https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1408

Ondieki alias Matigirisi v Republic (Criminal Appeal E015 of 2022) [2026] KECA 1408 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1408 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E015 of 2022 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 10, 2026 Between Cyrus Ondieki alias Matigirisi Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Kisii (R. Ougo J.) dated 27th September 2021 in HCCRC No. 2 of 2019 Criminal Case 2 of 2019 ) Judgment 1.This is a first appeal from the judgment of the High Court of Kenya at Kisii, (Ougo, J) (the trial court) dated and delivered on 27th September 2021. Cyrus Ondieki alias Matirigisi, the appellant, was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. Particulars being that between 26th and 28th June 2018 at Mwamuisagwa village, Bokeire Sub location, Iyabe Location in Kisii South Sub County within Kisii County, he murdered DN, (the deceased). The appellant denied the charge and after a trial in which the prosecution called 8 witnesses and not 9, (PW4 was recorded as PW5) and the appellant’s defence, the appellant was found guilty, convicted and sentenced to 30 years’ imprisonment. 2.Being aggrieved, the appellant lodged this appeal against both conviction and sentence through a memorandum of appeal dated 18th June 2025 filed by his advocate, Ms. Lukasile, which raised two grounds, namely; that the prosecution did not prove its case beyond reasonable doubt and the sentence imposed was manifestly excessive. 3.When the appeal came up for plenary hearing on 23rd April 2026, learned Counsel Mr. Menezes held brief for Ms. Lukasile, for the appellant, while Mr. Okeyo, learned prosecution counsel was present for the respondent. The appellant appeared from Naivasha Maximum Security Prison through video-link. Mr. Menezes, informed us that Ms. Lukasile would rely on her written submissions dated 6th July 2025 entirely. Mr. Okeyo, learned prosecution counsel, also relied on his written submissions dated 26th June 2025. 4.In the written submissions, learned counsel for the appellant submitted with regard to the first ground of appeal, that the prosecution did not discharge the burden of proof on the ingredients of the offence of murder. Police officers were faulted for conducting a search in the appellant’s house and collecting items from the house in the appellant’s absence and that the appellant was last seen with the deceased was on 25th December 2019 when the deceased sought boda boda service from the appellant but PW1 took the deceased away. In those circumstances, it was argued, the prosecution did not discharge the burden of proof that the appellant committed the offence. It was further argued that an identity card belonging to one Moses Mutungi Ombuna was found at the scene, and although the person was arrested, he was not charged with the deceased’s murder. 5.Regarding sentence, it was argued that the sentence of 30 years was excessive and the trial court failed to take into account guidelines on sentencing set by the Supreme Court in Francis Karioko Muruatetu & another v Republic & others [2017] KESC 2 (KLR). Reliance was placed on the decision of Robert Ng’ang’a v Republic [2021] eKLR, where death sentence was reduced to 15 years’ imprisonment in urging this court to exercise its discretion and reduce the sentence and also take into account the period the appellant spent in remand during trial. 6.This appeal was opposed. Mr. Okeyo, learned prosecution counsel submitted that the ingredients of the offence were proved, the appellant was identified as the perpetrator of the offence through the evidence as the last person seen with the deceased, analysis of the blood on the items recovered from the appellant’s house matched the deceased’s DNA profile and the act of manually strangling the deceased without giving her a chance to survive proved malice aforethought. 7.Regarding sentence, learned prosecution counsel submitted that the sentenced of 30 years imprisonment was lenient since the law provides for death penalty, and urged this court to dismiss the appeal. 8.This being a first appeal, it is the duty of this court to always remember that the parties are entitled, as well as demand, a decision of the court of first appeal, of reconsidering, reassessing the evidence afresh and drawing its own inferences and conclusions on both points of fact and law, while bearing in mind that it did not see witnesses and give due allowance in that respect. (Gabriel Kamau Njoroge v Republic [1987] eKLR). 9.The evidence of the 9 prosecution witnesses who testified before the trial court can be summarized as follows: On 25th December 2018 at about 7pm, PW1 - GMK, mother to the deceased, saw the deceased with the appellant. When PW1 asked the deceased what she was doing with the appellant, the deceased ran away and went home. The following evening, 26th December 2018, the deceased left home after preparing dinner but did not return that night, or 27th December 2018. On 28th December, 2018 PW1 learnt that the deceased’s body had been found in a maize firm. She went to the scene and identified the deceased’s body which was in a sack. The deceased’s clothes were besides the body. The Area Chief was informed and called the police who came and took the body to the mortuary. 10.PW2 ZK, a sister to the deceased was with the deceased at home on 26th December 2018. The deceased left home that evening after preparing dinner. Later that evening at about 9.pm, PW2 met the deceased with the appellant near a video place. When PW2 asked the deceased to accompany her home, the appellant told PW2 that the deceased would follow her home but the deceased never went home. The next day, 27th December 2018, PW2 again met the appellant and inquired from him where the deceased was. The appellant replied that they parted that evening. The next day, 28th December, 2018 the deceased’s body was discovered in a maize firm. PW2 went to the scene, identified the body and the slippers the deceased was wearing on the night she left home. 11.On 27th December 2018 at 4 pm, PW3 ZK, a cousin to the deceased and appellant’s neighbour, met the appellant who asked PW3 if she had heard anyone mention the deceased, only for PW3 to learn on 28th December 2018 that the deceased’s body had been found in a maize firm. PW3 went to the scene and saw the deceased’s body in sacks. The deceased’s clothes were besides the body. 12.PW4 Joseph Oyunge Mosumari, (thought recorded as PW5), the Area Assistant Chief received information on 28th December 2018 regarding a body that had been found in a mzee firm. He went to the scene and found a body inside a sack, learnt that that the deceased left home on 26th December 2018 and she was the last person seen with the appellant. PW5 went to the appellant’s home with police officers and found blood stains at the door to the appellant’s house; behind the house and at a latrine. Police officers later made further visits to the appellant’s house and found blood on the appellant’s bed, mattress, and on the floor. Slippers identified as belonging to the deceased were retrieved from under the appellant’s bed. On 30th December 2018, the appellant led investigators to a pit latrine within his compound from which a red and blue t-shirts with blood stains were retrieved. 13.Sgt. Charles Kiprono (PW6) (actually PW5) a Scenes of Crime Officer, together with other police officers visited the scene on 28th December 2018 and took photographs of the scene including the items found at the scene. He again went to the scene on 30th December, 2018 in the company of other police officers and the appellant. The appellant pointed out a pit latrine from which cloths with blood stains were retrieved. He took photographs on both occasions which were processed and later produced in court as exhibits. 14.On 31st December 2018, Doctor Peter Momanyi (PW7) (actually PW6) conducted a post mortem on the deceased’s body. From the post mortem examination, the deceased sustained bruises in the perineum region; left thigh and around the neck. The body had central and peripheral cyanosis which occur due to lack of oxygen. There was a crush on the neck trachea and the thyroid art had been crushed or squeezed. The right and left carotid vessels were compressed, the hymen had been broken with blood clots visible in the vagina. PW6 concluded that the cause of death was asphyxia, secondary to manual strangulation. 15.PW8 Cpl Margaret Kamau (read PW7) went to the scene with other police officers on 28th December, 2018. They found a body wrapped in sacks and cloths identified as belonging to the deceased next to the body. The body was taken to hospital for preservation. PW8 later rearrested the appellant who had earlier been apprehended and took him to Gensoso Police Station where he was booked. PW8 was also present when the appellant took police officers to his home when blood stains were found on the floor and on a mattress in the appellant’s house, a basin with cloths and slippers was recovered from under the bed. The slippers were identified by PW1 as belonging to the deceased, a post mortem was conducted and specimens taken for analysis. Investigations established that the appellant was the last person seen with the deceased before her body was found in a maize firm leading to the appellant being charged with the murder of the deceased. 16.Richard Kimutai, (PW9) (actually PW8), a Government Analyst, received a memo of exhibits dated 31st January 2019 forwarding blood samples of the deceased, a piece of a mattress with blood stains recovered from the appellant’s house, a pubic hair taken from the deceased, pubic and blood samples from the appellant and a high vaginal swab and buccal swab from the deceased. He conducted analysis which showed that blood stains were of human blood. DNA generated on the blood stains from the mattress and high vaginal swab matched the DNA profiles of the deceased. 17.In his defence, the appellant testified on oath that on 25th December 2018, the deceased wanted him to take her somewhere on his motorcycle but when PW1 found them talking, she went away with the deceased and the appellant never saw the deceased again. The appellant stated that he was arrested on 28th December 2018 and taken to police station where he was beaten and forced to record a confession that he was the one who had killed the deceased, he was in police cells on the day police officers allegedly recovered items from his house and he was taken to his home on a different day. He testified that although an identity card belonging to Mutungi Ombuna was found at the scene and Mutungi Ombuna was arrested, he was not prosecuted. 18.We have reconsidered, reevaluated and reanalyzed the evidence on record in order to make our own conclusions on that evidence. There is no doubt that the prosecution proved the death of the deceased through the evidence of PW1, PW2, PW3, PW4 and PW5 who saw the deceased’s body. PW7, the Doctor who performed the post mortem, confirmed that the cause of death was asphyxia, secondary to manual strangulation. He produced the post mortem report thus, not only proved the death but also the cause thereof to the required standard. 19.On whether the appellant was responsible for the deceased’s death, we appreciate, just as the trial court did, that the prosecution’s case was solely based on circumstantial evidence. This Court has consistently held that circumstantial evidence, if properly evaluated, is as good as any evidence and can prove a case with the accuracy of mathematics. (Musili Tulo v Republic, (Criminal Appeal No. 30 of 2013); [2014] eKLR; Ndurya v Republic [2008] eKLR). 20.However, for circumstantial evidence to sustain a conviction, the chain of the circumstances must consistently point only to the guilt of the accused, must be inconsistent with the innocence of the person, the circumstances have to be cogently and firmly established and when taken into consideration cumulatively, they must lead to the inescapable conclusion that the accused committed the offence (Sawe v Republic [2003] eKLR). 21.In this appeal, PW1 saw the appellant with the deceased on 25th December 2018, while PW2 saw the two together on 26th December 2018 at 9 pm at a video place and even spoke with the appellant who promised PW2 that the deceased would follow her shortly but this did not happen. PW3 met the appellant on 27th December 2018 and the appellant even inquired from PW3 whether she had heard anyone mention the deceased, only for the deceased’s body to be discovered the following day, 28th December 2018 in a maize plantation. The appellant was a person well known to PW1, PW2 and PW3. 22.The evidence on record shows that the appellant was the last person seen with the deceased and the appellant admitted knowing the deceased. However, as the Supreme Court of India observed, the “last seen doctrine” alone would not be sufficient to convict an accused where the case against him or her is based purely on circumstantial evidence, and mere proximity to the victim before death would not automatically imply his guilt. There must be other independent corroborative evidence to back it up. (Anand Jakkappa Pujari @ Gaddadar v State of Karnataka (2026 INSC 417)). 23.Following the appellant’s arrested, a search was conducted in his house leading to the recovery of slippers that were positively identified as belonging to the deceased and which the deceased was wearing on 26th December 2018 the night she left home. A mattress found in the appellant’s house had bloodstains; there was blood on the floor in the appellant’s house and outside the house. The appellant took police officers to his home and pointed out a pit latrine from which more cloths with bloodstains were recovered. Analysis conducted by a government analyst on the specimens forwarded to Government Chemist, including blood stains found in the mattress, matched the DNA profiles of the deceased, which means the deceased must have been in the appellant’s house. 24.The appellant admitted that police officers visited his house although he denied being present during the first visit and recovered a bloodstained mattress from his house as well as the deceased’s slippers. He later led police officers to a pit latrine within his home compound from which further recovery of items with bloodstains was made. 25.The appellant was the last person seen with the deceased on 26th December 2018 before her body was discovered two days later. This fact, coupled with the evidence on record, including discovery of bloodstains in his house whose analysis matched the DNA profiles of the deceased, could only lead to the inescapable conclusion that the deceased died in the hands of the appellant before he disposed of her body. The chain of circumstances was so complete that no other inference could be drawn from this evidence than that the appellant was linked with the commission of the offence. 26.The appellant’s allegation that an identification card of another person was found at the scene was not supported by any other witness that identity card was recovered at the scene or the arrest of any other person in connection with the deceased’s murder. Even if that were to be the case, nothing would turn on that allegation. 27.The cause of the deceased’s death was asphyxia, secondary to manual strangulation which was a deliberate intention to kill and therefore consistent with malice aforethought, which the prosecution proved to the required standard. 28.Having reconsidered and reviewed the evidence on record afresh, we too, like the trial Judge, have reached the conclusion, that the appellant was the last person seen with the deceased on 26th December 2018 before her lifeless body was discovered on 28th December 2018. The slippers the deceased wore on the night she left home were found in the appellant’s house, analysis of blood and other samples found in the appellant’s house matched the DNA profiles of the deceased, and the appellant did not explain how the deceased’s slippers and blood stains ended up in his house.The only logical inference to be drawn from these circumstances, is that the appellant was with the deceased in his house, deliberately killed her through manual strangulation and disposed of the body. 29.Regarding sentence, the appellant’s counsel urged us to set aside the custodial sentence and substitute it with a non- custodial sentence, or reduce the sentence imposed. Mr. Okeyo, learned prosecution counsel, argued that the sentence of 30 years was lenient given that the penalty provided in law for murder is death and urged us not to interfere with the sentence. 30.The appellant was sentenced to 30 years’ imprisonment for an offence punishable by death. In his mitigation through his counsel, the appellant stated that he was a first offender, a remorseful young man aged 34 years with no family and had been in custody since 2019. The trial court considered those mitigating factors, applied its mind to the circumstances leading to the painful loss of an innocent young life through a senseless act of the appellant and reached the conclusion we have seen regarding sentence. 31.In our view, the sentence imposed is lawful and commensurate with the offence. We see no lawful reason to interfere with the conclusions reached by the trial Judge on both conviction and sentence. 32.We note, however, that the sentence of 30 years was to run from the date of sentence which did not take into account the period the appellant spent in remand during trial as required by section 333(2) of the Criminal Procedure Code. The record does not show that the appellant was released on bail. 33.In the end, we find no merit in this appeal. We accordingly dismiss it, uphold the conviction and affirm the sentence. The sentence of 30 years shall, however, run from the date the appellant was first produced in court; that is, 15th January 2019. DATED AND DELIVERED AT KISUMU THIS 10TH DAY OF JULY, 2026.ASIKE-MAKHANDIA…………………………JUDGE OF APPEALE. C. MWITA……………………………JUDGE OF APPEALB. ONGAYA…………………………JUDGE OF APPEALI certify that this is a true copy of original.Signed.DEPUTY REGISTRAR