https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1163

Joshua v Republic (Criminal Appeal E008 of 2022) [2026] KECA 1163 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1163 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E008 of 2022 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA June 12, 2026 Between Brian Magena Joshua Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Kisii (Ougo, J.) dated 29th November, 2021 in HCCRC No. 7 of 2021) Judgment 1.The appellant was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence were that on 18th January 2021 at Nyangine Village, Giasaiga Sub-Location in Sameta Sub-County within Kisii County, the appellant murdered Kevin Mageto Ondieki. He denied the information. 2.The prosecution called six witnesses during the trial. Martha Mongina (PW1) stated that the appellant was her co-wife’s grandson and the deceased was her grandson. She narrated how on 18th January, 2021 at 7.00 am, she went to call the deceased from the place he was because his father had sent money for him to be taken to school. She saw the deceased entering his house followed by the appellant and then heard the two quarrelling. When she called out to the deceased, informing him she was there to take him to school, he came out of the house. The appellant followed the deceased outside and informed her that he wanted to beat the deceased because he had stolen a torch from the appellant’s place. The appellant went on to hold and beat the deceased amidst her pleas to stop beating him. PW1 recounted that the deceased then screamed that the appellant had stabbed him with a knife and asked her for help. She shouted for help as she was afraid the appellant would also stab her if she assisted the deceased. She did not see the knife. She further testified that Magati (PW2) responded to the alarm raised and went to the place where the two were fighting. She recalled seeing blood all over the deceased’s body and staying until the police arrived. She noted that the deceased had been stabbed four times at the back twice, the neck and waist areas. 3.Geoffrey Mbaka Magati (PW2) identified the appellant and deceased as his cousins. He testified that he responded to screams by his grandmother (PW1) on 18th January, 2021 at 7.30 am and found her standing outside the compound’s fence. He went into the compound and found the appellant stepping on the deceased who was on the ground. The appellant had stepped on the deceased’s neck with his right foot and had put on gumboots, a short-sleeved checked shirt and brownish jeans. PW2 recounted that the appellant was asking the deceased why he had uprooted the trees the appellant had planted and why he had stolen his torch. When he pulled the appellant away from the deceased, he noticed the deceased was not in good condition and had problems breathing. He also noticed blood all over the body of the deceased, who had worn blue jeans, a blue t-shirt and a grey jacket. PW2 further testified that together with one Oyugi Samwel (PW3), they tried to carry the deceased to a vehicle about 70 meters from the place he died. He did not see the weapon the appellant had. He saw a stab wound on the left side of the deceased’s neck and body. He called Linet the Sub-Chief, who came and confirmed the death of the deceased and called the police. 4.Samwel Oyugi Kangwana (PW3) stated that both the appellant and the deceased are his nephews and that the appellant’s mother is his cousin. He testified that on the morning of 18th January, 2021, he had gone to charge his phone when he heard screams nearby. He went and found PW1 and one Keziah screaming and crying in Ekegusii that the appellant had killed the deceased. He then went into the compound and saw the deceased lying face up and did not find the appellant at the scene. PW2 asked them to assist in carrying the deceased to the car. He further testified that the deceased was bleeding on the left side of his neck. Together with PW2 and Jared, they tried to carry the deceased from the spot but heard people say he had died and thus put him down. He was present when the police collected the deceased’s body. 5.William Jomo Tinega (PW4) stated that the deceased was his brother’s son. He testified that they attended the postmortem and identified the body of the deceased to Dr. Ayara (PW5) at the Kisii Referral Hospital Mortuary. A police officer was also present during the postmortem. He saw three knife openings at the neck, stomach and leg of the deceased’s left side during the postmortem. 6.Ochieng Brian Ayara (PW5), a pathologist working for Kisii County, testified that he conducted a postmortem on the remains of the deceased on 27th January, 2021. His opinion was that the cause of death was left hemothorax due to penetrating chest wall injury due to a stab wound. He confirmed that the deceased’s body was identified by the deceased’s father (Ezekiel Ondieki Tinega) and the uncle (PW4). 7.Abdi Kadir Bakate Chote (PW6) testified that together with CPL Okumu, who is deceased, they were on duty at Sameta on 18th January, 2021 at 10.30 am. They were assigned and proceeded to the murder scene at Giasaiga Sub-Location with a team of police officers. Upon arrival, they were directed to where the body of a juvenile was lying and conducted investigations by asking questions to those at the scene. He recalled that according to information from PW1 and PW2, there had been a confrontation between the deceased and the appellant inside the house. As the deceased tried to run away, the appellant followed him and stabbed him with a knife from behind on the neck on the left side and on the lower rib. He confirmed that both he and Okumu investigated the matter, took photos of the scene, and listed the names of the witnesses. They both also attended the postmortem. He further testified that he processed the said photographs, which were certified by the crime scene personnel as an exhibit. With the approval of opposing counsel, Miss Nduhukire, PW6 produced the certificate prepared by John Ngeno of CSI Kisii, who was at the time at the police college for promotional training. According to PW6, the appellant was at large with the murder weapon until 28.01.2021, when they were informed that he was at Kisii Central Police Station. They interrogated the appellant and took him to court the next day. 8.The appellant was then put on his defence. His sworn testimony was that he was arrested from school on 28th January, 2021, booked at Kisii Police Station and taken to court the next day. He was later charged with murder. He denied killing the deceased and knowing him and further denied knowing PW1 and PW2. 9.The trial court evaluated the evidence and found that the prosecution had proved all the ingredients of murder beyond reasonable doubt. The court found that the appellant had been positively identified as the perpetrator of the unlawful act that caused the death of the deceased. The court also concluded that malice aforethought was proved. In the end, the trial court found the appellant guilty of the offence of murder and convicted him accordingly. The appellant was then sentenced to 15 years imprisonment. 10.Aggrieved and dissatisfied with this decision, the appellant preferred an appeal to this Court. He prays that the appeal be allowed and that the conviction and sentence by the superior court be quashed and set aside, respectively. The memorandum of appeal dated 12th January, 2026 raises four grounds of appeal as follows, that the trial court erred both in law and fact:1.In finding and or concluding that all the ingredients of the offence of murder had been established by the evidence tendered by the prosecution.2.In failing to consider the defence given by the appellant.3.The judgment is against the weight of the evidence on record and that the4.sentence imposed on the appellant is manifestly harsh and excessive in the circumstances. 11.When this appeal came up for hearing before us on 23rd April 2026, learned counsel Ms. Mawinda appeared for the appellant, while learned prosecuting counsel Mr. Okeyo appeared for the respondent. Both learned counsel relied on their written submissions in arguing and opposing the appeal. Ms. Mawinda highlighted that the period the appellant had been in custody prior to imposition of the sentence had not been taken into account. Mr. Okeyo highlighted that the appellant had been sentenced to 15 years imprisonment which he urged to be lenient but conceded that the same could not be enhanced by this Court because he had not filed and served the relevant notice seeking such enhancement. 12.The appellant’s submissions are dated 12th January 2026. Learned counsel Ms. Mawinda submitted that the trial court concentrated on the aggravating circumstances of the offences and failed to consider the mitigating factors. That this Court should interfere with the appellant’s sentence of 15 years imprisonment meted out by the trial court, as the same is excessive and unreasonably harsh. That the sentence should be set aside and substituted with a shorter prison term, given the appellant’s expressed remorse, readiness for rehabilitation and desire to be reintegrated into society. That the appellant is well- behaved, is currently undergoing carpentry training in prison, and has taken NITA examinations in the said skills. Regarding the review of a sentence by an appellate court, the appellant cited the cases of Ogola s/o Owoura vs. Reginum (1954) 21 270 and Wanjema vs. R. (1971) E.A. 493. 13.Counsel further submitted that the prosecution did not prove its case beyond reasonable doubt. That PW1 and PW2 did not see the appellant holding any weapon, and the prosecution did not produce the murder weapon during the trial. That PW3 did not witness the attack, and neither saw the appellant at the scene nor saw any semblance of the murder weapon. Submitting that the prosecution’s case had inconsistencies, counsel noted that the photos produced by PW6 did not include photos of the scene. That it cannot be ascertained when the photos produced by the prosecution were taken because they were undated. Further, when PW4 was cross-examined, he could not recall the date he wrote his statement. It was thus urged that this Court conduct a thorough and fresh examination of the evidence and carefully weigh conflicting testimonies before arriving at its own independent conclusions as a court sitting on a first appeal. 14.Counsel for the appellant further submitted that courts determine the existence or otherwise of malice aforethought based on the circumstances of each case. The accused person has to have the intent to cause harm or death, or knowledge that an act can cause death or injury. Ms. Mawinda argued that the evidence presented by the prosecution in the trial court did not establish the requisite mens rea on the part of the appellant. She cited the case of Roba Galma Wario v Republic [2015] eKLR in which the Court stated that where malice aforethought is not proved in a charge of murder, the appellant would be guilty of manslaughter because it would mean the death of the deceased during the brawl was not intentional. Counsel further submitted that the appellant disagreed with the deceased, which led to a fight, but that he had no malice aforethought nor intention of causing the death of the deceased. That the appellant not being found at the scene of the incident could not have been the basis for finding that he was responsible for the death of the deceased, as affirmed by the court in Kastelo v Republic [1992] eKLR. 15.It was stated for the appellant that in the case of Francis Muruatetu & another v Republic, Petition Nos. 15 & 16, the Supreme Court of Kenya affirmed the importance of judicial discretion in sentencing and the need for courts to weigh the specific circumstances of both the offender and the offence to ensure a just outcome. Counsel submitted that the probation report showed that the families of the appellant and the deceased had reconciled and that the report recommended probation. This Court was urged to take note of the time the appellant had served and revise the trial court’s sentence owing to the appellant’s good behaviour since his imprisonment. It was further submitted that the trial court failed to comply with the proviso to Section 333(2) of the Criminal Procedure Code which the emphasizes that the period that the accused remained in remand custody as his trial was processed should be taken into account when computing sentence. That consequently, the trial court failed to issue an appropriate order on the date of the commencement of the appellant’s sentence. Ms. Mawinda urged that, should this Court uphold the conviction, it should impose a less severe sentence considering the appellant’s mitigation and the circumstances of the case. A reduction in the sentence to between 5 and 10 years, or to the period already served was proposed. 16.Relying on the respondent’s submissions dated 22nd April, 2026, learned counsel Mr. Okeyo noted that PW1 and PW2 were present when the act of murder took place and when the police collected the body of the deceased. That the postmortem evidence of PW5 established the fact and cause of death of the deceased. Counsel stated that the evidence of PW1 and PW2 also established the second ingredient for the offence of murder, that the appellant committed the unlawful act that led to the death of the deceased. On the third ingredient, counsel submitted that the nature and gravity of the injuries suffered showed that the appellant committed the act with malice aforethought. In addition, the appellant disappeared from the scene, knowing that the deceased had been seriously injured. It was thus urged that the appellant’s conviction should not be disturbed. 17.As regards the sentence, counsel termed the appellant’s sentence of 15 years inappropriate. He noted that the deceased suffered four severe stab injuries for allegedly stealing the appellant's torch. Further, the appellant denied knowing the deceased, PW1 and PW2, all of whom are his relatives. This portrayed a person with no signs of remorse after committing the offence. He urged that the appellant deserves an exemplary punishment. 18.We have considered the respective submissions and the evidence on record. In criminal appeals where the High Court is the trial court such as in the instant murder trial, the Court of Appeal sits as the first appellate court. Our jurisdiction under Article 164 of the Constitution and Section 379 of the Criminal Procedure Code is both fact-finding and legal. This Court is fundamentally empowered and duty-bound to re-evaluate, re- assess, and re-examine the entirety of the evidence on record independently to arrive at its own conclusions. We must remain alert that we did not listen and see the witnesses testify like the trial court. The court has the authority to confirm, reverse, or vary the conviction and sentence. It can acquit the appellant, substitute the conviction for a lesser offense or order a retrial. In Okeno v. Republic [1972] EA 32 the East African Court of Appeal held as follows;“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 to have the appellate court's own decision on the evidence. The appellate court must itself weigh conflicting evidence and draw its own inferences. It is not bound to follow the trial judge's finding of fact if it appears that he has failed to take account of particular circumstances or probabilities…. But it must bear constantly in mind that the trial judge had the advantage of seeing the witnesses face to face and his opinion of their credibility is entitled to great weight.” 19.The issues for determination in this appeal are: whether the ingredients of the offence of murder had been established by the evidence tendered by the prosecution beyond reasonable doubt; and, whether the sentence imposed was manifestly harsh and excessive in the circumstances. 20.On the first issue, we are satisfied that the trial court did not err at all in returning a conviction for the offence of murder. The prosecution established the ingredients of the offence of murder: the fact of death and its cause; the unlawful act or omission that led to the death was committed by the appellant; and, the accused committed the unlawful act or omission with malice aforethought. 21.(Section 203 of the Penal Code states,“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” 22.Section 206 of the Penal Code provides;“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 indifference 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 flight or escape from custody of any person who has committed or attempted to commit a felony.” 23.The record shows that PW1 and PW2 were present when the appellant committed the unlawful act of killing the deceased and both PW1 and PW2 recognized the appellant and the deceased was their relatives. PW5 carried out the postmortem and established that the deceased had suffered four stab injuries, concluding that the cause of the deceased’s death was stab wound on the chest wall due to sharp object. We find that the fact of death and its cause were thereby established beyond reasonable doubt. It was the unlawful action of the appellant that caused the death per evidence of PW1 who saw the appellant stab the deceased and heard the deceased crying as he shouted that the appellant had stabbed him. 24.The unrebutted and truthful evidence by PW1 and PW2 show that the appellant was deliberate in his unlawful and brutal actions of killing the deceased. Despite PW1’s intervention, the appellant did not just actuate his declaration to beat the deceased but as well stabbed the deceased severally. Upon arrival at the scene, PW2 found the appellant stepping on the deceased’s neck and PW2 testified that he observed two stab wounds on the body of the deceased. PW1 and PW2 undisputedly recognized the deceased and the appellant as they them very well being relatives. We are thus satisfied that in the circumstances, the prosecution established malice aforethought beyond any reasonable doubt in terms of section 206 (a) and (b) of the Penal Code. The appellant had an intention to cause the death of or to do grievous harm to the deceased, and, the appellant had knowledge that the stabbing or omission to refrain from beating the deceased would probably cause the death of or grievous harm to the deceased. The appellant’s testimony was an empty denial that did not displace the prosecution’s evidence which established all the ingredients of the offence of murder beyond all reasonable doubt. 25.Accordingly, we uphold the learned trial Court’s finding thus;“20.The accused person stabbed the deceased on the neck and chest. The areas of the body targeted by the accused person were very sensitive and there was no way the deceased would have survived after the injuries. In my view, malice aforethought was proved.” 26.Turning to the sentence, section 204 of the Penal Code states that any person convicted of murder shall be sentenced to death. The trial Court delivered the ruling on sentence dated10.02.2022. The trial court considered the Probation Officer’s report indicating that the families of the deceased and the appellant had reconciled and the recommendation for a lenient sentence of probation. The Court observed that the life of the deceased had been lost as a result of the accused’s unlawful violent act and a non-custodial sentence was not appropriate.The trial Court then imposed against the appellant a sentence of 15 years imprisonment. The trial Court did not state the effective date of the 15 years imprisonment and in terms of Section 333(2) of the Criminal Procedure Code thus;“(2)Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.” 27.The record shows that the appellant was arraigned in court on 10th February 2021 and was in remand custody throughout the trial. Save for the sentence running effective from the arraignment date, the trial Court did not go astray in any material respects in imposing the sentence of 15 years imprisonment, against the appellant. 28.In the premise, we uphold the trial Court’s conviction and the sentence but with a clarification that the sentence shall run effective the appellant’s date of arraignment, 10th February, 2021. 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 original.Deputy Registrar