https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1149

Rono v Republic (Criminal Appeal 114 of 2017) [2026] KECA 1149 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1149 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Criminal Appeal 114 of 2017 JM Mativo, PM Gachoka & MB Kairaria, JJA June 12, 2026 Between Dominic Kiplangat Rono Appellant and Republic Respondent (An appeal from the judgment of the High Court of Kenya at Bomet (M. Muya, J.) dated 6th October 2017 in CRA No. 10 of 2016) Judgment 1.Dominic Kiplangat Rono (the appellant) was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code at the High Court at Bomet in HCCR Case No. 10 of 2016. It was alleged that on 15th June 2016 at Kapkoros Village within Bomet County, he murdered Penedy Chelangat. He pleaded not guilty to the charge and the trial ensued. In the impugned judgment dated 6th May 2019, Muya J. convicted the appellant and sentenced him to suffer death. 2.As a first Appellate Court, we are obligated to consider the evidence presented before the trial court and arrive at our own independent conclusions. However, we must remain conscious of the fact that unlike the trial court, we did not have the benefit of hearing and observing the witnesses testify in order to gauge their demeanor. (See Dickson Mwangi Munene & Ano. vs. Republic [2014] eKLR). Therefore, we will examine the evidence tendered before the trial court to satisfy ourselves whether the offence of murder was proved to the required standard. 3.The prosecution case stood on the testimony of 8 witnesses. PW1, David Kibet Koech, a bar attendant at Florida Bar, Kapkoros trading centre testified that on 15th June 2016 at about 7.30pm Dominic (the appellant) came to the bar, bought two cigarettes and left. After the bar closed at 11.00 pm, on his way home he met a group of people near a church but he proceeded home. He did not see the deceased at the bar. He later recorded a statement with the police. 4.PW2, Erick Kipkemoi Chirchir testified that on 15th June 2016 he was at his home when one Gerald told him that there was a huge crowd at a nearby church. They both proceeded to the scene where they found the appellant in a telephone conversation with another person. The appellant gave him his phone to speak to his brother. The appellants’ brother asked PW2 to confirm whether what his brother was saying was true, which is that he had killed his girlfriend. Shocked, PW2 checked around and saw somebody lying beside a bed of flowers. He noted that the victim was dead and called neighbours. They also held the appellant and waited for the area chief who arrived shortly thereafter. The police collected the body and apprehended the appellant. 5.Mr. Paul Kibyegon Koech (PW3), the area chief testified that he went to the scene at around 8.30 p.m. after receiving a call from a lady who told him that a girl had been murdered near a church compound. At the scene, he found the appellant had been detained by members of public and the body was lying on the ground with visible head injuries. According to PW3, the deceased appeared to have been strangled with a belt and blood was oozing from her mouth and the nose. The police collected the body and arrested the appellant. 6.Langat Kimutai Chipchirchir (PW4), a businessman at Kapkoros said he learnt about the murder while at home. He proceeded to the scene where he saw the body lying on the ground. She appeared to have been strangled with a belt which was strapped around her neck. He knew the appellant who was a tea picker at Kapkoros. It was his evidence that the appellant was staying with the deceased and they had a relationship even though they were not legally married. 7.David Koech (PW5) stated that on the fateful night while at home, he received a call and was told that his niece had been killed near a church compound. At the scene, he found the body lying near the door of a church kitchen. She had injuries on the face and blood was oozing from the mouth and the nose. There was a belt strapped round her neck. The appellant was at the scene having been detained by a police officer. He also testified that the accused was in a relationship with the deceased and they were staying together. The deceased had two children but not with the accused. 8.Dr. Mutai (PW7) conducted the post mortem examination. His findings were that the body had a huge blunt injury on the forehead approximately 5 cm x 5 cm. There was presence of blood oozing from the mouth, nostrils and ears. The right side of the head and the face were swollen. There was a dark bruise on the neck which appeared as a strangulation mark which was prominent around the neck. Internally the trachea was compressed. In his opinion, the cause of death was secondary to very severe blunt head injury. 9.The last witness, PW9, (PC Bernard Wabola) was the investigating officer. On the material day he visited the scene accompanied by other police officers. He confirmed the appellant was at the scene. It was his evidence that the appellant admitted committing the offence. 10.In his unsworn defence, the appellant stated that previously he worked at Florida bar as a waiter and that on the 15th day of June 2016 at about 11.00 p.m he left the said bar for home. On his way home as he passed near a church, he heard screams and decided to go and check what was happening. Suddenly, he heard people shout "arrest him," "arrest him." He claimed he was beaten by people who were saying that he had killed. He was later taken to Barnet Police Station where he was later charged with murder. 11.At the close of the trial, the learned judge after analyzing the evidence concluded that the offence of murder was proved to the required standard and convicted the appellant accordingly. In mitigation, the appellant’s counsel stated that the appellant was then aged 26 years, he was married with two children and he was a first offender and apologetic and that the offence was committed under the influence of alcohol. He pleaded for lenience saying the appellant had embraced Christianity. After considering the appellant’s mitigation and the probation report, the learned judge stated: “…the offence of murder carries a mandatory death sentence. The accused is sentenced to suffer death as per law provided.” 12.The appellant is now before this Court challenging both the conviction and sentence citing two grounds: (a) the offence was not proved beyond reasonable doubt; (b) the sentence is harsh. Mr. Odhiambo, learned counsel for the appellant filed written submissions dated 7th March 2026 expounding on these two grounds. 13.Addressing the 1st ground, Mr. Odhiambo maintained that the learned judge erred in relying on circumstantial evidence which had an incomplete chain of events, therefore, the prosecution failed to prove that the appellant participated in the unlawful act. Citing the ingredients of the offence stipulated in section 206 of the Penal Code, counsel submitted that none of the 8 prosecution witnesses saw the appellant commit the offence. He poked holes in the evidence of PW2 contending that the alleged caller was never called as a witness, a gap that the learned trial judge himself acknowledged in the judgment. It was his submission that in the absence of testimony by the alleged caller, the statement attributed to him amounts to pure hearsay and therefore lacks probative value. Secondly, counsel argued that no call data records were produced before the court, nor did the investigating officer tender any phone records to confirm that such a conversation ever took place. Thirdly, counsel contended that the alleged confession is legally unreliable because the statement attributed to the appellant was not recorded as a confession in compliance with section 25A of the Evidence Act, which requires that confessions be recorded before a magistrate or a duly authorized officer. Consequently, the alleged statement cannot, in law, be treated as evidence of guilt against the appellant. 14.Mr. Odhiambo submitted the evidence of PW3 did not link the appellant with the commission of the offence. Regarding PW5, counsel argued that it was already dark and that there was a crowd at the scene, therefore, the circumstances increased the likelihood of mistaken identification. In addition, the evidence of the police officer does not place the appellant at the scene as the person who caused the death of the deceased. Counsel maintained that the prosecution evidence failed to establish any credible link between the appellant and the alleged killing. 15.It was Mr. Odhiambo’s submission that the post-mortem report and the doctor’s testimony reveals that the cause of death was severe blunt head injury and not strangulation. According to counsel, the prosecution placed considerable emphasis on the presence of a belt around the deceased’s neck in an attempt to suggest strangulation, which he argued clearly contradicted the doctor’s opinion that the death was caused by a blunt force trauma to the head, yet the blunt object was not produced in court. 16.Lastly, Mr. Odhiambo contended that even though the investigating officer testified that the appellant had earlier been seen with the deceased at a bar, the witness who allegedly saw them was never called to testify. Therefore, the investigating officer relied on second-hand information which amounts to hearsay evidence which carries no probative value and it cannot be relied upon to establish any link between the appellant and the deceased’s death. 17.Mr. Odhiambo maintained that the appellant’s conviction was purely based on circumstantial evidence which must be subjected to strict legal tests before it can safely sustain a conviction. He cited Republic vs. Kipkering Arap Koskei & Ano [1949] 16 EACA, Ahamad Abolfathi Mohammed and Ano. vs. Republic [2018] eKLR, Abanga alias Onyango vs. Republic Cr. App No. 32 of 1990 (UR) and Sawe vs. Republic [2003] KLR 364 to urge that the inculpatory facts must be incompatible with the accused’s innocence and incapable of explanation upon any other reasonable hypothesis other than guilt. 18.Regarding sentence, counsel argued that the sentence imposed upon the appellant is harsh and disproportionate. Counsel contended that the fact that the appellant was a first-time offender was not considered while passing the sentence. He relied on the Supreme Court decision in Francis Karioko Muruatetu & Ano. vs. Republic SC Pet. No. 15 &16 of 2015 and this Court’s decisions in of George Onyango Kesera & Ano. vs. Republic 2019 eKLR, Simon Kanui Mwenda vs. R [2020] eKLR and Criminal Appeal No. 479 of 2007; Daniel Kyalo Muema vs. Republic to urge that the trial court had the discretion to impose an appropriate sentence taking into account the peculiar circumstances of the case. 19.Learned counsel for the respondent Mr. Omutelema, Senior Assistant Director of Public Prosecutions relied on the written submissions dated 6th March 2026. It was his submission that the fact of death was sufficiently proved. As to the cause of the death, Mr. Omutelema submitted that the prosecution case was premised on circumstantial evidence and relied on Republic vs. Kipkering Arap Koskei & Ano. (supra) to urge that the prosecution evidence was sufficient to justify the inference of guilt. Counsel recalled the testimony of PW2 and submitted that the appellant’s guilty was proved to the required standard. 20.As to whether malice aforethought was proved, counsel cited section 206 of the Penal Code and the evidence of PW4, PW5, PW6 and PW7 and argued that malice aforethought can be inferred from the circumstances of the case. He asserted that the conviction was safe. 21.Regarding sentence, counsel maintained that the trial court considered the appellant’s mitigation, the circumstances and the nature of the offence and imposed the appropriate sentence as provided by the law. Nevertheless, counsel cited Francis Karioko Muruatetu & Ano. vs. Republic (supra) and urged this Court to impose an appropriate sentence taking into account the heinous nature of the offence and the circumstances surrounding its commission. 22.We have considered the evidence adduced before the trial court, the parties’ submissions, authorities relied upon and the law. In our view, two issues fall for determination, namely: (a) whether the prosecution proved its case to the required standard; (b) whether this Court should interfere with the death sentence. 23.An appropriate starting point in addressing the first issue is to recall that section 203 of the Penal Code defines the offence of murder as follows: “Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” A reading of this section shows that to succeed in a murder case, the prosecution must prove the following ingredients: (a) the death of the deceased; (b) that the death was caused by an unlawful act or omission on the part of the accused;(c)that in causing the death of the deceased, the accused had malice aforethought. (See this Court’s decision in Titus Ngamau Musila Katitu vs. Republic [2020] eKLR). It is common ground that the deceased was killed, therefore, the first pre-requisite is not in issue. We will focus on the remaining ingredients. 24.We will start with malice aforethought which refers to an intentionally harmful act that typically leads to someone's death. Malice aforethought is a critical element of the crime that distinguishes the offence of murder from other types of homicide cases, such as manslaughter. Malice aforethought shows the following:(a)the killer's state of mind at the time of the murder;b.the killer thought about the murder before committing it; and,b.the killer took specific steps to facilitate the murder. (See this Court’s decision in Odio vs. Republic (Criminal Appeal 228 of 2019) [2024] KECA 1544 (KLR)). 25.As was held by this Court in Odio vs. Republic (supra), malice aforethought may be express or implied. Express malice aforethought refers to when a deliberate intention is manifested to take away the life of a person unlawfully. Implied malice aforethought applies when no considerable provocation appears or when the circumstances attending the killing show a reckless and wicked heart. To be convicted of murder, malice aforethought must be proved. Malice aforethought cannot be imputed to an accused person based solely on their participation in a crime. If it is shown that the killing resulted from an intentional act with express or implied malice aforethought, no other mental state need be shown to establish malice aforethought. In Nzuki vs. Republic [1993] eKLR, this Court defined malice aforethought as:“…a term of art and is either an express intention to kill, as could be inferred when a person threatens another and proceeds to produce a lethal weapon and uses it on his victim; or implied, where, by a voluntary act, a person intended to cause grievous bodily harm to his victim and the victim died as the result. See the case of Regina v Vickers, [1957] 2 QB 664 at page 670. An intention connotes a state of affairs which the person intending does more than merely contemplate: it connotes a state of affairs which, on the contrary, he decides, so far as in him lies, to bring about, and which, in point of possibility, he has a reasonable prospect of being able to bring about, by his own act of volition. See the case of Conliffe v Goodman, [1950] 2 KB 237.” 26.The threshold for determining malice aforethought is provided in section 206 of the Penal Code, which provides:“ 206.Malice aforethought Malice 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.” 27.In Nzuki vs. Republic (supra), this Court stated:“Before an act can be murder, it must be aimed at someone and in addition it must be an act committed with one of the following intentions, the test of which is always subjective to the actual accused:i.The intention to cause death;ii.The intention to cause grievous bodily harm;iii.Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from these acts and commits those acts deliberately and without lawful excuse the intention to expose a potential victim to that risk as the result of those acts.It does not matter in such circumstances whether the accused desires those consequences to ensue or not and in none of these cases does it matter that the act and the intention were aimed at a potential victim other than the one who succumbed.Without an intention of one of these three types, the mere fact that the accused’s conduct is done in the knowledge that grievous harm is likely or highly likely to ensue from his conduct is not by itself enough to convert a homicide into the crime of murder. See the case of Hyam v Director of Public Prosecutions, [1975] AC 55.” 28.As decided cases suggest, because a court cannot directly read an accused person's mind, courts routinely rule that malice aforethought (or criminal intent) can be conclusively inferred from the objective medical evidence specifically the nature, location, severity, and multiplicity of the injuries inflicted on the deceased. The landmark case of Rex vs. Tubere s/o Ochen [1945] 12 EACA 63 remains the most widely cited authority on inferring intent from physical trauma. In the said decision, the East African Court of Appeal explicitly laid down a four-factor checklist for courts to deduce malice aforethought from a deceased’s body: (a) the nature of the injuries: violent, devastating, or deep wounds speak directly to the assailant’s frame of mind; (b) the part of the body targeted: intentionally striking highly vulnerable, vital organs (such as the brain, neck, or heart) demonstrates a clear expectation of a fatal outcome; (c) the weapon used: deploying an inherently lethal instrument (e.g., a firearm, heavy machete, or iron bar) to cause those injuries signals malicious intent; (d) the manner of infliction: repeated, persistent actions, as opposed to a single, accidental blow, indicate a determined will to kill. This Court in Musimbi vs. Republic [2023] KECA 287 ruled that death by ligature strangulation or manual asphyxiation serves as absolute proof of malice aforethought. Strangulation requires sustained, continuous physical pressure over minutes, showcasing a "pure intention to end the deceased's life.” 29.When a court is asked to infer malice aforethought in cases of this nature, the Court weighs the findings using a two-step judicial inquiry: (a) the Objective Inquiry (Post-Mortem): The Court analyzes the pathologist's report to isolate the exact cause of death, the force required to break bone or sever tissue and the number of distinct impact sites. (b) The Subjective Inference: The Court asks: Could a person inflict these precise injuries without realizing that death would be the natural and probable consequence? If the answer is no, malice aforethought is legally established. (See the High Court decision in Republic vs. Koskei alias Nicholas Korir [2025] KEHC 2686 (KLR)). 30.Dr. Mutai (PW7) who conducted the post mortem examination testified that the body had a huge blunt injury on the forehead approximately 5 cm x 5 cm. A huge blunt injury measuring 5 cm x 5 cm on the forehead suggests a heavy blow with a heavy object and a great measure of force. The doctor reported the presence of blood oozing from the mouth, nostrils and ears. Again, this clearly suggests a heavy blow which left such an impact. It was also reported that the right side of the head and the face were swollen. All these findings suggest brutal force. As if that was not enough, the doctor reported a dark bruise on the neck which appeared as a strangulation mark which was prominent around the neck. Internally, the trachea was compressed. It should be recalled that there is uncontroverted evidence that there was a belt around the neck suggesting strangulation. The doctor’s conclusion is corroborated by the evidence of the eye witnesses. Without hesitation, we find that malice aforethought was clearly established in this case. 31.The next question is whether it was established beyond reasonable doubt that the appellant caused the deceased’s death. The appellant’s counsel insisted that the circumstantial evidence adduced did not meet the required threshold to irresistibly point at the appellant as the offender. The principles enunciated in the decisions cited by the appellant’s counsel are good law. Granted, the threshold for circumstantial evidence to secure a conviction is exceptionally high. For circumstantial evidence to be held to have irresistibly pointed at the accused as the offender, it must completely exclude any other reasonable hypothesis except that of the accused's guilt. The East African Court of Appeal decision in R. vs. Kipkering arap Koske & Ano. (1949) 16 EACA 135 remains the baseline authority in determining cases based on circumstantial evidence. It establishes that: (a) the inculpatory facts must be entirely incompatible with the innocence of the accused; (b)the evidence must be incapable of explanation upon any other reasonable hypothesis than that of guilt; (c) there must be no co-existing circumstances that weaken or destroy the inference of guilt. We find that the death was unlawfully caused. 32.The above three-pronged test was explicated by this Court in Abanga alias Onyango vs. Republic (Cr. App. No. 32 of 1990) (unreported), a decision which explicitly itemized the strict thresholds circumstantial evidence must meet as follows: (a) the baseline facts and circumstances from which the inference of guilt is drawn cannot be speculative; they must be proven solidly beyond reasonable doubt; (b) those circumstances must possess a definite direction that points directly and unerringly toward the guilt of the accused person; (c) taken cumulatively, the circumstances must form a chain so complete that there is no escape from the conclusion that, within all human probability, the crime was committed by the accused and no one else. 33.We now turn to the evidence adduced before the trial court to satisfy ourselves whether it met the above stringent requirements. The starting point is that the appellant was at the scene. This fact is not disputed. There is no doubt that the prosecution witnesses knew him. His defence was that he was on his way home and as he passed near a church he heard screams and decided to go and check what was happening and suddenly, he heard people shout "arrest him," "arrest him." He claimed he was beaten by people who were saying that he had killed. He was later taken to Barnet Police Station where he was later charged with murder. As was held by this Court in Kiarie v Republic [1984] KLR 739 an accused person's defense must be explicitly weighed against the prosecution's evidence. We can only add that the correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides. A trial court must avoid analyzing the state's case in a vacuum. If the defense narrative is plausible enough when set against the prosecution’s evidence to create a doubt, the accused must be acquitted. (See Bhatt vs. Republic [1957] EA 332). 34.The appellant’s defence that he walked into a crowd who shouted “arrest him” is to be weighed against the prosecution evidence highlighted earlier. In a nutshell, PW2 testified that at the scene they found the appellant deeply in a telephone conversation with another person. It was his evidence that the appellant gave him (PW2) his phone to speak to appellant’s brother. We can pause here and say, this piece of evidence that he was found at the scene and that he was talking to his brother on the phone and that he gave PW2 his phone to speak to his brother was not controverted. Also, PW2 testified that after the appellant gave him his own phone to speak to his brother, the appellant’s brother asked him (PW2) to confirm whether what his brother was saying was true, that is, “he had killed his girlfriend.” Again, this critical evidence was not questioned or controverted.Shocked, PW2 checked around and saw somebody lying beside a bed of flowers. He noted that the victim was dead and called neighbours. He was detained by the public who handed him to the police. PW8 said that the appellant admitted committing the offence. The appellant’s counsel argued that this was not a proper confession. We agree. But it was not the sole evidence upon which the conviction was premised. We are persuaded that the facts in this case did not suggest that the appellant was wrongly implicated. We are satisfied that there was no other plausible explanation to suggest that the offence was committed by another person. In our view, this was a safe conviction. 35.While passing sentence, the learned judge stated that the offence of murder carries a mandatory death sentence. This means that even though he appreciated the appellant’s mitigation, his hands were tied by the law, so, he could not impose any other penalty. However, the Supreme Court in Francis Karioko Muruatetu & ano. vs. Republic [2017] eKLR held that the mandatory nature of the death sentence under section 204 of the Penal Code is unconstitutional as it does not allow the consideration of the mitigating factors put forth by the accused in order to determine an appropriate sentence that meets the ends of justice. The death sentence is, however, not outlawed as the Supreme Court held that it is still applicable as a discretionary maximum penalty. 36.We have considered the seriousness of the offence and the gruesome manner in which it was executed. A life was lost. We have also considered the appellant’s mitigation. We are, however, inclined to interfere with the sentence and substitute the death penalty with a sentence of 45 years. The sentence shall run from 16th June 2016 when he was first charged in court as the record shows that he remained in custody throughout the trial. DATED AND DELIVERED AT NAKURU THIS 12TH DAY OF JUNE, 2026.J. 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.