Munyange v Republic (Criminal Appeal E103 of 2021) [2026] KECA 1086 (KLR) (29 May 2026) (Judgment)

Munyange v Republic (Criminal Appeal E103 of 2021) [2026] KECA 1086 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KECA 1086 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E103 of 2021 MS Asike-Makhandia, HA Omondi & LK Kimaru, JJA May 29, 2026 Between Daniel Mutali Munyange Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Bungoma, (Riechi, J.) dated 18th November, 2021 in HCCR Case No. 7 of 2015 Civil Appeal 7 of 2015 ) Judgment 1.This is an appeal from the judgment of the High Court of Kenya at Bungoma in Criminal Case Number 7 of 2015 rendered by Riechi, J. The appellant, Daniel Mutali Munyange and two others, Joel Wetosi Khaoya, and Ruth Sakwa Mutali, hereafter “the co-accused and the deceased co-accused respectively”, were arraigned in court on the information charging them with murder contrary to Section 203 as read with Section 204 of the Penal Code. 2.The information was precise: that on the night of 3rd April 2015, at Mikubha village, Mitukuyu sub-location, Bungoma East sub-county within Bungoma County, the appellant, the co-accused and the deceased co-accused jointly, murdered Mary Wangui Mwangi “the deceased”. They all pleaded not guilty to the information and their trial soon thereafter ensued. However, the deceased co-accused passed on during trial and the information against her was withdrawn. 3.The facts of the case as presented by the prosecution are as follows.On the material night, PW1 Ronald Makaisi Sifuna, the secretary of the local community policing, received a call from the chairman of the group informing him that a robbery was underway in the home of the appellant and the deceased co-accused. He mobilized his brother and another member, and proceeded to the scene. Upon arrival, they found the deceased body lying outside the house of the deceased co-accused in a pool of blood. They called out and the deceased co-accused came out of the house accompanied by one, Fred. They thereafter waited at the scene until police officers arrived. 4.PW2 Benson Sindani Chesoni, a boda-boda operator at Lugulu market was approached by the co-accused who hired his motorcycle on the morning of 3rd April 2015 to use it between the hours of 8.00a.m and 4.00p.m of the same day and return it to him thereafter for a consideration of Kshs.800. However, he failed to return it as agreed but only did so the following day. PW3, Dr. Edward Muluvi Mulemba who had been called by the prosecution to testify on behalf of Dr. Nicholas Inwani and produce the post mortem prepared by the latter was stood down following objection by counsel for the appellant. PW4 Florence Karimi, a firearms examiner, confirmed through her report that the spent cartridges recovered at the scene had been fired from a G3 rifle issued to the appellant. PW5 Dr. Nicholas Inwani conducted the postmortem and confirmed multiple gunshot wounds on the body of the deceased, concluding that the cause of death was cardio- pulmonary arrest due to gunshot injuries. 5.PW6, Sgt ODK Omari, was dispatched to Mumias DO’s office by the DCIO, Shianda, for purposes of confirming if the appellant was actually working as an AP thereat. This was in relation to a murder incident that had occurred the previous night when the deceased was shot dead. He indeed confirmed that the appellant was an AP officer and was on night duty that day between the hours of 6.00p.m and 6.00a.m alongside APC Paul Mwaura, PW8. He had also been issued with a G3 rifle while PW8 was issued with an AK47 assault rifle. He collected the two firearms and thereafter prepared exhibits memo requesting ballistic analysis in respect of two spent cartridges. 6.PW7 PC Winfred Munyoki visited the scene of crime and recovered one live ammunition and two spent cartridges near the body of the deceased, which had visible gunshot injuries. She then arrested the deceased co-accused pending further investigations. PW8, APC Paul Mwaura was at the AP camp when the appellant came riding on a motorcycle registration number KMDE 979M ridden by co-accused. Together with the appellant, they were later assigned to guard the ministry of education offices in Mumias. However, as soon as they reported at their work station, PW8 proceeded to the boardroom leaving the appellant outside. He immediately fell asleep and did not see the appellant again until 5.00a.m the following morning. 7.In the course of the investigations, he was invited to a police identification parade to identify the rider of the motor cycle who had brought the appellant to the AP camp as well as the motor cycle itself. He was able to identify the co-accused as well as the motorcycle. PW9 S.Sgt. Douglas Chikanda, was the investigating officer. He confirmed that he was among the first police officers who visited the scene of crime. Whilst there he was handed two spent cartridges and one live one. He also drew the sketch plan of the scene. In the course of the investigations, he established that the appellant was an AP officer attached to Mumias AP camp and was a brother-in-law of the deceased. 8.He also established that there was a succession cause pending in the High Court of Kenya at Bungoma, being Succession Cause No 46 of 2014 involving the estate of William Mutali Itoli, deceased. The deceased co-accused was the widow of the deceased, whereas the appellant was a son to both the deceased and the deceased co-accused. On the other hand, the deceased was the wife of the appellant’s brother and a son to both the deceased co-accused as well as William Mutali Itoli. The Succession Cause involved the distribution of the estate late of William Mutali Itoli. The deceased had raised objections to the proceedings. 9.His further investigations disclosed that the appellant’s co-accused ferried the appellant from Mumias using the motor cycle he had hired from PW2. He tendered in evidence the Succession Cause file. He also caused the arrest of the appellant, the co-accused and the deceased co-accused and subsequently had them arraigned in court to answer to the information. PW10 CI John Nyangeresi Kibao tendered the police identification parade evidence conducted by IP Ngetich as the latter could not do so personally as he had been interdicted. The parade was in respect of the appellant’s co-accused and the identifying witness was PW8. The co-accused was identified by PW8 by touch. The co-accused signed the forms signifying that he was satisfied with the manner in which the parade had been conducted. PW 11, PC Machafu used to work with the appellant and also stayed in the same camp. On the eve of the incident, she saw the appellant being ferried into the camp by a boda-boda rider. 10.PW12 Sgt. Silas Wanjala Khamala, was the in charge of the armoury at the camp. He confirmed that he issued the appellant with the G3 rifle at 6.00p.m and 20 rounds of ammunition which were returned the following day at 6.00a.m intact. The last witness called by the prosecution was PW13, CPl Yohana Tanui who testified on behalf of Sgt Wechuli, who had retired and who had taken the photographs of the scene of crime as well as the motor cycle. He tendered in evidence those photographs. 11.Upon being placed on their defence, the appellant and co-accused elected to give sworn statements of defence without calling any witnesses. The appellant testified that the deceased was her sister in- law as she was a wife of her elder brother who had passed on. That on the day of incident, he was on duty throughout in Mumias West guarding various premises with APC Paul Mwaura. For this purpose, they were issued with a G3 rifle with 20 rounds of ammunition and AK47 assault rifle respectively. That no occasion arose that could have compelled him to use G3 rifle. Ultimately, he returned the rifle with all ammunition intact at 6.00a.m the following day to PW12. In essence he denied committing the offence. He added that he did not know the co-accused and saw him for the first time when they were arraigned in court together. He also saw the motor cycle for the first time when it was introduced in evidence in court. 12.On his part, the co-accused denied involvement in the offence, hiring a motorcycle from PW2, and ever ferrying the appellant as claimed. He instead stated that he was at home throughout the incident. 13.In its judgment, the trial court framed the central issues for determination as being first; whether the death of the deceased and the cause thereof was proved. In answer, it found that the death was not contested, and the post-mortem evidence by PW5 confirmed multiple gunshot wounds that shattered vital organs, leading to cardio- pulmonary arrest. The court therefore held that the death and the cause thereof was proved as required. 14.On the second issue, being whether it was the appellant and co- accused caused the death, the trial court acknowledged that no witness had directly seen the appellant and the co-accused commit the offence, and thus the prosecution had to rely on circumstantial evidence. It examined the chain of custody of the G3 rifle issued to the appellant, the ballistic report linking the spent cartridges recovered at the scene to that rifle, and the prevailing succession dispute between the deceased and the appellant’s family. It concluded that the G3 rifle was in the exclusive possession of the appellant during the material period and that the cartridges matched that weapon, thereby connecting him to the unlawful act. 15.On malice aforethought which was the third issue, it reasoned that the nature and location of the gunshot wounds which targeted vital organs such as the head, neck, and lungs, demonstrated clear intent to kill or otherwise cause grievous harm. It further noted that the succession dispute provided a motive, reinforcing the inference of malice aforethought. 16.The trial court then convicted the appellant of the information and sentenced him to 25 years imprisonment. However, the trial court acquitted the co-accused of the information for want of sufficient evidence linking him to the offence. 17.Aggrieved by the conviction and sentence, the appellant is before us on appeal on the grounds that, the trial court erred in law and fact in finding that the case against the appellant was proved beyond reasonable doubt; and in not considering the evidence adduced in its entirety and failing to appreciate his defence. 18.When the appeal came up for plenary hearing, the appellant was represented by Mr. Otieno D. teaming up with Mr. Muga Apondi, learned counsel, while the respondent was represented by Mr. Otieno E., learned Prosecution counsel. 19.In support of the appeal, both counsel for the appellant submitted that the trial court erred in convicting the appellant on the basis of circumstantial evidence which did not meet the legal threshold required. Counsel stressed that no direct evidence was adduced to link the appellant to the offence, and that the circumstantial evidence relied upon was weak and incapable of sustaining a conviction. They cited Abanga alias Onyango v Republic - Cr. App. No. 32 of 1990, Sawe v Republic [2003] eKLR, and Musili Tulo v Republic - Cr. App. No. 30 of 2013, in reiterating that circumstantial evidence must form a complete chain pointing unerringly to the accused and exclude any other reasonable hypothesis. They also challenged the alleged motive based on the existing succession cause between the parties, noting that no documentary evidence was tendered in evidence to prove the existence of such a dispute, and therefore malice aforethought was not established. 20.Counsel further submitted that the trial court misapprehended the evidence and failed to interrogate material contradictions in the prosecution’s case. In particular, they argued that the ballistic evidence was inconclusive, as the chain of custody of the G3 rifle and the cartridges was not properly established and was riddled with inconsistencies. They faulted the trial court for placing undue reliance on this evidence while disregarding the testimony of PW1, a first responder, who categorically stated that nothing was recovered at the scene except the deceased’s body and some clothes. Counsel further attacked the credibility of PW8, noting that the witness admitted to sleeping on the job. 21.They contended that the trial court erred in preferring PW8’s version of events over the appellant’s, despite PW8’s compromised credibility. They emphasized that the court’s inference that the appellant could have sneaked out of his work station, travelled nearly 100 kilometres to commit the offence, and returned undetected was speculative, implausible, and unsupported by any cogent evidence. They maintained that the appellant’s alibi was candid, consistent, and unshaken, and that the trial court failed to accord it the weight it deserved. In their view, the conviction was founded on mere suspicion and conjecture rather than proof beyond reasonable doubt. 22.Lastly, counsel submitted that the prosecution failed to prove the information of murder beyond reasonable doubt, and urged this Court to allow the appeal, quash the conviction and set aside the sentence of 25 years’ imprisonment. 23.Counsel for the respondent in opposition to the appeal, urged this Court to uphold both the conviction and sentence. Counsel submitted that although no witness directly saw the appellant commit the offence, the circumstantial evidence adduced was cogent, and satisfied the legal threshold laid down in Abanga alias Onyango v R (supra). Counsel further relied on Musili Tulo v Republic (supra) and Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, in reiterating that circumstantial evidence can be as probative as direct evidence if properly examined. Counsel highlighted that the appellant was in exclusive possession of the G3 rifle, and the ballistic expert confirmed that the cartridges recovered near the deceased’s body had been fired from that rifle. He argued that the appellant’s alibi was unsupported, as he failed to call any witness to corroborate his claim that he remained at his work station throughout the material night. 24.He also submitted that the nature of the gunshot wounds which were directed at the head and neck demonstrated malice aforethought within the meaning of Section 206 of the Penal Code. Citing Miller v Ministry of Pensions [1947] 2 All ER 372, counsel reminded the Court that proof of a criminal charge beyond reasonable doubt does not mean proof beyond all doubt, but rather a high degree of probability sufficient to exclude fanciful possibilities. In conclusion, counsel maintained that the prosecution had proved its case beyond reasonable doubt, and urged this Court to dismiss the appeal its entirety. 25.In discharging our mandate as a first appellate court, we will pay homage to the settled jurisdiction that it is our duty to re-reconsider and re-evaluate the evidence on record and draw our own independent conclusions, while bearing in mind that we neither saw nor heard the witnesses as they testified in the trial court and give due allowance for that. See Okeno v Republic [1972] EA 32. 26.With the above in mind, we surmise that three issues arise for determination in this appeal to wit whether; the conviction of the appellant based on circumstantial evidence was safe; the offence of murder was proved beyond reasonable doubt; and lastly, whether the trial court properly evaluated the appellant’s alibi defence. 27.There is no dispute that the evidence led against the appellant and upon which he was convicted was purely circumstantial to the extent that the prosecution did not adduce any direct evidence linking the murder of the deceased to the appellant. But as it has been stated time and again, that in itself does not render circumstantial evidence valueless, because, subject to satisfying well-known conditions, circumstantial evidence is as good as any other evidence and can prove a case with the accuracy of mathematics. At times it is deemed to be the best evidence ever. (See Musili Tulo v. Republic, (supra)). In Sawe v. Republic (supra), this Court stated that to pass the muster, circumstantial evidence must be incompatible with the innocence of the accused person and incapable of explanation upon any other reasonable hypothesis than that of his guilt and further that for circumstantial evidence to form the basis of a conviction, there must be no other existing circumstances which would weaken the chain of circumstances. Similarly, in the same case the Court cautioned that suspicion, however strong, cannot form the basis of a conviction. 28.In Abanga alias Onyango v Republic (supra), the Court held that the circumstances from which an inference of guilt is drawn must be cogently and firmly established, must point unerringly to the guilt of the accused, and cumulatively form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused and none else. 29.Upon our independent re-evaluation of the record, we note that the deceased was a sister in-law to the appellant and a daughter in law to the deceased co-accused, she was found dead outside the house of the deceased co-accused, had died from gunshot injuries fired from a G3 rifle, that spent cartridges and a live round were recovered at the scene, the ballistic expert confirmed that they were fired from the G3 rifle, that the G3 rifle had been issued to the appellant and that the G3 rifle was confirmed to have been in the appellant’s exclusive possession during the material period. Furthermore, there was evidence that on the morning of the fateful day, the co-accused hired motorcycle from PW2 for a day and was to return it in the evening but this was not to be. Instead, he returned it the following day and offered no explanation for the breach of the agreement. In the meantime, the co-accused was on the same day seen in Mumias with the same motorcycle he had hired from PW2 with the appellant as a pillion passenger. He was seen by the appellant’s workmates, PW8 and PW11. Although the co- accused feigned not knowing the appellant and his presence at the appellant’s work station, these are witness who were fellow Administration police officers with the appellant and had, nothing to gain by falsely testifying against the appellant. 30.It is therefore possible as correctly submitted by counsel for the respondent that the co-accused used this motor to ferry the appellant to and from the scene of crime. It matters not that the distance that may have been covered could have been 100 or so kilometres. It was not demonstrated by evidence which road was used if at all and whether there was only one route to the scene of crime. There may have been other shorter routes. There was no evidence of particular road used to and from the scene of crime. The other thread of circumstantial evidence was the fact that there was a succession cause pending in the High Court of Kenya at Bungoma at the time pitting the deceased against the appellant's family. 31.Although the appellant feigned ignorance of the same which was nonetheless disabused by the evidence of PW9 who indeed went ahead and tendered in evidence the Succession Cause court file being Succession Cause No 46 of 2014. This could have acted as the catalyst for the appellant to snuff out the life of the deceased. Ultimately, we are just like the trial court satisfied that the chain of circumstantial evidence was cogently established and pointed unerringly to the appellant. The circumstantial evidence met the legal threshold and was sufficient to sustain the conviction of the appellant. The assertion by the appellant, given the evidence of PW1 that no live or used ammunition was recovered at the scene of crime is neither here or there. He did not claim in his evidence that he was well versed in the field of searching and recovering spent or live cartridges. 32.As to whether the offence of murder was proved beyond reasonable doubt, the law requires that all the ingredients of murder be proved before a conviction is returned. Section 203 defines murder as the unlawful causing of death with malice aforethought, while Section 206 sets out the circumstances under which malice aforethought may be inferred. This Court in Nzuki v Republic [1993] KLR 171 emphasized that for a conviction of murder to stand, the prosecution must prove three essential elements: the fact of death and its cause; that the death was caused by an unlawful act or omission attributable to the accused; and lastly, that the author acted with malice aforethought in committing the offence. 33.On our re-evaluation of the record, the first ingredient, that is, the fact of death and its cause was not really contested. Indeed, the appellant conceded to this fact in his defence. Suffice to add however that PW1, PW7 and PW9 came face to face with the body of deceased at the scene whereas PW5 conducted the postmortem and confirmed that the deceased sustained multiple gunshot wounds to vital organs, including the head, neck, and lungs, leading to cardio-pulmonary arrest. In Republic v Tubere s/o Ochen [1945] 12 EACA 63, it was held that medical evidence was deemed sufficient to establish the death and its cause. 34.Regarding the second ingredient, we have already extensively addressed the issue when dealing with circumstantial evidence. Save to recap that PW7 recovered spent cartridges and a live round at the scene, and PW4, the ballistic expert, confirmed that these were fired from the G3 rifle issued to the appellant shortly before the fatal incident. PW12, the armourer, confirmed that the appellant was in exclusive possession of the rifle during the material period. Although the appellant contended that he returned the rifle with all ammunition intact, the forensic evidence and chain of custody linked the weapon to the crime. We note that PW8, admitted that he did not see the appellant between 9.30 p.m. and 5.00a.m., leaving room for movement by the appellant to and from the scene of crime. This evidence therefore places the appellant at the scene of crime. There is no doubt at all that the appellant committed the unlawful act. 35.On the third ingredient, the Court in Musili Tulo v Republic (supra) held that malice aforethought can be deduced from the weapon used, the manner of its use, and the part of the body targeted. Similarly, Section 206 of the Penal Code gives instances when malice aforethought can be inferred from the actions of an accused. In this case a gun was used in the killing of the deceased, Indeed the deceased sustained multiple gunshot wounds to vital organs, including the head and lungs, which demonstrated a clear intention to kill or cause grievous harm. The nature and location of the injuries alone sufficed to establish malice aforethought. This position is consistent with Republic v Tubere s/o Ochen, (supra) where the court held that malice aforethought may be inferred from the deliberate targeting of vital organs with a lethal weapon. 36.In the final analysis, we are satisfied that all the ingredients of the information were proved beyond reasonable doubt. 37.As to whether the trial court properly evaluated the appellant’s alibi defence, the law is settled that an alibi defence must be considered against the totality of the prosecution evidence. In Kiarie v Republic [1984] KLR 739, the Court held that if an alibi raises reasonable doubt, the accused is entitled to an acquittal. The appellant testified that he was on duty at Mumias throughout the material night and returned his rifle with all ammunition intact. PW8, however, admitted that he did not see the appellant between 9.30p.m. and 5.00a.m., leaving room for his movement to and from the scene of crime. 38.Indeed, there is evidence that the appellant’s co-accused had hired motorcycle on the morning of 3rd April 2015 from PW2 but failed to return it as agreed. This may well be the motor cycle that may have been used to ferry the appellant to and from the scene of the crime. The ballistic evidence and chain of custody of the rifle therefore outweighed the uncorroborated alibi defence advanced by the appellant. Given the foregoing, we can only conclude just like the trial court that the alibi defence did not raise reasonable doubt in the prosecution’s case and was therefore properly rejected. 39.Accordingly, we are satisfied that the conviction of the appellant was safe in law. As there was no appeal on sentence nor submissions made thereon, the same does not fall for our consideration. The appeal accordingly fails and is dismissed in its entirety. DATED AND DELIVERED AT KISUMU THIS 29TH DAY OF MAY, 2026.ASIKE-MAKHANDIA…………………….…….………JUDGE OF APPEALH. A. OMONDI………………………….………JUDGE OF APPEALL. KIMARU………………………….…….……JUDGE OF APPEALI certify that this is a true copy of the originalDEPUTY REGISTRAR