother spoke to the crowd, she was close enough to hear what transpired. She also stated that her motor vehicle registration number KBM 418L was torched during the attack. She did not see who put the house on fire. she denied having testified against the 2nd accused in a different case, and that even if she had done so, it was not a justification for the attacks on her and doing what they did. 7. PW2 was Jacinta Kiura Njeru who stated that she knew the accused persons as their neighbours. On the day of the incident, she was at home with her husband and grandson when a crowd approached their home. Her husband went outside and told the crowd that if they had any problem with him, they should go to court. The crowd, led by the 1st accused, pushed their way to into the compound and set their house on fire. Her grandson was crying and PW1 opened the door to let them out. The crowd took her husband away towards the farm. The people attacked her and the 2nd accused struck her on the knee with a stick, causing her to fall down. She hid in a thicket far from the home. 8. Later, she met someone on the road and asked them to call her husband although he was unreachable. News of the incident spread and a neighbor came and removed her from the scene and took her to the hospital. After treatment, the matter was reported at the police station. She stated that when she left the homestead, she had left the house burning. Fire had also been set upon their vehicle and PW1’s motor vehicle. On cross-examination, she stated that the accused persons were neighbours but they related poorly with them. That there was a land dispute between them and her late husband. She stated that when the crowd entered the homestead, she, her husband and grandson hid inside the house and when the house was set on fire, it had been locked from outside. 9. When PW1 opened the house for them to get out, it was because the child was crying inside the house. That she was hit with a stick once she got out of the house and that is when she decided to run away. She could not identify the motor vehicle as hers to the police because the logbook was burnt alongside everything else in the house. The police later visited the scene and assessed the damage caused. They had differed with the accused persons because their fathers had land disputes with them. 10. PW3 was Julius Munene Ngari who stated that earlier that day, he was working on PW1’s farm and afterwards, they went for lunch at the home of her brother, Faustino Njeru. They saw a crowd of people gathering and breaching the fence in order to access the homestead. Faustino went and told them if there was an issue, they could talk about it but they forced entry into the compound. At that point, he and the other workers who were at PW1’s farm earlier, left and went to hide in a thicket near the home. 11. From where he was hiding, he saw smoke and he noticed that the houses and vehicles in the compound had been set ablaze although he did not know who started the fires. On cross-examination, he stated that when the assailants made their way into the compound, they asked for the people who were working on the farm earlier, and that is when he ran away. The thicket where he hid was about 500-600 meters from the homestead. 12. PW4 was Elizaphan Elias Nthiga a brother to the late Faustino. He stated that his uncle Norman Nyaga called to tell him that his brother’s home had been burned down. He informed his sister Judith and then he reported the matter at Kiritiri Police Station. He heard that his brother had also been burnt but he did not see the body at the time since his role was limited to reporting the incident at the police station. On cross-examination, he stated that he was aware of a land dispute between his brother and some neighbours. 13. PW5 was ADM, a minor aged 13 years and grandson of PW2. He stated that on the day of the incident, he was at his grandparents’ home with them and PW1, and 6 other men whose names he did not know. He saw a group of about 30-40 people at the gate and they were armed with *pangas* and *rungus*, demanding that the gate be opened. The people forced their way into the homestead and began attacking them. Him, his grandfather and PW2 locked themselves inside the house but the people set it on fire. His grandparents tried to put out the fire to no avail and smoke accumulated inside and as they started chocking, he started screaming for help. 14. PW1 helped to let them out of the house, and the men took his grandfather away. Their attackers told him that they were not interested in him. He stated that while they were still hiding inside the house, his grandfather was pleading with one of the men called Blackie but the man did not listen. His grandfather called the police. He did not know any of the accused persons before the day of the incident. He stated that the motor vehicles that were outside the house were also burned down. Later, he was informed that his grandfather had been killed. 15. On cross-examination, he stated that the crowd came when they were having afternoon tea outside house, and PW2 instructed him to enter the house. That the 6 men who were with them that day were not part of the crowd that forced entry into the home. That when they were hiding inside the house, they saw the burning cars through the window. When they left the burning house, they all ran in different directions. He stated that when his grandfather called the police, they did not come and he continued shouting for help. 16. It was his evidence that when he left the house, he hid behind a pile of wood not too far from the house. That he is not sure about the complexions of the men who attacked them and that they were threatening them while throwing stones at them. That the attackers were moving in an orderly manner and it appeared that the man at the front was their leader, whom his grandfather was addressing. 17. PW6 was Augustino Ngari, a farmer and bodaboda operator. He stated that on the day of the incident, he had gone to look for work at the home of Faustino. When he arrived, he found that the work had already been completed by other people and so he went away. While on his way back, he met a crowd of people walking towards Faustino’s home with *jembes, pangas* and metal bars. He tried to call Faustino in order to alert him but his phone was off and so he went on his way. After sometime, he heard screaming from the home of Faustino and he turned to go there when he saw smoke. Thus, he retreated out of fear. 18. He said that from the crowd he had met earlier, he recognized the accused persons as they were going to the home of Faustino and he confirmed seeing the 1st accused. He did not recall seeing the 2nd accused but he knew that they all hailed from the area. In cross-examination, he stated that the road where he met the crowd is a public road. That he has appeared before court before in a case where the 1st accused person was accused of assaulting him. He reported the matter at the police station 2 days later. 19. PW7 was Patrick Kariuki Nditu a friend of Faustino. He stated that he knew the late Faustino and his wife PW2. On the day of the incident, Faustino called him to go to his home to collect livestock feed. When he arrived there, he found Faustino with his family and his sister and 6 other people and he joined them for a cup of tea. Soon, a crowd came to the gate shouting ‘*mtahama hapa, hamtaishi hapa*’ (you will move out of here, you will not live here). Faustino engaged the person leading the crowd known as Blackie, the 1st accused, and then they turned to walk away. While he was walking away, he was hit with a panga on his back and so he ran away from the scene. He called 999 twice and the recipient promised that action would be taken. He stated that his motor cycle, water tank and car were burned during the fracas. He recorded his statement at Kiritiri Police Station. In cross-examination, he stated that his motor cycle did not have a number plate because it had not been issued yet. That all along, Faustino was pleading with the 1st accused not to cause trouble but he would not listen. That he ran away when he saw that PW2 had been cut with a panga on the forehead. 20. PW8 was IP Sarah Bokosh who produced 15 photographs of the scene. She also produced a certificate of photographic evidence. On cross-examination, she stated that the registration of the Toyota Probox vehicle is visible in the photos but the registration numbers of the other motor vehicle and the motor cycle are not visible. 21. PW9 was John Mwangi a Clinician at Mbeere District Hospital. He produced a P3 form for Felista Kathi who had suffered injuries from an assault. He observed that Felista had a fresh cut wound extending from the parietal region to the left side of the head; a fresh cut wound on the left hand above the elbow joint; a fracture on the radius; fresh burns on the left hand; and burns on the right hand around the elbow joint. The patient was treated and plaster of Paris was placed on her hands. 22. He also produced a P3 form for Jacinta Kiura who was treated by Humphrey Ndwiga, his colleague at the Hospital. This patient had a deep cut wound on the left hand; bruises on the face; a deep cut on the right hand between the index finger and thumb; burns on both hands and legs; and a deep cut wound on the head/scalp. This patient was examined 15 days after the incident. In cross-examination, he stated that he did not examine Jacinta but he produced a report by the examining doctor who had left the country but he did not include this in his remarks. He worked with his colleague for 1 year. 23. PW10 was Josphat Nyaga Mukembo, senior chief of Mbita location. On the day of the incident, he was attending a funeral when he received a call from Faustino telling him that his home had been invaded and he was in trouble. Since he was in the company of his colleagues in the local administration and the police, they went and reported the matter at Kiritiri Police Station and obtained an OB number. By the time they arrived at the scene, there was nobody there. 24. One Murimi Kariuki explained what had transpired there and led them to the place where Faustino was burning under a pile of dry maize stalks and the fire was still burning. The fire was extinguished and the DCC Mbeere South took up the matter for investigations. At the scene there were 2 semi-permanent houses and one permanent house. While at the scene, someone volunteered to take them to a miraa farm where miraa belonging to James Njeru had been cut. James Njeru said that they had been attacked by people from the neighboring village and they tied him up before cutting his miraa. 25. The attackers had gone and destroyed the home of another person. That the same group of attackers proceeded to the home of Faustino where they burned his home and set him on fire to death. The 4 accused persons were part of the group of attackers that was causing havoc in the neighborhood. In cross-examination, he stated that the report at the police station was made by the Assistant Chief. When the local administration and police visited the scene, he led the way because he knew the place. His participation at the scene was limited to observation and not investigation. 26. PW11 was Eunice Maitha Kiuthu who stated that she was the one who prepared tea at Faustino’s home on that fateful day. That PW1 had joined Faustino and his wife PW2 for a cup of tea after their work at her farm. She saw people at the gate as she stood outside the kitchen. Faustino went to talk to them and the people at the gate demanded to see the men who were working on the farms earlier. The people at the gate forced their way into the compound and they chased the workers away. 27. She saw the people assaulting PW1 and she hid inside a latrine from where she could not see clearly but she could not identify anyone given the limited space in the latrine. From inside the latrine, she heard someone shouting asking the 1st appellant for petrol so that they could light the fire. She remained in the latrine until the police arrived and began investigating the matter. The police escorted her out of the compound and she saw the burned body of Faustino in the farm. On cross-examination, she stated that she did not know why the crowd at the gate demanded for the workers who were with PW1 at the farm earlier. That the crowd was made up of about 30-40 people. 28. PW12 was Joseph Ngari of DCI Mbeere South. He stated that the Assistant Chief brought reported the incident at Kiritiri Police Station. The police visited the scene where they found 2 houses, a motor vehicle and motor cycle on fire. 50 meters from the burning houses, there was a body of a man burning. By the time they called for help from the fire brigade that extinguished the fires, everything had been burnt completely. The body of the deceased was removed to Embu Level 5 Hospital mortuary. 29. From the investigations, it was established that PW1 had found some structures illegally on her land, and so she had taken 6 workers to pull them down that day before going to her brother’s home for tea. Shortly after her arrival, the crowd of people went to the home of Faustino, attacked them and burned everything down. PW1 and PW2 were injured from the attack and Faustino was burned to death. 7 people were arrested in connection with the offences but only 4 were approved for prosecution by the ODPP. 30. He obtained copies of the motor vehicle records for the vehicles that were burned during the incident. Upon cross-examination, he stated that PW1 stated that motor vehicle KBM 408L had been sold to her but it was yet to be transferred to her name. The transaction documents were burned in her house so she could not produce them as evidence. When the police arrived at the scene, there was nobody but the people started gathering again after their arrival. 31. DW1 was Stanley Mwangangi Nthiga, the 1st appellant. He stated that on the material day, he went to the marketplace at 8am and returned home at 11am. He then returned to the market where he stayed until 11.30am and returned home to sleep until 5pm when he went to purchase maize for reselling. One Meme passed by his home to tell him that he was going to the home of Faustino which was invaded by some people. On cross-examination, he stated that he had a witness, Pilton Muriithi, to confirm his alibi. That the home which was invaded is 12km from his home. That his nickname is ‘Blackie’. 32. DW2 was the 2nd appellant, Simon Wachira. He stated that on the material day, he went to look for casual labour; and that he worked between 9am and 1pm, took a lunch break and then carried on working until 5pm. When he returned home, his wife told him that Faustino’s home had been invaded and burned. He denied having anything to do with the incident. On cross-examination, he stated that there was a land dispute between his father and Faustino’s mother but he did not have proof of this dispute. 