https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1221

Tonui v Republic (Criminal Appeal 25 of 2019) [2026] KECA 1221 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KECA 1221 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Criminal Appeal 25 of 2019 JM Mativo, PM Gachoka & BM Kairaria, JJA June 26, 2026 Between David Kiplangat Tonui Appellant and Republic Respondent (An appeal against conviction and sentence from the judgment of the High Court of Kenya at Kericho [Mumbi Ngugi J.] delivered on 24th October, 2018 in HCCR.A NO. 5 of 2011) Judgment 1.David Kiplangat Tonui (the Appellant) was arraigned before the High Court of Kenya at Kericho on 26th January 2011 in Criminal Case No. 5 of 2011 charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code[CAP 75 of the Laws of Kenya]. The particulars of the offence were that ‘’on the 24th day of January,2011 at about 6.00 A.M at Cheptenye village in Sosiot township in Kericho District within Rift Valley Province ,he murdered Edwin Kiprotich Langat. 2.The appellant pleaded not guilty to the charge on 30th March,2011 and the case proceeded to trial. The prosecution called nine witnesses who included PW2 Brian Kiptanui the only eye witness to the events leading to the death of the deceased; while the appellant gave sworn evidence and did not call any other witness in his defence. 3.Upon consideration of the prosecution case and the appellant’s defence the High Court[ Mumbi Ngugi J. (as she then was) in a judgement dated 24th October 2018, found that all the elements of the offence of murder had been proved against the appellant, because the appellant had been recognised by Brian[PW2] as the person who cut the deceased and he had malice aforethought given the nature of the injuries sustained by the deceased which consisted of multiple cut wounds on both sides of the neck involving fracture of the scalp bone, severing or near severing of the right ear and major blood vessels around the neck leading to massive bleeding. 4.The appellant’s evidence was that he left duty as a watchman at 6.00 A.m and was relieved by PW3[ Willy Kipkemoi Koskei].He then boarded a vehicle and headed to Kapsoit where he had a business of selling vegetables in his canteen;and while on his way to his canteen at Kapsoit , he got a call from Philip Kimutai Sang his vegetable supplier, who told him not to go to sell his vegetables but instead go into hiding because a large crowd of people had gathered looking for a Tanui who they said had killed someone on the road to Cheptenye but were not clear whether it was David Tanui. Upon getting that information he decided not to go Sosoit where he was being sought and instead went to report at Kericho police station where he was arrested and charged with the offence of murder. 5.The learned judge considered and discounted the appellant’s defence after weighing it against the eye witness evidence of PW2 who was definite that he had seen the appellant, who he referred to as ‘Baba Jeruto’, fight with and cut the deceased on that fateful morning as well as the evidence of other witnesses PW1 and PW3 who though not eye witnesses placed the appellant at the scene of the crime around the time when the sole eye witness testified he saw him fight and cut the deceased. Consequently, the judge found the appellant guilty of murdering Edwin Kiprotich Langat and convicted him of the offence of murder contrary to Section 203 as read with 204 of the Penal Code in a judgement delivered on 24th October,2023 and subsequently sentenced him to serve thirty[30] years imprisonment on 7th February,2019. 6.The appellant is dissatisfied with that decision and appeals to this Court against both conviction and sentence on four grounds set out in his memorandum of appeal dated 5th March,2026 . He contends that the learned judge erred in law and fact by:A.ignoring the cardinal principle in criminal procedure that the burden of proof lies on the prosecution and that it must prove each and every ingredient of the charge beyond any reasonable doubt ;B.holding that the prosecution proved its case beyond reasonable doubt while deciding the case against the weight of the evidence;C.ignoring material discrepancies in the evidence of PW2 thereby ignoring credible defence of the appellant andD.erred in law in her appreciation of the law applicable and the evidence adduced against the appellant in the circumstances of this case. 7.Based on those grounds the appellant urges us to either quash the conviction , set aside the sentence and set him at liberty or alternatively quash both the conviction for murder and the 30 year sentence and substitute therefore with conviction for manslaughter and a sentence of 10 years running from the day of his arrest. 8.At the hearing on 18th March 2026 M/S Matoke learned counsel appeared for the appellant and relied on written submissions dated 5th March,2026 in support of the appeal while Mr. A. J Omutelema learned Senior Assistant Director of Public Prosecution appeared for the respondent and relied on his written submissions dated 10th March 2026 in opposition to the appeal. 9.For the appellant it was submitted that the offence of murder was not proved beyond reasonable doubt for a variety of reasons. First counsel contended that the prosecution case rested primarily on the testimony of a single witness PW2,whose evidence was not sufficiently reliable and credible to sustain a conviction because ; he merely reported to PW1 that a person had been cut without disclosing the weapon used and that he had seen the person who had cut the deceased an omission which counsel for the appellant reckons strongly suggests that PW2 may not have seen the assault take place but may instead have found the deceased already dead. 10.Secondly, counsel submitted that Pw2 ‘s credibility was weakened by contradictions between his testimony and that of the other prosecution witnesses in particular PW1 and PW3 who testified that they got to know about the incident through PW2’s report to PW1 ,yet PW2 in cross-examination maintained that he only narrated to the police and his aunt PW5 and he never went to Cheptenye Boys School where PW1 and PW3 worked. Counsel stated that this creates a serious inconsistency as P1 and PW3 could not have known of the injured person without the matter first being reported to them and the logical inference is that PW2 informed them before the matter was escalated. 11.Thirdly, counsel for the appellant submitted that while there may be no reason to doubt that PW2 initially informed PW1 and PW3 that the deceased had been cut, the fact that he denied having done so demonstrates inconsistency in his testimony, which renders him an unreliable witness whose evidence ought to be treated with caution. In support of that proposition counsel relied on Njeru Vs Republic [Criminal Appeal No. 97 of 2014] [2025] KECA1096[KLR] where the Court stated that:“Granted, minor discrepancies in evidence are expected. However, in cases where conviction is based on identification by a single witness in unfavourable circumstances, a description of the appellant by that single witness in the first report is important. Not only does it show consistency and avoid the possibility of the witness making up a story, but it also demonstrates the witness’ ability to identify the appellant in those circumstances.’’ 12.In a rather turn about from his earlier submission where counsel asserted that the logical inference is that PW2 must have reported to PW1 and PW3 counsel submitted that if PW2 had truly witnessed the incident he would have disclosed the full details to PW1 and his failure to do so casts doubt on the truthfulness of his account and raises serious doubt as to whether it was the appellant who assaulted the deceased. 13.The appellant’s counsel further contended that there was inconsistency between PW2’s testimony and that of PW1 and PW3 in that while PW2 testified that the appellant and the deceased fought before the deceased was cut and fell down ; PW1 and PW3 testified that they did not hear any commotion or noise near the gate. 14.Counsel submitted that the appellant was not properly identified because PW2 did not describe the nature and source of light that enabled him to recognize the appellant as the assailant and the mere fact that PW2 told PW5 it was Baba Jeruto who had cut the deceased is not sufficient to eliminate the possibility of mistaken identity because even relatives may mistakenly identify another under poor lighting conditions. Counsel placed reliance on the dicta of this Court in Maitanyi Vs Republic [1986]eKLR which emphasized the need for caution when considering evidence of identification and asserted that in the instant case the prosecution failed to lead evidence regarding the nature ,intensity and position of the lighting without which the trial court could not properly test the reliability of the identification of the appellant. 15.On whether the prosecution had proved malice aforethought, counsel submitted that even assuming that the appellant was involved in the incident the prosecution still bore the burden of proving malice aforethought which it failed to do because it did not lead sufficient evidence ; a] of the weapon used to inflict the fatal injuries; and b] demonstrating premeditation or deliberate intention to cause death. 16.The appellant’s counsel further submitted that the judge did not properly evaluate the defence evidence and summarily rejected it primarily because the court believed the evidence of PW2 which in counsel’s view was riddled with contradictions, inconsistencies and doubts which ought to have been resolved in his favor. 17.Based on those submissions counsel urged us to either quash the conviction, set aside the sentence and set the appellant at liberty or alternatively set aside the conviction and sentence for murder and substitute it with a conviction for manslaughter with a sentence of ten years running from the date of the appellant’s arrest. 18.In response, Mr. Omutelema relied on his written submissions and submitted that; a] the evidence adduced by the prosecution proved all the ingredients of the offence of murder set out in Section 203 of the Penal Code against the appellant beyond any reasonable doubt; b] the prosecution case against the appellant is based on the direct evidence of Brian Kipkirui PW2 who testified that he witnessed the incident while on his way to school when he saw the appellant whom he recognised as Baba Jeruto fight with and cut the deceased; that evidence was confirmed by Mercy Chepngeno Too PW5 who testified that PW2 informed her that he had seen Baba Jeruto cut another person and she knew PW2 was talking about David Kiplagat Tanui whom she knew well as a relative and a security guard at Cheptenye Boys; c] the judge properly and correctly considered the evidence of identification with the greatest care and properly found that the appellant was properly recognized by PW2 as the person who had cut the deceased and was satisfied that it was possible for PW2 could see and recognise someone that he knew well from a distance of 20 or 30 or even 50 metres in the morning.; d] further there was no suggestion that the appellant had a grudge with the family of PW2 and no reason was advanced that would colour the evidence of PW2 and make it unreliable. 19.The respondent’s Counsel further submitted that the evidence tendered left no doubt that the appellant cut the deceased several times ,leading to his death and the learned trial judge correctly applied the legal principles applicable to identification by recognition as enunciated in Anjononi & Others Vs Republic [1980] KLR 59 and identification by a single witness as pronounced in Maitanyi Vs Republic [1986] eKLR before finding that the appellant had been properly identified as the person who inflicted the injuries on the deceased. 20.On whether the injuries inflicted led to the death of the deceased counsel submitted that the post mortem examination confirmed that the death of the deceased was the result of the fatal assault by the appellant and the learned trial judge considered the issue and correctly observed that the deceased had multiple cut wounds on the neck ,involving the scalp bone and blood vessels. 21.Counsel submitted that malice aforethought within the parameters set in section 206 of the Penal Code was inferable from the conduct of the appellant and the prosecution had proved that element by the combined evidence of PW2 who testified that he saw the appellant cut the deceased and the post mortem examination report on the deceased’s body which showed multiple severe cut injuries on the deceased’s neck demonstrating that the appellant repeatedly assaulted the deceased with a sharp object, which left no doubt about the appellant’s intention. 22.On the issue of credibility PW2 counsel submitted that the trial court was better placed than this Court to assess the credibility of witnesses as observed in Joseph Kariuki Ndung’u & Another Vs Republic [2010] eKLR; the trial court addressed the issue in detail, considered PW2 had given detailed and unchallenged evidence about how he saw the appellant cut the deceased on that fateful morning on his way to school and in the end rightly concluded he was truthful and there was no suggestion by the defence that there was any grudge and no reason was advanced to colour his evidence. 23.It was further submitted that the trial judge considered the appellant’s defence together with other evidence and rightly rejected the appellant’s account which did not displace the evidence of PW2 who correctly recognized him at the scene and reported to PW 5 soon after the incident . Counsel referred us to the analysis of the defence evidence and the findings made by the judge in the impugned judgement;“What of the defence of the accused that he had heard while on his way to Kapsoit that people were looking for a Tanui and that it was not clear whether they were looking for him or one David Tanui? The evidence of PW2 as I have stated above, was clear that he had seen the accused, baba Jeruto,fight and cut the deceased. He was not in doubt about the person he had seen. While there were two security guards at Cheptenye Boys known as Tanui, only one, the accused, had been seen in confrontation with the deceased that led to the deceased’s death.’’ 24.On the issue of sentence, counsel submitted that the trial court considered the appellant’s mitigation and a social inquiry report before imposing the thirty [30] year sentence because there were aggravating factors including the use of a sharp weapon, and repeated vicious attack on the deceased’s neck justifying the imposition of a severe sentence . Counsel concluded by submitting that the assault leading to death was unwarranted, with aggravating circumstances and urged us to uphold conviction and sentence. 25.This being a first appeal our duty consistent with our mandate under section 379 of the Criminal Procedure Code is to retry or rehear the case by conducting a complete re- evaluation and analysis of the evidence tendered before the trial court and to reach our own conclusions of law and fact while keeping in mind the fact that unlike the trial court we did not have the opportunity to hear and observe the witnesses and gauge their demeanour and we must of necessity give allowance to that fact in determining the present appeal. [See Peters Vs Sunday Post ltd[1958] EA 428, Selle & Ano. Vs Associated Motor Boat Company ltd & Others [1968] 1 EA ] and Gitobu Imanyara & 2 Others Vs Attorney General [2016]. 26.The principal question that falls for determination in this appeal is whether or not the appellant was lawfully convicted and correctly sentenced to serve 30 years imprisonment for the murder of Edwin Kiprotich Langat on the fateful morning of 24th January,2011. On the one hand the appellant has contended that the prosecution did not prove the offence of murder beyond reasonable doubt as they were by law bound to do and faulted the judge for believing and relying on the evidence of Pw2 a single eye witness whose evidence was riddled with contradictions and inconsistencies and wrongly rejected the appellant’s defence . On the other hand the respondent has countered that the prosecution’s evidence at the trial proved beyond reasonable doubt that the appellant caused the death of the deceased with malice aforethought and the judge correctly evaluated and weighed the prosecution evidence against the defence evidence and correctly found the appellant culpable of the offence of murder. 27.From our evaluation and reconsideration of the record there is no dispute that the death of Edwin Langat occurred on 24th January,2025. There is also no dispute that the cause of death was not natural but through an unlawful act of another person who repeatedly and viciously assaulted him on both sides of his neck with a sharp object. What is in dispute is whether the appellant was responsible for the death of Edwin Langat and if he did it with malice aforethought. The trial court found that appellant was responsible for the death of Langat who was his workmate at Cheptenye Boys School and that he caused that death with malice aforethought. 28.The appellant has invited us to interfere with that decision of the trial court because: according to him the prosecution did not prove the case against beyond reasonable doubt ; he was not properly identified as the person who caused the death of the deceased ; the judge rejected his defence summarily and convicted him solely on the unreliable; and contradictory evidence of PW2. On our part and upon our re- evaluation of the entire record we are unable to agree with the appellant that the learned judge erred in law or fact when she convicted and sentenced him to serve 30 years imprisonment. 29.The Appellant’s principal complaint is that he was convicted on the basis of unreliable identification evidence by a single eyewitness, PW2 Brian Kipkirui, which was riddled with inconsistencies, and that the judge wrongly rejected his reliable evidence. From the record, PW2 testified on 6/7/2015 and the record of his evidence is at pages 30 and 31 in the typed proceedings. He is recorded stating as follows:“I am Brian Kipkirui. I am aged 15 years. I go to Kapsuer Primary School. I recall on 24/1/2011 morning, as i was going to school at 6.30 a.m, I was following a person. I did not know the person but he was a man. Then I saw a person come from Cheptenye Boys. When they met i.e the person I followed and the one from the school was Baba Jeruto, when they met they fought and baba Jeruto cut this other man. Baba Jeruto is here in court.[witness points at the accused].When I saw this I retreated and hid near Cheptenye Primary. When the accused went away, I ran to school but first went to Mercy’s [PW5]. I told her about the person who had been cut near the school. I told her it was baba Jeruto who had cut someone. I then went to school.’’ 30.And upon cross examination by Mr. Orina he stated:“I go to Kapsuer Primary School. I am in standard 7.In 2011, I was at Greenview Academy. The uniform of the academy was red sweater, green shirt and black shorts. That is what I wore that day. It was a cold day. I could not see very far. The person I followed was about 20-30m from me. This person did not know that I followed him. It was a big road. He had not looked behind. I cannot recall what he wore. I did not see what he carried. The person from the school was about 50m away. I could not identify him from that distance. As he came and I walked in that direction, I knew it was a person. When I saw him cut the other one, I was about 20m. I saw him hit the other one who fell down. When they met they fought. It was a dark morning. I saw them hit each other. They did not talk to each other. It took about 5 minutes. After hitting him, he ran away. This was near Cheptenge Boys. It was near the gate. There was no one else at the gate. The police told me I saw the people fighting. It is not true that I was told that the accused is the suspect. The officer told me to write what I saw. He never read to me what he had written. He went with the statement. I cannot recall when I recorded the statement. He came to the school. It was 9.00 am. He did not tell me his name. He took about 3 minutes with me. I told him about baba Jeruto. Besides Mercy and the police officer I did not tell anyone else about this. I never went to Cheptenge Boys that day. I do not lie. I knew one of those fighting, I never heard them talking.” 31.Upon re-examination PW2 stated:“I was in standard 4 in 2011. I saw the accused cutting a person. I never went to seek for help at the secondary school.” 32.We have carefully examined the evidence of PW2.We do not see any contradictions or inconsistencies in PW2 ‘s evidence as reproduced above at all and what the appellant regard as contradictions between the evidence of PW2 on the one hand and that of P1 and PW3 on the other hand are not contradictions at all. The contention by the appellant that PW2 must be the person who first informed PW1 that there was a person who had been cut outside Cheptenye Boys School gate and therefore PW2 ‘s denial that he went to that school that morning and that he first related the incident to PW5 [Mercy his aunt] before going to Greenview Academy and later to the Police officer who recorded his statement at the school at 9.00 AM that day cast Pw2 as unreliable and untruthful witness is in our view borne out of a misapprehension of the evidence by the appellant. 33.To start with, neither PW1 nor PW3 testified that they got the report that a person had been cut from PW2. PW1’s evidence was that the primary school boy who came looking for the watchman [PW3] and who told him that ‘’there was someone outside the gate who had been cut ‘’ wore a uniform of Cheptenye Primary [ checked shirt ,blue sweater and blue shirt]. From the record PW2 was not a pupil at Cheptenye primary at the time of the incident or indeed at any other time at all. When he gave evidence before the trial court in 2015 he was in class 7 at Kapsuer Primary . His evidence is that when the incident occurred on 24th January 2011 he was in class four [4] at Greenview Academy and he was wearing the uniform of the academy -Red sweater ,Green Shirt and black shorts. That evidence was confirmed by PW5 who upon cross-examination by Mr. Orina for the Appellant stated: ‘’Brian was schooling at Greenview Academy. It is different from Cheptenye Primary School.’’ 34.The learned judge found that the appellant was correctly and properly recognized by PW2 as baba Jeruto who cut the deceased and inflicted the brutal cut wounds in the neck involving the scalp bone and major blood vessels. We agree with the judge that this was a case of recognition and the authorities are clear that ‘’evidence of recognition is stronger than that of identification because recognition of someone known to one is more reliable than recognition of a stranger’’ [See John Murithi Nyaga Vs Republic[2014] eKLR]. However the court is under a duty to weigh that evidence with the greatest care when the evidence is of a single witness and to satisfy itself that in all circumstances it is safe to act on such evidence.[See Warunga vs Republic [1989] KLR 424 where the Court of Appeal held at page 426 that-:‘’ It is trite law that where the only evidence against a defendant is evidence of identification or recognition ,a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favorable and free from possibility of error before it can safely make it the basis of conviction.’’ 35.There is no doubt that the judge proceeded with the greatest care and satisfied herself that it was safe to act on the evidence of PW2 and no miscarriage of justice was occasioned to the appellant. In this regard the judge stated as follows in the judgement:“40.In this case, PW2, Brian Kipirui, had been on his way to school at about 6.00-6.30 a.m. He had been walking behind someone. He had then seen the accused, whom he knew as Baba Jeruto, coming out of Cheptenye Boys. Baba Jeruto and the man whom Brian had been walking behind had fought, then Baba Jeruto cut the man. Brian had told his aunt, Mercy Chepngeno, about the incident before going to school.41.The question is whether this evidence of recognition by PW2 is safe and is sufficient to base a conviction on, his being the only evidence that links the accused with the death of the deceased.42.The murder of the deceased in this case took place in the morning of 24th January 2011. The accused had left duty, and was seen to leave by his colleagues. He was seen by PW2 coming out of the school, getting into a fight and then cutting the deceased, whom PW2 did not know. The act of cutting the deceased so terrified the young boy that he first hid, then when the accused went away, emerged from his hiding place and went to tell his aunt, PW5, about the incident. His aunt did not believe him because of his age.43.From the evidence of PW5, Mercy Chepngeno, her sister, Brian’s mother, was married to the accused ‘s brother. They all lived in the same compound. PW2 knew the accused well. He had seen him come out of the school, meet with the deceased fight and then cut the deceased. Quite prudently, PW2 hid when he saw the accused cut the deceased, but reported to an adult immediately thereafter.’’ 36.In the instant appeal the Appellant has contended that PW2 could very well have been mistaken about the identity of the person who assaulted the deceased because the prosecution did not lead evidence as to the source of light and how long PW2 had known him. We do not think that PW2 was mistaken at all. The incident occurred in the morning at between 6.00 am and 6. 30 am. The source of light at that hour of dawn is sunlight. PW2 stated that the point the appellant and the deceased met and the appellant cut the deceased he PW2 was about 20 m from them. 37.On the question of malice aforethought,we are also satisfied that the trial court was right in concluding from the severity of the multiple cut wounds inflicted on the neck of the deceased and detailed in the post mortem report ‘’that the person who wielded the weapon that caused these injuries had no intention that the deceased should live’’ and ‘’had malice aforethought.’’ There is authority [Rex Vs Tubere S/O Ochen [1945] 12 EACA] that malice aforethought can be inferred from the nature of the injuries inflicted on the deceased, the part of the body targeted ,the weapon used and the manner of inflicting the injury. In the instant case PW7 Dr. Geogina Lasoi presented medical evidence in respect of the death of the deceased and produced the post mortem report [Exhibit1] prepared by Dr. Chepngetich Risper who had performed the post mortem examination of the deceased’s body which indicated that the deceased had ‘’ multiple cuts wounds on the neck; a cut wound on the right side of the neck measuring 18 x6x4cm involving the scalp bones and great vessels; the right ear was dislocated; cut wounds on the left side of the neck ; the heart was normal but empty meaning that all the blood had flowed out’’ and the doctor formed the opinion that the cause of death was ‘’cardio-pulmonary arrest that was secondary to hypovolemic shock caused by multiple fractures and cut wounds that involved the major blood vessels around the neck’. 38.In light of the clear and objective medical evidence that the injuries inflicted were severe and multiple targeted at the neck and involving great blood vessels the fact that the prosecution did not produce the weapon that was used did not in our affect the finding that the appellant acted with malice aforethought. 39.We are therefore satisfied that all the elements of murder were proved against the appellant beyond reasonable doubt. The conviction was safe and we find no reason whatsoever to interfere with the learned judge’s finding of guilt for the offence of murder. 40.Regarding sentence we have not found any evidential basis for us to substitute the conviction for murder with one for manslaughter and reduce the sentence imposed by the trial court from 30 years to ten years as urged by the Appellant. 41.In the upshot, we come to the conclusion that the appellant’s appeal on both conviction and sentence is devoid of merits and is hereby dismissed. DATED AND DELIVERED AT NAKURU THIS 26TH DAY OF JUNE, 2026J. 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