https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8292

Were v Republic (Criminal Appeal E057 of 2025) [2026] KEHC 8292 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KEHC 8292 (KLR) Republic of Kenya In the High Court at Siaya Criminal Appeal E057 of 2025 DK Kemei, J June 12, 2026 Between Celestine Were Appellant and The Republic Respondent (Being an Appeal from the judgment of the Principal Magistrate Hon. Benjamin Limo dated 4th August, 2025 and sentence dated 17th September, 2025 in Siaya Criminal Case No. E462 of 2023) Judgment 1.The appeal herein arises from the conviction and sentence of Hon B. LIMO (SRM) in SIAYA CMCCR No. E462 of 2023 dated 4/08/2025 and 17/9/2025 wherein he convicted the Appellant for the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code and thereafter sentencing her to serve ten years’ imprisonment. 2.The appellant, being aggrieved and dissatisfied with the aforesaid conviction and sentence, she duly filed her Petition of Appeal dated 29/9/2025 wherein she raised the following grounds of appeal: That the whole conviction was against the weight of evidence adduced as the prosecution did not prove their case beyond reasonable doubt. That the trial court erred in fact by misunderstanding and/or misreading the facts of this case thus ending up with erroneous conclusions. That the trial court failed to consider clear contradictions in the medical evidence. That the trial court erred in law by shifting the burden of proof to the appellant to prove her defence of alibi. That the sentence imposed on the appellant is manifestly harsh and excessive in the circumstances of the case. The Appellant therefore seeks the following orders: That this appeal be allowed. That the conviction of the Subordinate Court be quashed and subsequent sentence be set aside. That the court be pleased to make any other orders as it deems fit to meet the ends of justice. 3.This being the first appellate court, its duty is to re-evaluate the evidence presented to the trial Court and subject it to an independent analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. The court must also take into account the fact that it neither heard nor saw the witnesses and therefore to give due allowance for that. In Okeno – VS – Republic (1972) EA 32, it was held that;“An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the Appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.” 4.The Appellant herein Celestine Atieno had been charged with the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. The particulars of the this offence were that on the 22nd August, 2023 at 0130hrs at Gombe Village, Gombe sub location within South Gem Wagai sub County in Siaya county, jointly with another not before court, unlawfully killed Michael Adede Oyoba. 5.The Appellant denied committing the offence thereby warranting a trial in which the prosecution called a total of seven (7) witnesses in support of its case. The accused was the sole witness for the defence. The evidence tendered before the trial court was as follows; 6.Christine Akinyi (PW1) testified that on 18th July, 2023 she saw the accused person beating the deceased by stepping on his pelvic region and also on his ribs. That the husband of the accused was also beating the deceased using a panga. That after the said incident, the deceased was taken to hospital for medical attention and later the matter was reported to the police. That on the 22nd August, 2023, the deceased died after being bedridden due to the said injuries which were perpetuated by the accused. That the body was taken to the mortuary and then a post mortem was conducted and that the deceased was buried. 7.No. 25xxxx PC Gladys Nashipai (PW2) testified that on the 22.08.2023 at 5:45pm she was informed that the deceased who was a survivor of some assault case that she was investigating had succumbed to the injuries. It was her testimony that she went to the scene and found the deceased lying on the floor. That the scene was processed and the body taken to the mortuary. That the Appellant was arrested but that her husband escaped the arrest. She identified the P3 form 8.Charles Okello (PW3) testified that he was informed that the decased had died and that he went home and found the deceased lying in his bedroom. That he teamed up with family members and took the body to the mortuary and that postmortem was later conducted. That the matter was reported to police. 9.Reymo Aluoch Aoko (PW4) testified that she works at Akala health centre as a clinical officer. That he had P3 form and treatment note of Michael Adede Oyambo as their patient. That the decased had earlier been assaulted by a person known to him on his way home. That the patient claimed that he had been injured on the chest, lower back and was stepped on the left thigh. She stated that from observation, the deceased was in pain, inability to walk well, tenderness in the chest, with no fractures, tenderness of hip joint and reduced muscle power of the left limb. That the patient had inability to control his bowels. The age of injuries was 16 days and that the probable type of weapon was a blunt a blunt object. That the patient was referred to Yala sub county hospital for orthopedic surgeon for surgery. She classified injuries inflicted to the deceased as grievous harm. She produced treatment notes, p3 form and outpatient card dated 01.08.2023 as exhibits. 10.Dr Daniel Wanjohi (PW5) produced a Post mortem form as an exhibit.It was his testimony that he examined the body the deceased and established the cause of death to have been obstructive uropathy with acute urinary retention with post traumatic rib fracture. That there was a fracture of posterior rib number 10 on the left side. That the left kidney was enlarged than the right one. That the bladder was distended with turbid urine suggestive of urinary tract infection and obstructive uropathy. That he formed the opinion that the cause of death was obstructive uropathy with acute urinary retention with post-traumatic rib fracture. 11.Moses (PW6) was a student at Rongo University and who testified that on 18/7/2023 at 6.40 PM he was going home when he saw a crowd of people and that he saw the Appellant herein stepping on the deceased while the deceased was lying down and crying. That the son of the deceased ran to the village elder’s home to report the matter and he later came back and he joined him and went to the police station to report. That he later learnt that the deceased had died. On cross-examination, he was categorical that he saw the Appellant herein stepping on the deceased around the waist. 12.No. 11xxxx Pc Pascal Odongo (PW7) was the investigation officer. It was his testimony that an assault report had been lodged vide OB No. 13/31/7/2023 and which was under investigations. That later on 18/7/2023, the complainant succumbed to the injuries sustained through the assault. That a report was made at Akala police station. That his investigation revealed that the Appellant and deceased had a dispute over a certain tree and that the deceased had sold land to the Appellant. That the deceased had gone to check about cries made by a certain child when he was attacked by the Appellant and her husband. That the Appellant’s husband however managed to escape from the area. That he interviewed the complainant and wrote statements of the witnesses. He produced the statement of the deceased as an exhibit before the court. On cross-examination, he stated inter alia; that the assault took place on 18/7/2023 and that a report was booked on 31/7/2023 while the decased died on 22/8/2023; that the deceased died about one month after recording statement. 13.At the close of prosecution’s case, the trial court ruled that a prima facie case had been made out by the prosecution against the Appellant who was subsequently placed on her defence. The Appellant elected to give a sworn testimony and called one witness. 14.Celestine Atieno Were (DW1), testified that on 18/7/2023, she had gone to Luanda at 6.00 A to sell fruits and remained there until 7.00 PM and arrived home at 8.00 PM. She maintained that she was not at home or the scene when the incident took place. That she knew the deceased who had sold land to her but that she did not have a dispute with the deceased. She maintained that she was not at the scene and was to call a witness to prove her alibi. The Appellant denied committing the alleged offence. 15.Wilber Amatonye Mainchi (DW2) testified that he does business at Luanda Township. That he was with DW1 from 7.00 AM to 7.00 PM and that the Appellant left for her home after the work at the market. 16.The application was canvased by way of written submissions. However, it is only the Appellant who complied. 17.As regards the issue of death, reliance was placed in In Chirchir & another v Republic [20251 KECA 1369 (KLR), where the Court of Appeal held, at paragraph 46, that in an offence of manslaughter, the prosecution must prove all the elements of the offence murder except the element of malice aforethought. In a more clearer manner, Aburili J. held, in Stephen Mulamba Were v Republic [2019] eKLR, held that in an offence of manslaughter, the prosecution must prove beyond reasonable doubt that it is the actions of the accused person that directly led to the death of the deceased.Appellant’s counsel cited the provisions of section 386(2) of the Criminal Procedure Code and section 43 of the National Coroners Service Act that provide that the question of the cause of death of a person can only be determined by a medical doctor of the rank of medical officer. In this case, the cause of death of the deceased was established by Dr. Wanjovu who testified as PW5. In his testimony, PW5 stated as follows:“In external findings on examination, the skin appeared wrinkled over the body. No obvious indicators of recent or long-term trauma on the head, neck, back, chest and extremities. No signs of injury on the body. The left kidney was enlarged than the right kidney. No traumatic changes. The bladder was distended with turbid urine suggestive of urinary tract infection and obstructive uropathy.As a result of my examination, I formed the opinion that the cause of death was obstructive uropathy with acute urinary retention with a post traumatic rib fracture. The age of the fracture is not stated. No external instance can precipitate the urine retention." 18.It was submitted that the conclusion of the trial court, which is captured below, as to the cause of death of the deceased is not supported by the testimony of the doctor."It is clear that the alleged injury on the chest which is alleged to have been meted on the deceased was also the cause of his death... It is now clear that the injury stated by the deceased was able to be established by the doctor who did the post mortem exercise. It now appears that the chest injury the deceased was complaining about was due to the chest fracture (established in the post mortem report) did cause the death of the deceased."It was submitted that from the testimony of PW5 that the cause of the death of the deceased was a urinary tract infection which led to obstructive uropathy with acute urinary retention and enlargement of the kidneys. It was also the doctor's testimony that the said obstructive uropathy which is a natural cause of death as the same could not be caused by any external influence including assault. While the doctor noted that there was an undisplaced rib fracture, he could not ascertain how long the fracture had lasted. This is particularly important since on external observation of the chest, there were no signs of recent or long-term trauma. Finally, it was never the testimony of the doctor that the said undisplaced“The accused person stated to the court that she was not at the scene at the time of this incident. The accused claims that she was at Luanda Trading Center where she does her business. The accused did not bother to avail any documentation i.e. receipts or mpesa statement to show she was away. The charge sheet indicates that the offence occurred at 0130 hrs. It may be possible that she was where she was but at this appointed hour she was at the scene of crime. 19.It was submitted that it is important for the court to note the two different dates used in the prosecution's case. First, the alleged assault upon the deceased is said to have taken place at 6:40 PM on 18th July, 2023. Secondly, the deceased is said to have died at his home at 0130 hours on 22nd August, 2023. The trial court erroneously mixed up the dates and time to arrive at the erroneous conclusion that the deceased was assaulted at 0130 hours. None of the prosecution witnesses testified that the deceased was assaulted at 0130 hrs. In fact PW6 stated that the assault allegedly took place at 6:40 PM while the deceased wrote in his statement that the assault took place at 6:20 PM. The trial court having found that the Appellant's alibi for 6:40 PM was possibly true, that amounts to reasonable doubt upon the allegation that the Appellant was at the scene at 6:40 PM. 20.It was the Appellant’s submission that the three grounds above cast strong doubt upon the prosecution's case as to the guilt of the Appellant. That the prosecution was not only duty bound to prove their case but to do so beyond reasonable doubt by eliminating every contradiction and gaps in their case. It was also contended that what is clear is inter alia: the Appellant's defence of alibi for 6:40 PM on 18th July, 2023 was found to be a possibility by the trial court; the contradictions between the medical evidence of PW4 (the clinical officer) and PW5 (the Doctor) were substantial and remain unexplained to date; the prosecution's own witness (PW5) testified that the deceased died from obstructive uropathy which is the result of a urinary tract infection. 21.It was urged that this Court finds that the prosecution failed to discharge their burden of proof to the required standard thus making the conviction unsafe. It was urged that the appeal be allowed and that trial court’s conviction be quashed and the sentence be set aside and the Appellant be set at liberty. 22.I have given due consideration to the record of appeal and the submissions filed. I find the issues for determination are firstly, whether the Respondent proved its case against the Appellant beyond any reasonable doubt and secondly whether the sentence imposed was appropriate. 23.The burden of proof in all criminal cases is always upon the prosecution to discharge and that the standard is one of beyond any reasonable doubt. See Woolmington Vs. DPP [1935] AC462. Also in the case of Miller Vs Minister of Pensions [1947] 2 ALL ER 372 the court held as follows:‘’That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof of beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’ the case is proved beyond reasonable doubt, but nothing short of that will suffice.’’It is noted that the Appellant had been charged under section 202 as read with section 205 of the Penal Code which relates to manslaughter. The said provisions are as follows:Section 202-Any person who by an unlawful act or omission causes the death of another person is guilty of an offence termed as manslaughter.Section 205-Any person who commits the felony of manslaughter is liable to imprisonment for life. 24.The ingredients offence of manslaughter are similar to those of murder except that the aspect of malice aforethought does not feature and hence the prosecution is supposed to establish the ingredients inter alia; death and cause of death; That the death was unlawful and finally, that the Appellant was the assailant. In the case of Chirchir & another v Republic [20251 KECA 1369 (KLR), where the Court of Appeal held, at paragraph 46, that in an offence of manslaughter, the prosecution must prove all the elements of the offence of murder except the element of malice aforethought. In a more-clearer manner, Aburili J. held, in Stephen Mulamba Were v Republic [2019] eKLR, held that in an offence of manslaughter, the prosecution must prove beyond reasonable doubt that it is the actions of the accused person that directly led to the death of the deceased. 25.As regards the fact and cause of death, it was the evidence of Dr Daniel Wanjofu Juma (PW5) who testified as follows:“In external findings on examination, the skin appeared wrinkled over the body. No obvious indicators of recent or long-term trauma on the head, neck, back, chest and extremities. No signs of injury on the body. There was no signs of chronic illness noted. The left kidney was enlarged than the right kidney. No traumatic changes. The bladder was distended with turbid urine suggestive of urinary tract infection and obstructive uropathy. As a result of my examination, I formed the opinion that the cause of death was obstructive uropathy with acute urinary retention with a post traumatic rib fracture. The age of the fracture is not stated. No external instance can precipitate the urine retention."The said pathologist produced the autopsy dated 6/9/2023 as exhibit No.4. It is therefore quite clear that this ingredient was proved by the prosecution beyond any reasonable doubt. 26.As regards the unlawfulness of the death, it is trite law that all homicides are unlawful unless authorized by law. The deceased was an elderly man then aged over seventy (70) years and in good health. The injuries noted by the pathologist (PW5) left no doubt that the assailant desired that the same would lead to the death. It transpired that the deceased had earlier on been assaulted on 18/7/2023 and that a report had already been lodged with the police which was then pending investigations and in which a P3 form had already been issued and which was produced by the clinical officer (PW4) and in which the degree of injuries had been assessed as grievous harm. The manner in which the deceased met his death left no doubt that his assailants wanted him to die. Indeed, it transpired from the evidence that the deceased was undergoing treatment between the date of assault (18/7/2023) and the date he succumbed to the injuries (22/8/2023). It is thus clear that the eventual death of the deceased was as a consequence of the assault that had taken place earlier. Hence, I find the death was unlawful and that this ingredient was proved by the prosecution beyond any reasonable doubt. 27.As regards the identity of the Appellant as the perpetrator, the Appellant vehemently denied involvement in the death of the deceased. It was therefore incumbent upon the prosecution to present watertight evidence placing the Appellant at the scene of crime as the perpetrators of the crime. The prosecution lined up family members of the deceased(PW1, PW3, and PW6) whose evidence is that they saw the Appellant herein attacking the deceased and stepping on him severally while the deceased was on the ground. Their evidence is that they later reported to the clan elder and made a report to Akala Police station where a P3 form was issued. They further testified that the incident took place on 18/7/2023 and that the deceased was undergoing treatment at home when he succumbed to the injuries. The investigating officer (PW7) stated that he established that the Appellant had a dispute with the deceased over some tree and that the deceased had earlier sold a piece of land to the Appellant and further that he established from the deceased that the Appellant and her husband ambushed him while on his way and attacked him viciously. That he recorded a statement from the deceased which he produced as exhibit. In the said statement by the deceased he gave a vivid account of how he had been assaulted by the Appellant on 18/7/2023. The deceased stated that after the injuries, he was unable to control his bladder and that he literally wet his pants and it seems the condition went unabated up to the time of his death. It is therefore clear that the injuries sustained during the assault on 18/7/2023 must have led to the death. 28.The Appellant tendered an alibi to the effect that she was not at the scene of crime as alleged as she was busy at Luanda market carrying out her business selling fruits. She called one of her colleagues (DW2) who backed her claim. Therefore, it was the evidence of the eye witnesses (PW1, PW3 and PW6) and the deceased himself and that of the Appellant and her witness to be considered. Looking at the two versions, it is obvious that the Appellant’s evidence could not be believable as the deceased could not have sustained injuries elsewhere and then blame her just because there was a dispute over some tree that had allegedly been cut. Even though the Appellant raised an alibi, the duty to prove the guilt of an accused still remains with the prosecution to prove beyond any reasonable doubt. In the case of Patrick Muriuki Kinyua & Another Vs Republic [2015] KECA 1000 (KLR) it was held that an alibi is a plea by an accused person that he was not there (was not present) at the place where the crime was committed at the time of the alleged commission of the offence for which he is charged. Again, in the case of R Vs Sukha Singh s/o Wazir Singh & Others [1939] 6 EACA 145 the court held as follows:‘’If a person is accused of anything and his defence is an alibi, he should bring forward that alibi as soon as he can because, firstly, if he does not bring it forward there is naturally a doubt as to whether he has not been preparing it in the interval, and secondly, if he brings it forward at the earliest possible moment it will give the prosecution an opportunity of inquiring into that alibi and if they are satisfied as to its genuiness, proceedings will be stopped.’’ 29.An analysis of the record of appeal especially the evidence of the clinical officer (PW4) and the pathologist (PW5), it is clear that the injuries inflicted on the deceased on 18/7/2023 led to his eventual death on 22/8/2023. The pathologist’s prognosis namely that the cause of death was due to obstructive uropathy with acute urinary retention must be connected to the assault incident on 28/7/2023 for which the deceased had been undergoing medication as confirmed by the treatment notes from Ramula Health Centre and Yala Sub County Hospital and the P3 form. Iam satisfied that the deceased had died due to the injuries sustained in the assault and in which the Appellant was placed at the scene of crime. The Appellant’s alibi defence did not shake the evidence of the prosecution which was quite overwhelming against her. It is quite remote that the deceased sustained injuries elsewhere and then blame the Appellant so as to settle differences emanating from the dispute over the cutting of a tree. Iam satisfied that the Respondent had presented watertight evidence against the Appellant beyond any reasonable doubt. Hence, the finding on conviction by the learned trial magistrate was sound and must be upheld. 30.As regards the sentence, the Court of Appeal in the case of Charo Ngumbao Gugudu Vs. R [2011] eKLR held as follows:“Further, the law is that sentence imposed on an accused person must be commensurate to the moral blameworthiness of the offender and that it is not proper exercise for the court to fail to look at the facts and circumstances of the case in their entirety before settling for any given sentence. See Ambani Vs. R [1990] KLR”According to the Judiciary Sentencing Policy Guidelines (2023), sentencing of offenders should take into account the following objectives:a)Retribution - To punish the offender for their criminal conduct in a just manner.b)Deterrence - To deter the offender from committing a similar or any other offence in future as well as to discourage the public from committing offences.c)Rehabilitation - To enable the offender to reform from his/her criminal disposition and become a law-abiding person.d)Restorative justice - To address the needs arising from the criminal conduct such as loss and damages sustained by the victim or the community and to promote a sense of responsibility through the offender’s contribution towards meeting those needs.e)Community protection - To protect the community by removing the offender from the community thus avoiding the further perpetuation of the offender’s criminal acts.f)Denunciation - To clearly communicate the community’s condemnation of the criminal conduct.g)Reconciliation - To mend the relationship between the offender, the victim and the community.h)Reintegration - To facilitate the re-entry of the offender into the society. 31.It is noted that the Appellant was sentenced to ten years’ imprisonment. Under section 205 of the Penal Code, the punishment for manslaughter is a sentence of life imprisonment. It is my considered view that life imprisonment is reserved for the worst form of offenders and that I do not consider that the Appellant is a suitable candidate for the same. I have perused the pre-sentence report that had been presented to the trial court for consideration. I have also considered the sentiments of the learned trial magistrate. Looking at the circumstances of the offence, it is clear that the family of the Appellant and the deceased are yet to reconcile and still have not made any attempt at any reconciliation. It is clear that the conduct of the Appellant in viciously attacking the deceased who was an octogenarian and defenseless was unwarranted. The issue of a tree having been cut could still have been resolved by the authorities had the Appellant presented her complaint. There is no evidence that the deceased had provoked the Appellant as he was on his way home when the Appellant confronted him and demanded to know why the deceased had cut the tree. The Appellant should not have taken the law into her hands. The deceased lost his life thanks to the ungovernable anger of the Appellant. The pre-sentence report indicated that the Appellant was known to be a rude and arrogant lady in the area. Iam of the considered view that the Appellant herein required a comprehensive custodial rehabilitation in order to enable her to undergo the requisite rehabilitation so as to work on her anger related issues before being released back to the society. I find the sentence of ten years’ imprisonment is neither harsh nor excessive and thus the Appellant’s appeal thereon lacks merit. 32.In view of the foregoing observations, it is my finding that the Appellant’s appeal lacks merit. The same is dismissed. The conviction and sentence by the trial court is hereby upheld. DATED AND DELIVERED AT SIAYA THIS 12TH DAY OF JUNE 2026D. KEMEIJUDGEIn the presence of :1. Celestine Atieno Were..............................Appellant2. Odhiambo.......................................for Appellant3. Soita.........................................for Respondent4. Maurine........................................Court Assistant