33. DW3 was Ambrose Mugendi Ireri, the 3rd appellant. He stated that he accompanied Muriuki to the farm and then he went to the market at 9am to sell miraa. He returned home at 11am and slept until 6pm then he woke up and went to the shopping center. While there, he heard of a police crackdown and his wife informed him about the death of Faustino. He did not know the reason for the police operation. He denied the charge against him. Upon cross-examination, he stated that he was related to Faustino. He did not go to the scene and it is not because he was feeling guilty. 34. DW4 was the 4th appellant, Josiah Waweru Nthiga. He denied being at the scene of crime. He stated that on the day of the incident, he was attending a funeral at Karurumo which is far from his home. After the funeral, he went to Mirori where he met PW6. On that day, he was using a motor cycle that he had hired from Josphat Gitonga at 10am that morning. He stated that he returned home, untethered his cow and carried on with the evening. On cross-examination, he denied having fought with Faustino, and that the matter ended up in court. He said that he was wrongly implicated in the case. 35. DW5 was Pitson Muriithi Ngugi, DW1’s nephew, who stated that between 8am and 10am, he was at work with DW1. Afterwards, they returned home. Sometime between 4.30pm and 5pm, they left home to run some errands. He denied hearing of DW1’s involvement. Upon cross-examination, he stated that he helps DW1 with work for a pay of Kshs.200-300/=. At about 5pm when they left home, they were in the company of Benson Kithenya. He does not live far from DW1 and the place is also not far from the home of Faustino, whom he did not know personally. 36. DW6 was Fred Mwangangi who stated that on the day of the incident, he was working at the home of DW1 when DW1 returned from the market at around midday and slept. That he awoke at 3pm and joined him for work until 5pm. That they then went on other errands until 8pm when they returned home. It was after they returned home with DW5 that they heard about the incident at Faustino’s home. In cross-examination, he stated that he saw DW1 go to sleep as soon as he arrived home after work. He learned of the arrest of DW1 the following day. 37. DW7 was Peterson Munene Njiru who stated that DW2 works for him. On the material day, DW2 took the cows to graze at 6am and when he returned, he spent the rest of the day ploughing the farm. At 5pm, he took the bulls to graze and returned at 9pm when he left for the day. He heard about the incident the following day. On cross-examination, he stated that DW2 is his father’s employee who has worked for them many times. That he heard of DW2’s arrest through his father. 38. DW8 was Duncan Kariuki Ita. He stated that on the material day he worked with DW3 plucking miraa from 6am to 9am and then they went to the market until 11am. They then parted ways but he did not know where DW3’s home was. On cross-examination, he stated that he met DW3 at 5am that morning and they parted ways at 11am. He could not account for DW3’s whereabouts after they parted ways. 39. DW9 was Josphat Gitonga who stated that the DW4 borrowed his motor cycle that day so that he could use it to go to Karurumo for a funeral. DW4 returned the motor cycle sometime between 7.30pm- 8pm and they briefly spoke about the incident at Faustino’s home. On cross-examination, he stated that he lent to the motor cycle to DW4 for free because he was a friend. He could not tell whether DW4 indeed attended the burial. **Parties’ Submissions on the Appeal** 1. The appellants jointly submitted that PW1 said that she was cut on her face by a lady from the crowd yet none of the appellants was female. They contended that the evidence, did not disclose any common intention to commit the offences and that the trial court totally disregarded the alibi evidence. The 1st appellant stated that he was implicated simply because he was of an extremely dark complexion and that is not enough to convict him. They denied the allegations that they had attempted to kill PW1 and PW2 because from the P3 forms there is no indication that the injuries were an attempt of their lives. 2. It was their case that there is no direct evidence linking the appellants to the offences and that circumstantial evidence cannot stand in the face of alibi evidence. They vehemently denied their implication for the arson charges and stated that the convictions were unsafe given the evidence. On the question of the sentences imposed, they argued that the same were applied erroneously and that the court ought to have ordered that the same do run concurrently since the offences occurred within the same transaction. They relied on the cases of **Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR)** and **David v Republic [2024] KEHC 16674 (KLR)**. 3. The respondent relied on section 332(a) of the Penal Code and the cases of **Arthur Muya Muriuki v Republic [2015] KEHC 807 (KLR)** and **Republic v Emmanuel Wekesa Makokha [2017] KEHC 7168 (KLR)** and submitted that the offence of arson was proved through circumstantial evidence. That the trial court was correct in convicting the appellants through circumstantial evidence. For counts 4 and 5, it relied on section 220 of the Penal Code and the case of **Abdi Ali Bare v Republic [2015] KECA 794 (KLR)**. It argued that the evidence adduced created strong chain of circumstantial evidence to sustain a conviction. Reliance was placed on the case of MTG v Republic [2022] KEHC 16212 (KLR). On the question of sentencing, it relied on the case of Bernard Kimani Gacheru V Republic [2002] KECA 94 (KLR) and stated that the appellants have not attempted to challenge the trial court’s findings on sentence. It prayed that the appeal be dismissed. **Issues for Determination** 1. The issues for determination are: 1. Whether the trial court erred in its findings on conviction; and 2. Whether the sentences imposed are harsh and excessive. **Analysis and Determination** 1. The role of the first appellate court on an appeal is to review the entire evidence at trial and reach its own conclusions. This was held by the Court of Appeal in the case of **Okeno v. Republic [1972] EA 32**. I agree with the court when it stated: “***An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion. It must make its own finding and draw its own conclusions only then can it decide whether the magistrate’s finding 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***.” 1. From the charge sheet, 2 classes of offences are disclosed; arson and attempted murder. The offence of arson is provided for under section 332(a) of the Penal Code as follows: **“Any person who willfully and unlawfully sets fire to:** **(a) Any building or structure whatever, whether completed or not... is guilty of a felony and is liable to imprisonment for life.”** 1. From the evidence adduced by the prosecution, the accused persons hail from the same neighborhood as the late Faustino, whose home was torched. It is noted that the appellants herein were convicted through the court’s judgment published as **Republic v Nthiga alias ‘Blackie’ & 3 others [2024] KEHC 16266 (KLR)** for the death of one Faustino Njeru Njoka. They were sentenced through a sentence judgment published as **Republic v Nthiga alias ‘Blackie’ & 3 others [2025] KEHC 11331 (KLR)**. 2. It was the testimony of PW1, PW2 and PW3 that as they were having tea outside the house, a crowd came to the gate and Faustino went to speak to them urging them to reason. That the crowd breached the fence, regardless, and entered the homestead. On seeing this, PW2 instructed his grandson PW5 to go into the house and then she and Faustino went and locked themselves inside the house. From the window, Faustino tried to negotiate with Blackie not to escalate issues but to no avail. They saw the house burning while they were inside it and they started screaming for help. PW5 stated that PW1 is the one who opened the door for them to get out of the house. PW1 and PW11 stated that they heard someone calling for petrol so as to light a fire. 3. In determining whether the appellants were the arsonists, it is essential that the evidence places them at the scene. PW1, PW2, PW3, PW4 and PW5 all saw and heard Faustino talking to the 1st accused addressing him as Blackie. He is the one who was leading the crowd. PW1 stated that she heard someone asking whether the petrol had been brought. PW11 was hiding inside the latrine during the incident when she heard someone asking whether the petrol had been brought. She stated that due to the limited space inside the latrine, she was not able to see much of what was happening outside. She could not identify anyone from therein. 4. The prosecution witnesses saw the crowd of people being led by the 1st appellant. The incident occurred between midday and 1pm or thereabouts. There was nothing to inhibit their view in the daylight. PW2 stated she was hit by the 2nd appellant and she sustained injuries. In their defenses, all the appellants denied being anywhere near the scene. In fact, they all raised alibi defenses. 5. DW1 stated that he was at the market and he returned home at 11 am on the day of the incident. After that, he slept until 3pm. DW5 and DW6 stated that they spent the day with DW1 until 11am and then he went home to sleep until 3pm. These witnesses could not account for the whereabouts of DW1 between noon and 2pm that day. 6. The same goes for DW2 who stated that he was working between 9am and 1pm before he took a lunch break. After this alleged break, he allegedly returned to work until evening. DW7, his boss stated that on that day, DW2 was working on the farm the home day until 9pm when he went home. The activities of DW2 during his lunch break are unknown and they do not expressly remove him from the scene. 7. DW3 said that he was selling miraa between 9am and 11am after which he went home and like DW1, slept but for longer. He said he then visited the shopping center and that is where he learned about the incident as there was a police operation in the area. DW8 stated that he had met with DW3 early that morning at 5am, they plucked miraa and went to the market where they stayed until 11am at which time they parted ways. He could not account for the whereabouts of DW3 after they parted ways. 8. DW4 stated that he borrowed DW9’s motor cycle to enable him attend a funeral at Karurumo which is far from the area where the incident occurred. DW9 confirmed that DW3 borrowed his motor cycle, but he was not sure whether he travelled to Karurumo to attend the funeral. 9. From this evidence, there is no direct evidence proving that the appellants started the fire on the homes or the motor vehicles. However, where direct evidence fails, there is need to explore circumstantial evidence, albeit with due caution. In the case of **Sawe v Republic [2003] KECA 182 (KLR)**, the Court of Appeal stated as follows on circumstantial evidence: ‘‘***In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remains with the prosecution. It is a burden which never shifts to the party accused***.” 1. Additionally, in the case of **Ahamad Abolfathi Mohammed & another v Republic [2018] KECA 743 (KLR)**, the 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***.’” 1. In the present case, the defenses by the appellants failed to displace the prosecution’s case which places all the appellants within the crowd at the time of the incident. The crowd comprised of about 30-40 people that day but only 4 people were arrested and charged. Even though the 3rd and 4th appellants were not expressly mentioned, their defenses of alibi also failed to remove them from the scene where a large group of people were involved in perpetrating several offences. They were placed as part of the crowd of people which invaded the home of Faustino, beat up the residents, burned their houses and properties and burned Faustino to death. The 1st complainant, PW1 stated that the 1st appellant led the crowd and he participated in beating her up. 2. I have carefully read the trial court’s judgment. The learned Magistrate correctly noted that none of the accused persons suggested an alibi during the cross examination of the prosecution witnesses. Instead, the alibi was hoisted for the first time when they were placed on their defence, and not, at the earliest opportunity as required by law. The learned magistrate also questioned the credibility of the accuseds’ evidence. He referred to the cases of **Orata v R [2023] KEHC 21972 (KLR), R V Sukhasingh c/o Wazir Singh & Ors (1939) 6 EACA 14** and **Festo Androa Asenwa v Uganda Cr App No.1 of 1998,** on the defence of alibi, and the importance of its being raised early. On the issue of alibi, I agree with the trial Magistrate, particularly on the manner in which he demonstrated that the alibis were inconsistent and an afterthought. 3. The evidence was that the 4 appellants alongside other people bore the common intention of entering the home of Faustino to commit the offences committed. Even though not all of the alleged perpetrators were arrested and charged, criminal liability can be imputed individually upon each of the ones arrested who were a part of the larger crowd. Section 21 of the Penal Code provides: “***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 offence 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 offence***.” 1. On the offences of arson, it is clear that someone or people who was or were part of the crowd that bore the intention (*mens rea*) to commit the offences, actually started the fires to the houses and the cars in Faustino’s home (*actus reus*). These same people within the same group bearing a common intention, beat up PW1 and PW2 who are the complainants here, making an attempt on their lives. 2. The offence of attempted murder is provided for under section 220(a) of the Penal Code, thus: “***Any person who -*** ***(a) attempts unlawfully to cause the death of another; or*** ***(b) ………..,*** ***is guilty of a felony and is liable to imprisonment for life***.” 1. An attempted offence is one which is a precursor to the actual offence. Thus, that if the actions of a person accused of an attempted offense were to progress, they would end up with the commission of the actual offence. In this case, it means that if the actions put in motion had progressed, they would have resulted in murder. In proving an attempted offence, the court has to establish that the aggressor was identified and he possessed *mens rea* to do the unlawful act, which he did. 2. In the case of **Moses Kabue Karuoya v Republic [2016] KEHC 2729 (KLR)**the court held: “***In the case of Bernard Kariuki Chege v Republic [2016] KEHC 3200 (KLR) this court had the occasion to address its mind and to define in detail ingredients of incomplete offences also described as inchoate offences. Inchoate crimes are incomplete crimes which must be connected to a substantive crime to obtain a conviction. Examples of inchoate crimes are criminal conspiracy, criminal solicitation, and attempt to commit a crime, when the crime has not been completed. It refers to the act of preparing for or seeking to commit another crime. An inchoate offense requires that the accused have the specific intent to commit the underlying crime. An inchoate crime may be found when the substantive crime failed due to arrest, impossibility, or an accident preventing the crime from taking place. Strictly inchoate crimes are a unique class of criminal offences in the sense that they criminalize acts that precede harmful conduct but do not necessarily inflict harmful consequences in and of themselves***…” 1. An inchoate or attempted offence is defined under Section 388 of the Penal Code as follows: “***(1) When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.*** ***(2) It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.*** ***(3) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence***.” 1. As stated hereinbefore, the appellants were within a crowd. The members of that crowd bore the common intention of entering Faustino’s home to cause harm. PW2 testified that she was hiding inside their house with Faustino and her grandson, PW5, when the house was set on fire. That Faustino, through the window, tried to negotiate with the 1st appellant not to harm them but he would not listen. The house was set ablaze by some people in the crowd whilst PW2, Faustino, and the grandchild were all still in it. The only reason that they were let out is because PW5, a minor was crying from inside the house and the 1st appellant commanded PW1 to open the door for them to get out. 2. Once they got out, PW2 was beaten and Faustino was burned to death. PW1 testified that she was beaten by several members of the crowd even before the house and vehicles were set on fire. All these actions prove an intention to attempt to kill the complainants, but that such attempts were either cut off or they failed. The action of setting a house on fire knowing that there were occupants therein is a direct demonstration of an attempt to murder the occupants who had no other way of escaping. 3. The appellants complained that the prosecution’s evidence was full of contradictions. 4. There were no substantial glaring contradictions that I have seen and if the appellants found any, they do not change the prosecution’s evidence implicating the appellants. Contradictions in evidence were addressed in the case of ***Munene v Republic [2018] KECA 186 (KLR)*** where the court stated: “***It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it***.” *[Emphasis added]* 1. As to whether the sentence imposed by the court was harsh, for the offences of attempted murder, the Penal Code prescribes imprisonment for life. However, in this case, the trial court sentenced the appellants to only 10 years on each of the counts. For the arson charges, the trial court also sentenced the appellants to 10 years on each count, departing from the prescribed sentence of imprisonment for life. The trial court ordered that the sentences run consecutively. 2. The decision to order sentences to run concurrently or consecutively is made at the discretion of the trial court depending on the circumstances of the case. In the case of **Marsack v Republic [2025] KEHC 6807 (KLR)** the court stated: “***Similarly, in Sawedi Mukasa s/o Abdulla Aligwaisa [1946] 13 EACA 97, the Court of Appeal for Eastern Africa considered the issue of a consecutive as opposed to a concurrent sentence and expressed the view that it was still good practice to impose concurrent sentences where a person commits more than one offence at the same time and in the same transaction save in very exceptional circumstances***.” *[Emphasis added]* 1. The trial court considered the exceptional circumstances of this case in which, through the same transaction, the appellants committed very serious offences carrying life imprisonment sentences. Considering these circumstances, the sentences imposed by the trial court, which has already exercised its discretion in the matter, to mete lenient sentences are noted. Accordingly, these sentences are lawful and commensurate with the offences committed. **Disposition** 1. For all the foregoing reasons, I hold that the findings of the trial court on conviction and sentence are lawful and are hereby upheld. The appeal is hereby dismissed in its entirety. 2. Orders accordingly. **Delivered, dated and signed at Embu High Court this 6th day of May, 2026.** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **R. MWONGO** **JUDGE** **Delivered in the presence of:** 1. All Accused Persons present in Court 2. Ngari for Accused 1 - 4 3. Ms. Mwaniki for the Respondent 4. Francis Munyao - Court Assistant