https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1504

Ngiro v Republic (Criminal Appeal E191 of 2022) [2026] KECA 1504 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KECA 1504 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Criminal Appeal E191 of 2022 PM Gachoka, WK Korir & L Ndolo, JJA July 24, 2026 Between Daudi Mnangat Ngiro Appellant and Republic Respondent (Appeal arising from the Judgment of the High Court of Kenya at Kapenguria (R. Sitati, J.) delivered on 31st October 2018 in HCCRC No. 12 of 2017) Judgment 1.Daudi Mnangat Ngiro, the appellant in this appeal, was charged in Kapenguria High Court Criminal Case No. 12 of 2017, with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence were that on 1st November 2017 at Kishaunet Location in West Pokot Sub-County within West Pokot County, he murdered Tukei Napetot. 2.On 7th November 2017, the appellant pleaded ‘not guilty’. The case proceeded for trial on diverse dates between February and October 2018 and by a judgment dated 31st October 2018, the appellant was convicted and sentenced to life imprisonment. 3.The appellant now appeals against both conviction and sentence. In his memorandum of appeal filed on 13th December 2018, he complains that the trial court relied on uncorroborated and fabricated evidence, while rejecting his defence. The appellant takes issue with the fact that the witnesses were from the same family. 4.In addition, the appellant’s counsel, Mr. Oyaro filed supplementary grounds of appeal together with submissions dated 15th May 2026. The supplementary grounds may be categorized under four limbs namely: that the prosecution evidence was contradictory, inconsistent and unreliable; that the prosecution failed to call Emmanuel Kapcholo, a crucial witness; that the trial court disregarded the appellant’s defence without assigning sufficient reasons; and that the sentence imposed on the appellant was harsh and excessive. 5.This being a first appeal, we are guided by the decision in Okeno vs Republic [1972] EA 32 where the duty of a first appellate court was set out as follows:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v R [1957] EA 366) 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 (Shantilal M. Ruwala v R [1957] EA 570). It is not the function of a 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 draw its own conclusions. Only then can it decide whether the…findings should be supported. In doing so it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses…” 6.At the trial, the prosecution called eight (8) witnesses. Its case was that on 1st November 2017, Enock Kibet (PW1), Boniface Kiptum (PW2), Grace Chemutai (PW5) and Irene Chepkobus Tukei (PW7), all siblings, were at home with their father, the deceased, when the appellant came to the compound. The deceased was seated on a bench outside the house. 7.PW1, PW2, PW5 and PW7 testified that the appellant was their neighbour and that they heard him greet the deceased. PW1 told the trial court that immediately after the greeting, he heard someone being beaten; on stepping out to check, he saw the appellant striking the deceased with a club. The appellant chased PW1 towards the gate before escaping, and when PW1 came back, he found the deceased lying on the ground unconscious. 8.PW2 testified that he heard the appellant greeting the deceased and on hearing some commotion, he stepped out and saw the appellant chasing PW1 with a club, while running away. 9.PW5 was at home together with PW1, PW2, and PW7. She was making tea when she heard a loud bang and when she stepped out, she saw the deceased on the bench holding his head. The deceased was bleeding from the nose and mouth, prompting her to scream. She also followed the appellant who was chasing PW1 and PW2. She saw the appellant with a club the size of an arm’s length trying to hit PW7 before running away. PW7 saw the appellant hitting the deceased with a club four times and when she and PW1 went to assist the deceased, they were chased away by the appellant. 10.Jackton Kemei, another son of the deceased testified as PW3. He stated that he was at a neighbour’s house (Limareng) and the appellant found him there. The appellant informed PW3 that he was going to beat one Emmanuel Kapcholo with whom he had had an altercation the previous day. PW3 tried to dissuade the appellant from engaging in a fight but shortly thereafter he heard screams coming from their homestead and he rushed home where he found the deceased injured. PW3 had seen the appellant with a club. 11.Andrew Lapetot a brother of the deceased testified as PW4. He was notified by one Mathew Lotino that his brother had been murdered in Kishaunet. He proceeded to Kapenguria mortuary where he identified the body of the deceased for postmortem examination. 12.PW6 was Dr. Jotham Mukhela from Kapenguria County Referral Hospital. He performed a postmortem examination on the body of the deceased. He presented the postmortem report dated 1st November 2017, showing the injuries suffered by the deceased, which caused his death. The cause of death was recorded as severe intracranial hemorrhage as a result of blunt head trauma. 13.The investigation officer was Cpl. Richard Simiyu (PW8). Upon being notified of the murder, he and his colleagues went to the home of the deceased. They found the body lying on the ground and they moved it to Kapenguria County Referral Hospital for postmortem examination. While at the hospital the police officers received information that the appellant had presented himself at Kapenguria Police Station. The appellant is said to have admitted having murdered the deceased because he was a witch; he led the police to where he had left the murder weapon, a club, which was produced as an exhibit. 14.When put on his defence, the appellant gave an unsworn statement, denying the offence. He testified that on the date he was alleged to have murdered the deceased, he woke up in the morning and went to buy sugar but on reaching the shop he did not find the shopkeeper. He took a path bypassing the deceased’s gate. According to the appellant, as he was talking to the deceased, PW1 and PW2 emerged from the house quarrelling. He claimed that PW2 aimed a stick at PW1 who had taken cover behind the deceased. 15.The appellant further testified that he left the deceased settling down but PW1 and PW2 later went to his home, armed with a panga and a club, threatening to kill him. They alleged that the appellant had beaten their father and as a result, the appellant ran away. He went to make a report at the police station, where he found the deceased’s daughter who claimed that the appellant had murdered the deceased. 16.The offence of murder is defined in section 203 of the Penal Code as follows:203.Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. 17.From the foregoing definition, the ingredients of a charge of murder are; the fact of death, the cause of death, proof that the deceased died as a result of an unlawful act or omission by the accused, and malice aforethought on the part of the accused. 18.With regard to malice aforethought, section 206 of the Penal Code provides as follows:206.Malice aforethoughtMalice 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. 19.It was submitted on behalf of the appellant that there were material contradictions in the testimonies of the prosecution witnesses. In advancing this argument, learned counsel for the appellant, Mr. Oyaro pointed to some minor details regarding the exact location of the widow of the deceased within the homestead and the sequence of attack on the deceased. We have considered these differences, which in our view, are minor and would be expected in recounting a traumatic event of murder. Considering the sequence of events, the witnesses may not necessarily give the same narrative. What is key is whether their evidence is consistent in key particulars. In this appeal, the differences or inconsistencies pointed out by the appellant are insignificant and did not in any way dent the prosecution case. 20.The appellant himself relied on the persuasive decision in Miller vs Minister of Pensions [1947] 2 All ER 372 where it was held that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. 21.We have set out in detail the evidence adduced by the prosecution. The evidence not only placed the appellant at the scene of crime but he was also positively identified as the assailant. He was a neighbour to the deceased and his family and was well known to the children of the deceased, who witnessed the fatal attack on their father. This was therefore a case of recognition, which ranks higher than identification of a stranger. 22.In distinguishing recognition from identification, Madan JA in Anjononi & Others vs Republic [1980] KLR stated thus:“…recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.” 23.The appellant claims that he was convicted on uncorroborated and fabricated evidence. We disagree; in the foregoing part of this judgment, we have summarised the extensive evidence adduced by the prosecution. There were at least four (4) eyewitnesses who saw the deceased being hit by the appellant. The attack on the deceased by the appellant, which led to his death, was witnessed first-hand by PW1, PW2, PW5 and PW7 who were present at the scene at the time of the murder. The trial court, which had the opportunity to observe the demeanour of the witnesses found their testimony trustworthy, and we have no reason to depart from the finding of the trial court in this regard. The trial court found, and we affirm, that the appellant walked into the deceased’s compound, exchanged greetings before hitting the deceased. 24.The consistent testimony of the witnesses presented by the prosecution not only placed the appellant at the scene of crime but also positively identified him as the assailant who clobbered the deceased to death. Of significance, the attack happened in the morning hours in broad daylight. The postmortem report confirmed the cause of death as severe intracranial hemorrhage caused by blunt force trauma. This finding was consistent with the nature of attack leading to the demise of the deceased. 25.In our view, the fact that the eyewitnesses were close family members of the deceased, did not in any way, dent their credibility. Additionally, the doctor who performed the postmortem examination on the body of the deceased confirmed that the death was caused by blunt force, consistent with what would be caused by the club used by the appellant. 26.In determining whether the appellant acted with malice aforethought, the trial court relied on section 206 of the Penal Code which defines the circumstances under which malice aforethought may be established and observed that the prosecution needed to establish only one of these circumstances. 27.From the evidence on record, the appellant arrived at the home of the deceased armed with a club which he used to hit the deceased and when the children of the deceased attempted to rescue their father, the appellant chased them away. Like the trial court, we find that the appellant’s action of hitting the deceased more than once clearly revealed his intention to kill him. 28.Regarding the ground that the prosecution failed to call Emmanuel Kapcholo, who was said to have had an earlier altercation with the appellant, we note that section 143 of the Evidence Act allows the prosecution to determine the witnesses to call in any particular case. This Court in its decision in Mwangi vs Republic [1984] KLR 595 stated that:“Whether a witness should be called by the prosecution is a matter within the discretion of the prosecution and the court will not interfere with that discretion unless it may be shown that the prosecution was influenced by some oblique motive.” 29.We find nothing to suggest any oblique motive on the part of the prosecution, by leaving out Emmanuel Kapcholo from the list of prosecution witnesses. Having re-evaluated the prosecution evidence, we find that this omission did not affect the prosecution case, which in our view was watertight. 30.The appellant further complains that the murder weapon was not subjected to forensic examination in order to link him to the murder. In our view, this is a feeble ground because there was evidence that the appellant himself led police officers to recover the murder weapon. The appellant did not deny this crucial part of prosecution evidence and the lack of forensic examination did not materially affect the prosecution case. 31.The appellant also complains that his defence was not taken into account. However, the judgment of the trial court reveals otherwise; the record is evident that the learned trial Judge considered the appellant’s defence weighed against the evidence adduced by the prosecution and rejected it. Upon re-evaluation of the evidence, we also reject the appellant’s defence and affirm the finding of guilt reached by the trial court. The conviction was safe and we have no reason to interfere with it. 32.Finally, the appellant submits that the sentence of life imprisonment imposed by the trial court was manifestly harsh and excessive in the circumstances of the case. Our examination of the record reveals that in sentencing the appellant to life imprisonment, the learned trial Judge observed that the appellant was not remorseful for the offence. The Judge further took into account the brutal manner in which the appellant killed the deceased. 33.The principles that guide interference with a sentence passed by a trial court are well established. In its decision in Gacheru vs Republic [2002] KECA 94 (KLR) this Court stated the following:“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence, unless any one of the matters already stated is shown to exist.” 34.In the present appeal, no factor exists that could lead us to interfere with the sentence imposed by the learned trial Judge. 35.In the result, the appeal fails on both conviction and sentence and is thus dismissed in its entirety. DATED AND DELIVERED AT ELDORET THIS 24TH DAY OF JULY, 2026.M. GACHOKA C.Arb, FCIArb…………………………………JUDGE OF APPEALW. KORIR…………………………………JUDGE OF APPEALL.M. NDOLO…………………………………JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR