https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1005

Nyawira v Republic (Criminal Appeal 41 of 2019) [2026] KECA 1005 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KECA 1005 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Criminal Appeal 41 of 2019 S ole Kantai, M Ngugi & A Ali-Aroni, JJA May 29, 2026 Between Dishon Macharia Nyawira Appellant and Republic Respondent (Being an appeal against the judgment of the High Court of Kenya at Nyeri (Ngaah, J.) dated 8th March 2019 in HCCR No. 47 of 2008 Criminal Case 47 of 2008 ) Judgment 1.The appellant, Dishon Macharia Nyawira, was charged with and convicted of the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The victim of the offence was his mother, Selipha Nyawira Macharia, while the eye witness, who also sustained grievous injuries, was his sister, Gladys Njeri Nyawira (Gladys). 2.These tragic events occurred at about 7.00p.m on the night of 19th July 2008 at Kangemi village in Nyeri County. Gladys (PW1), was at home when the deceased knocked on the gate. When Gladys opened the gate, the deceased noticed that some timber was missing from the fence separating her house and that of the appellant. She went to ask him who had removed the timber while Gladys went back to their kitchen. While in the kitchen, Gladys heard the deceased scream and say in Kikuyu “He has killed me.” She rushed to the appellant’s room where she found their mother lying on the floor, groaning in pain. Gladys started screaming while trying to pull their mother away. The appellant, who was armed with a panga, ordered her to stop screaming. When she did not, he cut her on the head and body, and she started bleeding. She crawled from the room and hid in another room. Neighbours responded to her screams and came and took her and her mother to the hospital. They were both admitted at the Karatina District Hospital before she was transferred, after two days, to the Provincial General Hospital in Nyeri, where she was admitted for ten days. She was informed while at the hospital that her mother had succumbed to her injuries. 3.Maina Mwangi Muriuki (PW2) was a neighbour of the deceased. He heard someone screaming from the deceased’s home that “Macharia has killed us.” As he was going towards the deceased’s home, the appellant came towards him carrying a bag, with the panga inside. The appellant handed over the panga to PW2 without a struggle. 4.On entering the appellant’s room, PW2 found the deceased lying in a pool of blood. PW2 and others took the deceased and Gladys first to the police station and then to hospital. He took the panga that the appellant gave him to the police station. 5.Another neighbour, Gilbert Mwaniki (PW3) also rushed to the home of the deceased when he heard that there was a commotion. He found people holding the appellant outside the gate. He also heard Gladys (PW1) screaming for help. He found the deceased lying in a pool of blood in the appellant’s room. He assisted PW1 to PW2’s car, and the deceased and PW1 were taken to hospital. PW3 further testified that he found neighbours beating the appellant and he prevailed upon them to stop beating him. The appellant was taken to the police station. 6.PW4, Sospeter Mwangi Macharia, a brother of the deceased and an uncle of the appellant, visited his sister while she was admitted in hospital and she told him that the appellant had cut her. He attended the post-mortem conducted after her death. 7.The testimony of PW5, No. xxxxx PC Jared Musungo Oucho, was that he was at a roadblock with other officers in Jambo area when a vehicle was driven by on the 19th of July 2008. The driver stopped and informed him what had happened to the deceased and PW1, who were in the vehicle. The deceased and PW1 were taken to hospital. Thereafter, PW5 met the appellant, tied with ropes, being escorted by a group of about 15 people who had arrested him and were beating him. PW5 and the officers arrested the appellant, who was then taken to the police station. 8.The post-mortem on the deceased was conducted by PW6, Dr. Kimathi Paul, a medical officer attached to the Karatina Sub- County Hospital, who also produced the report at the trial. Dr. Kimathi observed that three of the deceased’s fingers on the left hand had been amputated in the attack, and she had multiple skull fractures and a compound fracture of the left forearm. He stated that the cause of death was cardio-pulmonary arrest due to severe head injury and multiple skull fractures. 9.PW7, Dr. Gor Causi Kutikumar, presented a psychiatrist’s report on the appellant which had been prepared by Dr. Owino, who was deceased at the time of the trial. The report indicated that the psychiatric analysis was done on 21st August 2008, and the opinion formed was that the appellant was lucid and fit to plead to the charges against him. 10.PW5, No. xxxxx PC Daniel Musongo Oucho, was recalled to produce a report prepared by his colleague, PC Wilfred Masika, who was deceased at the time of the trial. The report indicated various items that had been taken from the scene of the attack on the deceased. The statement listed a panga, a ‘baret’, and a jacket which had been taken to the police station following the incident. The panga was produced in evidence. 11.When placed on his defence, the appellant gave a sworn statement but did not call any witnesses. He stated that he used to do business in Kinamba, Laikipia; that on the material day, he was called by his neighbour, Maina Macharia, who told him that his mother, the deceased, had been injured by iron sheets which had fallen on her at a hardware in Karatina. He went to Karatina where he found police officers waiting for him, and he was arrested and charged with the offence. He alleged that his sister, PW1, had lied to the trial court as she wanted to inherit their mother’s property alone. He further alleged that all the prosecution witnesses had lied to the court. He stated in cross-examination that it would take three hours or so to reach Karatina from Kinamba; that he was called at 4pm and arrived at 7.30 pm; and that he was arrested when he arrived. 12.Upon considering the prosecution evidence and the appellant’s defence, the trial court found that all the elements of the offence of murder had been established against the appellant, and it convicted him of the said offence in the judgment dated 8th March 2019. 13.In sentencing the appellant, the trial court noted that to kill one’s mother is unforgivable; and notwithstanding the decision of the Supreme Court in Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2017] KESC 2 (KLR) (14 December 2017) (Judgment), it found that the heinous murder of his mother by the appellant merited the death sentence, to which it proceeded to sentence him. 14.The appellant is now before us on appeal. In his memorandum of appeal dated 12th March 2019, the appellant impugns the decision of the trial court on four grounds which, summarised and paraphrased for clarity, are that: the trial court erred in law and fact in convicting him and failing to consider that he is mentally challenged, and thus section 11 and 12 of the Penal Code was not complied with before trial; erred in law and fact in convicting him without considering that section 206 of the Penal Code was not complied with; accepting the prosecution evidence while the evidence on the murder weapon was left in doubt; and in rejecting the appellant’s defence which was not displaced by the prosecution evidence. 15.At the hearing of the appeal on 12th November 2025, learned counsel, Mr. Mwendwa Tyson, appeared for the appellant while learned Senior Assistant Director of Public Prosecutions, Mr. Naulikha, appeared for the respondent. Counsel elected to rely on their written submissions, dated 8th September 2025 and 17th November 2025 respectively, without oral highlights. 16.In his written submissions, the appellant addresses the Court on only one ground, which appears to be a paraphrasing of his fourth ground of appeal, namely that the trial court erred in the evaluation of the evidence and ‘rejected the appellant’s defence which was not displaced’. The appellant submits that:“PW1 was the only eye witness that placed the appellant herein at the murder scene. The trial court noted that PW1 testified that there was a heated altercation between the deceased and the appellant before PW1 finally heard the deceased scream. It is therefore likely that the altercation provoked the appellant in committing the offence.’ 17.Before considering this ground, we observe that the appellant did not address the other three grounds in his memorandum of appeal, so we take the position to be that he abandoned them. This would be in line with the argument he then advances on provocation, an acknowledgment that he committed the offence that resulted in the death of his mother, that he was mentally competent, but that he was 'provoked' by some act on the part of his mother to attack her. 18.In supporting the argument that he was ‘provoked’ into committing the offence, the appellant cites the words of the court when it stated, in rejecting his alibi defence, that:“In any event, as much as the accused made vain attempts to put forth what would be an alibi defence, the submissions by his own counsel put him at the locus in quo. This is because, when called upon to submit whether the accused had a case to answer, his learned counsel was categorical that indeed the accused assaulted his mother but that he was provoked in doing so.” 19.The appellant seeks to rely on the case of Stephen Kipkeror Cheboi v Republic [2002] eKLR with respect to what actions can amount to provocation. 20.This is a first appeal and, accordingly, our duty is to re- evaluate the evidence and draw our own conclusions, bearing in mind that we did not see or hear the witnesses- see Okeno v Republic [1972] EA 32 and Mark Oiruri Mose v Republic [2013] KECA 67 (KLR). In discharging our duty as a first appellate court, we have considered the prosecution evidence presented before the trial court, the appellant’s defence, and the submissions of the parties before us. The first prosecution witness was the appellant’s own sister. She is the one who opened the gate to their home for their mother, the deceased. She went back to the kitchen, from where she heard their mother screaming that the appellant had killed her. She went to her brother’s room and found their mother on the floor, with severe cut wounds. When she tried to rescue the deceased by removing her, while still screaming, from the appellant’s room, the appellant, who was still holding a panga, ordered her to stop screaming. When she did not, he attacked her with the same panga he had wielded against their mother, inflicting serious injuries on her. 21.PW2, Muriuki, a neighbour, heard the screams and went to the deceased’s home. He met the appellant carrying a bag, with the panga inside. The appellant gave the panga to PW2 without a struggle. 22.The appellant was arrested by members of the public at the scene and, according to PW3, beaten before he was handed over to police at a roadblock which PW5 and his colleagues were manning. 23.In his sworn statement of defence, the appellant denied committing the offence, alleging that he had travelled on the material day from Kinamba in Laikipia, 3 hours away, on the date of the incident. He also accused his sister and all the prosecution witnesses of lying. It was submitted for the appellant that the prosecution case rested predominantly on the testimony of PW1, the appellant’s sister, the only eyewitness, who arrived at the scene after the fatal assault. The appellant submitted that according to PW1, there had been a “heated altercation” between the appellant and the deceased just before PW1 heard the deceased scream. This, the appellant argued, suggested that the appellant may have been provoked by the altercation into committing the offence. 24.In its submissions, the state does not address itself to the arguments by the appellant that he was provoked. It submits, however, with respect to the appellant’s contention in his grounds of appeal that the court failed to consider his defence that, on the contrary, the trial court considered the defence, but it could not withstand the overwhelming prosecution evidence. 25.We have considered the record of proceedings against the appellant’s submissions before us. The contention that his deceased mother ‘provoked’ him into committing the offence did not arise in his defence, nor was it raised in cross-examination of the main prosecution witness, Gladys, who found the appellant with a panga, the deceased on the floor with severe cut wounds, and was herself subjected to a vicious attack by the appellant. The issue of provocation was only raised by the appellant’s counsel in submissions at the case to answer stage. 26.Even had it been raised in the sworn statement of defence, however, it is an untenable and unsupportable defence. The evidence shows that the deceased came home, noticed that timber was missing from the fence between her house and the room in which the appellant was living, and went to ask him what had happened to the timber. Soon thereafter, PW1 heard the deceased screaming that the appellant had killed her. From the evidence, the only thing that the deceased did was to ask her son who had removed the timber from the fence. 27.One is constrained to ask: what kind of words or act from a mother who, from all accounts, had been bending over backwards to support her son, including by establishing a business for him and bailing him out when he got into trouble with the law, would amount to such provocation as to warrant the murderous attack that she was subjected to? It seems to us that the appellant’s counsel was making a last-ditch effort to find an acceptable defence for the appellant, in a situation where he had done the unthinkable, committed matricide. We find his argument that he was provoked to be a desperate clutching at straws. While provocation is a partial defence recognised under section 207 of the Penal Code, which, if successfully invoked, can reduce what would otherwise be murder to manslaughter, there is no evidence to support or even suggest that it could be available to the appellant. The appellant has sought to rely on the case of Stephen Kipkeror Cheboi v Republic [2002] eKLR in which this Court observed that:“In other words, if in the heat of the moment or passion a person strikes another person when insulted to a degree which would deprive an ordinary person of the power of self-control, an act of killing resulting from such striking could amount to manslaughter rather than murder.” 28.We accept this as a correct general proposition of the law on provocation. For an act to amount to manslaughter as a result of provocation, however, the facts and circumstances of each case must be taken into consideration. Having done so in this case, we find that even had the defence of provocation been put forward, there was no basis for finding that the deadly attack by the respondent on the deceased was a result of provocation. 29.Accordingly, we find no merit in the appeal. We dismiss it in its entirety, and we uphold both the conviction and sentence. DATED AND DELIVERED AT NYERI THIS 29TH DAY OF MAY, 2026S. ole. KANTAI................................JUDGE OF APPEALMUMBI NGUGI................................JUDGE OF APPEALALI-ARONI................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR