Njoroge v Republic (Criminal Appeal E050 of 2025) [2026] KECA 1193 (KLR) (26 June 2026) (Judgment)

Njoroge v Republic (Criminal Appeal E050 of 2025) [2026] KECA 1193 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KECA 1193 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Criminal Appeal E050 of 2025 JM Mativo, PM Gachoka & MB Kairaria, JJA June 26, 2026 Between Collins Maina Njoroge Appellant and Republic Respondent (An appeal against the conviction and sentence from the High Court of Kenya at Nakuru (H. Ong’udi, J.) dated 30th October 2024 in HCCR. Case No. 19 of 2018) Judgment 1.Collins Maina Njoroge (the appellant) was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code at the High Court at Nakuru in HCCR. Case No. 19 of 2018. It was alleged that on 25th February 2018 at Kampi ya Moto Village within Nakuru County, jointly with others not before the court he murdered Joel Mbuthia Kamau. He denied the charges and a trial ensued. The prosecution case stood on the testimony of 5 witnesses. The appellant tendered his defence under oath and called 3 witnesses. 2.As a first appellate Court, we are legally bound to conduct a complete, independent and critical rehearing of the entire case and arrive at our own independent conclusions. This mandate is clearly stipulated under section 379 (1) of the Criminal Procedure Code. However, we must remain alive to the fact that we did not have the opportunity to hear and observe the witnesses as they testified in order to gauge their demeanour, therefore, we must give room to that fact. (See Dickson Mwangi Munene & Ano. vs Republic [2014] eKLR). Consequently, we must strike a precise balance between acknowledging the trial court's unique advantages and fulfilling our own constitutional duty to independently evaluate the record and arrive at our own conclusions. 3.In line with our above stated mandate, we will re-examine the evidence tendered before the trial court. PW1, Monica Ngonyo Kamau, testified that on 25th February 2018 at around 5pm, the deceased came to her home. Shortly, a vehicle with 5 occupants drove in. He knew one of the occupants who happens to be the appellant, who they schooled together and he once stayed with them. One of the occupants who was wearing a marvin and glasses greeted the deceased, then he removed the marvin and the glasses. The deceased knelt down and told him “afande usinipige.” However, one of the persons pushed the deceased down, handicapped him and put in the boot of the vehicle which was driven by the appellant. PW1, accompanied by her husband, (PW2), followed the vehicle to Kampi ya Maoto Police Post but they were told the deceased was not there. The following morning someone called and told them that the deceased had been killed and buried (sic). 4.PW2, Bernard Nderitu Thombe, a brother in law to the deceased, testified that on 22nd February 2018 at 4pm, he was in a club at Lengerenet centre when the deceased came in. He told the deceased not to leave because there were people looking for him. The deceased remained inside a private room. However, he did not see him leave. Later, PW1, came to him running and told him the deceased had been picked by some people. PW1 told him that she recognized the appellant who was also her friend. He called the appellant but he was out of network. He searched for him in vain and he went home. The following day he called the appellant who told him they dropped the deceased at “Mama Njoroge’s place.” However, someone told him that the deceased had been killed at junction. PW2 called the appellant and he told him that he had heard the same information. After a long search, they finally saw the body, which had already been buried. 5.Mr. Peter Gicharu Kamau (PW3), was the deceased’s elder brother. His evidence was that on 25th February 2018 at 11pm he was told that by his elder brother that is the deceased had been killed. The following day, accompanied by his mother, Margaret Wanjiku, they recognized the body at the mortuary. He stated that the appellant was his neighbour. On cross- examination, he said he heard that the deceased had stolen some items which were recovered from his kitchen. 6.George Kibucho Kamau (PW4), also a brother to the deceased testified that on 25th May 2018 at around 11pm, he was called by the area chief, who told him his brother had been killed at junction. He went to the mortuary where they identified the body. It was his evidence that no post mortem was conducted because they did not have money. He stated that the appellant was his neighbour and that they grew up together. Answering questions on cross-examination, he stated that the deceased was of bad character. 7.Dr. Ngulungu Titus, performed the post-mortem on 27th April 2018. He stated that the body had already been buried, hence, he exhumed it. It had injuries on the hands, lacerations on the forehead, an injury on the skull measuring 25x5cm, a bruise on the left side of the neck and a compound fracture on the left leg. In his opinion, the cause of death was extensive injury to the chest and head injury due to combustion and carbon monoxide. He produced the post mortem report in court. 8.John Komen attached to Menengai Police Station, took over the investigations from a Mr. Chesereck who was the investigating officer. An application by the prosecution seeking the Court's permission for PW6 to produce the statement written by Mr. Chesereck was declined by the trial court. This marked the close of the prosecution case. 9.The appellant gave his defence under oath. He stated that on 25th February 2018, he went to the deceased’s home with a client, a police officer, and a chief called Johanna. He said a lady called Saline Jepkum Cheruiyot had complained against the deceased. It was his evidence that they searched for the deceased and at his home they found the allegedly stolen items. He said the deceased was ultimately traced on 23rd. (The record does not indicate the month or the year). He said he witnessed his arrest by two police officers who were the last two persons to be seen with the deceased. He did not know whether there was an Occurrence Book (OB) entry. The appellant was recalled on 6th February 2023. He produced an affidavit which he said was sworn by the deceased’s mother. The key averment was that the deceased was a thief. 10.DW 2, CIP Mohamed Yiyat was in charge of Kampi Ya Mawe Police Station. His evidence was that the original OB was not traced. 11.Daniel Wambua Kalozo (DW3) produced minutes showing that they had a family meeting which the appellant attended at Wakahiga village in Nyandarua County. On cross examination, he stated that he did not know what happened after the deceased left them nor did the minutes indicate when the meeting ended. 12.Lastly, DW4, the area chief testified that he knew the appellant, who was a neighbor to the deceased. He said the deceased was a thief and that the appellant came to the scene after the police had arrived, and, the deceased had already been arrested. It was his evidence that the deceased was killed by a mob. 13.In the impugned judgment dated 30th October 2024, Ongudi, J. convicted the appellant of the offence of murder contrary to section 203 as read with section 204 of the Penal Code and sentenced him to suffer death. In a ruling on sentence dated 18th December 2024, the learned judge after considering the pre- sentencing report and the appellant’s mitigation sentenced the appellant to serve 9 years in prison. 14.The appellant is now before this Court challenging both the conviction and sentence citing 4 grounds in his supplementary memorandum of appeal, essentially faulting the learned judge for: (a) convicting him despite the fact that the prosecution had not proved its case to the required standard; (b) convicting the appellant on circumstantial evidence when there was no complete chain of events to unerringly infer guilt on the appellant; (c) failing to appreciate that the prosecution had not proved beyond reasonable doubt that the appellant had unlawfully caused the deceased’s death, and (d) failing to consider the defence evidence while heavily replying on the prosecution’s evidence to convict the appellant. 15.In support of the appeal, the appellant’s counsel cited several authorities among them Sawe vs. Republic [2003] KLR 364 to urge that in order to justify a conviction on circumstantial evidence, the exculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis other than that of his guilt. There must be no other co-existing hypothesis than that of his guilt. Counsel posed the question whether the prosecution evidence tendered in this case irresistibly linked the appellant to the offence. He maintained that PW1’s evidence was that the deceased was picked by police officers from her compound and that she heard the deceased saying “afande usinipige” before being handcuffed and taken to the car. Counsel also referred to PW2’s evidence, who stated that he warned the deceased not to get out of the club because police officers were looking for him. He stressed that PW2 did not mention the appellant. 16.It was counsel’s submission that the prosecution case stood on the “last seen” doctrine and contended that the person who was seen with the deceased last was the AP Officers referred as “afande” by the deceased. According to counsel, as per the evidence of PW1, PW2, DW1 and DW4, the appellant was seen with the AP Officers and not the deceased. He argued that the prosecution failed to link the appellant with the events that unfolded after the deceased was handcuffed. 17.In addition, counsel argued that the prosecution evidence was contradictory. In support of this assertion, counsel referred to the testimony of PW1 and PW2 and argued that whereas PW1 said PW2 was in the house when the deceased was picked and they followed them. PW2 stated that he was in the club serving customers when PW1 came rushing to inform him that the deceased had been picked and he decided to follow him. According to counsel, the events took place at 5pm, therefore, PW1 must have recognized the vehicle’s number plate, make or color of the car. According to counsel, the above contradictions put into question the credibility of the testimony of PW1. To buttress this assertion counsel cited passage from Kimani vs. Republic [2024] KECA 615 (KLR) to urge that discrepancies raise doubts as to whether the event in question ever occurred. Lastly, counsel argued that should the Court find that the deceased was with the appellant, then the chain of events was broken the moment he was put in the boot of a police car. 18.As to the cause of death, counsel referred to the testimony of PW5 whose evidence was that the deceased was subjected to mob justice. 19.Counsel faulted the prosecution for failing to call the investigating officer as a witness. Further, no photographs were produced placing the appellant at the scene. Also, the person who allegedly called PW1 and PW2 and informed them that the deceased had been killed was not called to testify. Lastly, the motive of the killing was not established. 20.The respondent’s counsel relied on written submissions dated 23rd March 2026. As to whether malice aforethought was established, counsel cited Nobart Ekaita vs. R. [1994] eKLR and Karani & 3 Others vs. Republic [1991] KLR 622 among other decisions to urge that malice aforethought was proved. The respondent’s counsel recalled the evidence tendered by PW1, PW2, PW3 and PW4 to urge that the deceased was taken from PW1’s house and the next day he was reported to have been killed. The respondent also referred to the evidence of PW5 who detailed serious injuries which were inflicted on the deceased which caused his death. 21.According to the respondent, the appellant’s defence was an afterthought which was raised too late in the day and it was full of inconsistencies. The inconsistencies included the appellant’s evidence that he attended a family meeting on 25th February 2018, yet the minutes he produced as defence exhibit 2 are dated 24th February 2018 which suggests dishonesty on his part. The respondent also contended that DW3 stated in cross- examination that he did not know what happened after the appellant left the meeting at around 3pm and 5pm when the incident occurred which was sufficient time for the appellant to travel from Kambi ya Moto to Nakuru where he accompanied the officers who picked the deceased. 22.Regarding the sentence, the respondent submitted that there existed aggravating circumstances which warranted a severe sentence but the appellant was only sentenced to a 9-year imprisonment which is neither harsh nor excessive. 23.First, we will address what is evidently the appellant’s germane ground in support of his appeal, which is, the prosecution evidence was circumstantial in nature and it did not meet the threshold laid down in decided cases to form the basis of a conviction. However, there is a rudimentary fact the appellant’s counsel overlooked. The facts in this case disclose the "last seen alive" doctrine (often termed the "last seen together" theory), a form of circumstantial evidence used in criminal law where a victim is proven to have been alive in the company of the accused, and shortly thereafter, is found dead. This doctrine posits that when an accused person was the last individual seen with a deceased, they are obligated to explain the circumstances of their last interaction. (See Punaji, Arjun, Beyond Mere Presence: A Critical Look at the 'Last Seen' Theory in Circumstantial Evidence Contents (February 10, 2024)). 24.While the overall onus of proof always remains on the State to establish guilt beyond a reasonable doubt, proving that the accused was the last person seen with the victim shifts an evidential burden to the accused. Because the events immediately preceding the victim's death lie “peculiarly within the exclusive knowledge" of the accused, the accused is expected to offer a plausible explanation as to what transpired. If the accused remains silent or provides a demonstrably false explanation, the Court is entitled to link this failure to the existing circumstantial evidence and infer that the accused is the author of the crime. The trial court had this to say regarding the evidence against the accused: 44.Upon consideration of the evidence by the prosecution in its totality and in particular the evidence by PW 1 and PW2, I am satisfied beyond reasonable doubt that the accused and a gang of officers came to the house of the couple (PW 1 and PW2) on 25th February 2018 after 5pm. They bundled away the deceased into the boot of the car they came with. That was the last time the deceased was seen alive by PW 1 and PW2. There is no record of him having been taken to any police station. 45.From the charge sheet, the deceased died on 25th February 2018 which is the same day he was picked from the house of PWl and PW2. The accused cannot escape the blame. He knows where they took the deceased and what was done to him. 47.In his evidence the chief (DW4) said the deceased's body was burnt. The post mortem report (EXB1) does not make a mention of any burns on the deceased's body. The injuries were all over the body, and were brutal. This combined with the way he had been handled from the house confirms that the accused and his team were not out for anything good for the deceased.” 25.The Court must evaluate the evidence in its totality, weighing the prosecution's case against the defense, considering all probabilities and weaknesses, to determine if the state has proven its case beyond a reasonable doubt. (See the Supreme Court of Appeal of South Africa in S. vs. Chabalala 2003 (1) SACR 134 (SCA) at 141a-b). The learned judge had this to say regarding the appellant’s alibi:38.I will however still evaluate the alibi defence evidence against that of the prosecution. The accused only told the court that he was in a family meeting at Olkalou on 25th February 2018. No details like time of arrival and departure were given. His step brother (DW3) said the meeting was held on 25th February 2018 and ended at 3pm. Later he said it ended at 2.35am. A perusal of the minutes (DEXB 20) shows that the meeting was on 24th February 2018 and it started a 11.56 pm and ended at 2. 35am. He further said he did not know what happened after the accused left them. The accused never made mention of this.39.I have perused the list of attendees of the family meeting (D. EXB 2). The name Collins Maina Njoroge (accused) appears nowhere. DW3 tried to explain that he knew the accused as James and his ID card read James. The accused never explained anywhere that he has an alias name of James. He cannot pretend not to have seen (DEXBl) which he asked his witness to produce. DW3 also claimed that the accused's ID card reads James. This ID card was never produced in court to establish that.40.DW4 who is the chief did not witness what he claimed was mob justice on the deceased. The accused in his evidence stated that DW4 was one of those who went with him and police officers to the deceased's home from where they recovered stolen items belonging to his employer. DW4 never alluded to anything near this in his evidence.41.An affidavit (DEXBl) alleged to have been sworn by the deceased's mother was produced by the accused. The source of this affidavit and even how it was obtained was never explained to the court. The alleged deponent was already deceased at the time of its production. She could not therefore be examined on it.The deponent never witnessed the deceased being killed, for her to claim he was killed by mob "justice".” 26.Our analysis of the evidence leaves us with no doubt that the appellant was well known to PW1 and PW2. PW1’s evidence clearly shows that the appellant was among the persons who put the deceased in the car and they drove with him. In fact, it was the appellant who drove the vehicle. The police Occurrence Book from the police station was never produced leaving the Court guessing whether the deceased was booked at the police station. When PW1 and PW2 went to the police station to inquire the deceased’s whereabouts shortly after he was bundled into the vehicle, they were told he was not booked at the said police station. PW5 who performed the post mortem said the body had been buried and that it had to be exhumed for the post mortem to be done. Under the last “seen alive doctrine,” the appellant bore the burden to explain when and where he parted with the deceased and whether the deceased was alive and well when they parted. His evidence and that of his witnesses did not address this issue. To avoid the adverse inference, the appellant was obligated to explain when and where he parted with the deceased. As was held by this Court in Nasimiyu & 2 Others vs. Republic [2022] KECA 890 (KLR) once the "last seen doctrine" is successfully triggered, an evidential burden shifts to the accused person as a matter of law to provide a plausible or reasonable explanation regarding what happened to the deceased. Failure to provide a plausible explanation enables the Court to draw an inference of guilt. This is supported by cases like Kimani vs. Republic [2023] KECA 1390 and Kamau vs. Republic [2024] KECA 1193, which hold that this doctrine bridges gaps in circumstantial evidence. 27.However, a reading of the above decisions shows that this doctrine is not a blank cheque. It requires: (a) a minimal time gap. The time between last contact and the death must be extremely short. (b) unbroken chain of circumstances. The evidence must form an unbroken chain pointing exclusively to the accused either alone or jointly with others. As the events narrated earlier demonstrate, the appellant in the company of administration police officers went to PW1’s home. There is undisputed evidence that the appellant was known to PW1. The deceased knelt down pleading not to be harmed, but in that kneeling position he was pushed to the ground, handcuffed and bundled into the boot of the car which was driven by none other than the appellant. The same day, it was reported that he had been killed. The time gap between when the deceased was picked and when he was reported to have been killed is minimal. 28.As the law requires, the burden shifted to the appellant to give a reasonable explanation. He was obligated to explain at what point and where he dropped the appellant from the vehicle he was driving. He was required to explain where he parted with the deceased if at all and his condition, and whether he left alone or in the company of other persons. In absence of a plausible explanation as to what happened, then, the court was justified to make an inference that he had the opportunity to cause the death and or he participated in the killing. 29.Sadly, despite the clear evidence that some police officers were in the company of the appellant, they were never charged with the offence nor were they called as witnesses to shed light on this sad happening. The family members’ attempts to locate the deceased at the police station were in vain. To crown this massive cover up, the OB from the police station where the deceased was allegedly taken was not availed and the investigating officer never showed up to testify. Sadly, no action was taken against the said police officers. Nevertheless, we are persuaded that the inference of guilty in this case was well founded. 30.This leads us to the next critical question, which is whether the offence of murder was proved to the required standard. Section 203 of the Penal Code defines the offence of murder as follows: “Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” A reading of this section shows that to succeed in a murder case, the prosecution must prove the following ingredients: (a) the death of the deceased; (b) that the death was caused by an unlawful act or omission on the part of the accused; (c) that in causing the death of the deceased, the accused had malice aforethought. (See this Court’s decision in Titus Ngamau Musila Katitu vs. Republic [2020] eKLR). It is common ground that the death is not disputed, therefore, the first pre-requisite is not in issue. We will focus on the remaining ingredients. 31.Malice aforethought refers to an intentionally harmful act that typically leads to someone's death. Malice aforethought is a critical element of the crime that distinguishes the offence of murder from other types of homicide cases, such as manslaughter. Malice aforethought shows the following: (a) the killer's state of mind at the time of the murder; (b) the killer thought about the murder before committing it; and, (c) the killer took specific steps to facilitate the murder. (See this Court’s decision in Odio vs. Republic (Criminal Appeal 228 of 2019) [2024] KECA 1544 (KLR)). 32.As was held by this Court in Odio vs. Republic (supra), malice aforethought may be express or implied. Express malice aforethought refers to when a deliberate intention is manifested to take away the life of a person unlawfully. Implied malice aforethought applies when no considerable provocation appears or when the circumstances attending the killing show a reckless and wicked heart. To be convicted of murder, malice aforethought must be proved. Malice aforethought cannot be imputed to an accused person based solely on their participation in a crime. If it is shown that the killing resulted from an intentional act with express or implied malice aforethought, no other mental state need be shown to establish malice aforethought. In Nzuki vs. Republic [1993] eKLR, this Court defined malice aforethought as:“a term of art and is either an express intention to kill, as could be inferred when a person threatens another and proceeds to produce a lethal weapon and uses it on his victim; or implied, where, by a voluntary act, a person intended to cause grievous bodily harm to his victim and the victim died as the result. See the case of Regina v Vickers, [1957] 2 QB 664 at page 670. An intention connotes a state of affairs which the person intending does more than merely contemplate: it connotes a state of affairs which, on the contrary, he decides, so far as in him lies, to bring about, and which, in point of possibility, he has a reasonable prospect of being able to bring about by his own act of volition. See the case of Conliffe v Goodman, [1950] 2 KB 237.” 33.The threshold for determining malice aforethought is provided in section 206 of the Penal Code, which provides:206.Malice aforethought Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—a.an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;b.knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by 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. 34.In Nzuki vs. Republic (supra), this Court stated:Before an act can be murder, it must be aimed at someone and in addition it must be an act committed with one of the following intentions, the test of which is always subjective to the actual accused:i)The intention to cause death;ii)The intention to cause grievous bodily harm;iii)Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from these acts, and commits those acts deliberately and without lawful excuse the intention to expose a potential victim to that risk as the result of those acts.It does not matter in such circumstances whether the accused desires those consequences to ensue or not and in none of these cases does it matter that the act and the intention were aimed at a potential victim other than the one who succumbed.Without an intention of one of these three types, the mere fact that the accused’s conduct is done in the knowledge that grievous harm is likely or highly likely to ensue from his conduct is not by itself enough to convert a homicide into the crime of murder. See the case of Hyam v Director of Public Prosecutions, [1975] AC 55.” 35.Because a court cannot directly read an accused person's mind, courts routinely rule that malice aforethought (or criminal intent) can be conclusively inferred from the objective medical evidence, specifically the nature, location, severity and multiplicity of the injuries inflicted on the deceased. The East African Court of Appeal in the landmark case of Rex vs. Tubere s/o Ochen [1945] 12 EACA 63 explicitly laid down a four-factor checklist for courts to deduce malice aforethought from a deceased’s body: (a) the nature of the injuries: violent, devastating, or deep wounds speak directly to the assailant’s frame of mind; (b) the part of the body targeted: intentionally striking highly vulnerable, vital organs (such as the brain, neck, or heart) demonstrates a clear expectation of a fatal outcome; (c) the weapon used: deploying an inherently lethal instrument (e.g., a firearm, heavy machete, or iron bar) to cause those injuries signals malicious intent; (d) the manner of infliction: repeated, persistent actions, as opposed to a single, accidental blow, indicate a determined will to kill. This Court in Musimbi vs. Republic [2023] KECA 287 ruled that death by ligature strangulation or manual asphyxiation serves as absolute proof of malice aforethought. Strangulation requires sustained, continuous physical pressure over minutes, showcasing a "pure intention to end the deceased's life”. 36.When a court is asked to infer malice aforethought in cases of this nature, the Court weighs the findings using a two-step judicial inquiry:(a)The Objective Inquiry (Post-Mortem): The Court analyzes the pathologist's report to isolate the exact cause of death, the force required to break bone or sever tissue and the number of distinct impact sites.(b)he Subjective Inference: The Court asks: could a person inflict these precise injuries without realizing that death would be the natural and probable consequence? If the answer is no, malice aforethought is legally established. (See the High Court decision in Republic vs. Koskei alias Nicholas Korir [2025] KEHC 2686 (KLR)). 37.Earlier in this judgment we highlighted the evidence of PW5 who conducted the post mortem examination. It will add no value for us to regurgitate it here. We can only add that the injuries were severe, brutally inflicted and calculated to kill or maim in the minimum. Without hesitation, we find that malice aforethought was clearly established in this case. 38.The next question is whether it was established beyond reasonable doubt that the appellant caused the deceased’s death. The appellant’s counsel insisted that the circumstantial evidence adduced did not meet the required threshold to irresistibly point at the appellant as the offender. Granted, the threshold for circumstantial evidence to secure a conviction is exceptionally high. For circumstantial evidence to be held to have irresistibly pointed at the accused as the offender, it must completely exclude any other reasonable hypothesis except that of the accused's guilt. The East African Court of Appeal decision in R. vs. Kipkering arap Koske & Ano. [1949] 16 EACA 135 remains the baseline authority in determining cases based on circumstantial evidence. It establishes that: (a) the inculpatory facts must be entirely incompatible with the innocence of the accused; (b) the evidence must be incapable of explanation upon any other reasonable hypothesis than that of guilt; (c) there must be no co-existing circumstances that weaken or destroy the inference of guilt. We find that the death was unlawfully caused. 39.The above three-pronged test explicitly itemized the strict thresholds circumstantial evidence must meet as follows: (a) the baseline facts and circumstances from which the inference of guilt is drawn cannot be speculative; they must be proven solidly beyond reasonable doubt; (b) those circumstances must possess a definite direction that points directly and unerringly toward the guilt of the accused person; (c) taken cumulatively, the circumstances must form a chain so complete that there is no escape from the conclusion that, within all human probability, the crime was committed by the accused and no one else. 40.We now turn to the evidence adduced before the trial court to satisfy ourselves whether it met the above stringent requirements. As earlier concluded, the appellant was among the persons who forcefully bundled the deceased into a vehicle and drove away with him. He was later found dead. He could not have killed himself. In absence of an explanation by the appellant as to what transpired after they bundled him into the vehicle, we find that no other explanation can be arrived at to exonerate the appellant. As was held by this Court in Kiarie vs. Republic [1984] KLR 739 an accused person's defense must be explicitly weighed against the prosecution's evidence. We can only add that the correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides. The appellant’s defence as correctly held by the trial court did not remove him from among the persons who bundled the deceased into a vehicle only to be found dead. We are persuaded that the facts in this case do not suggest that the appellant was wrongly implicated. 41.The appellant argued that the prosecution evidence was marred by contradictions and picked specific parts of their evidence as alluded earlier. However, contradictions in evidence of a witness that would be fatal must relate to material facts and must be substantial. It is not every trifling inconsistency in the evidence of the prosecution witness that is fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the Court and therefore necessarily create some doubt in the mind of the trial court that an accused is entitled to benefit there from. (See Erick Onyango Odeng' vs. Republic [2014] eKLR). In conclusion, we are satisfied that the appellant’s conviction was safe. 42.While passing sentence, the learned judge stated that she considered the nature of the offence and the pre-sentencing report and the appellant’s mitigation and sentenced the appellant to serve 9 years in prison. This, in our view, is a very lenient sentence bearing in mind that a life was lost and in a very brutal manner. Therefore, we find no reason to interfere with this sentence. The upshot of the foregoing is that the appellant’s appeal both on conviction and sentence fails and is hereby dismissed. DATED AND DELIVERED AT NAKURU THIS 26TH DAY OF JUNE, 2026.J. MATIVO................................ JUDGE OF APPEALM. GACHOKA C.Arb, FCIArb.................................JUDGE OF APPEALMURUNGI B. KAIRARIA................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR.