https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1008

Mutuma v Republic (Criminal Appeal 38 of 2017) [2026] KECA 1008 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KECA 1008 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Criminal Appeal 38 of 2017 S ole Kantai, JW Lessit & A Ali-Aroni, JJA May 29, 2026 Between Edward Mutuma Appellant and Republic Respondent (An appeal from the Judgment of the High Court of Kenya at Meru (Mabeya, J.) delivered on 16th February 2017 in HCCR. No. 23 of 2009) Judgment 1.Edward Mutuma, the appellant herein, had been charged before the High Court in Meru, 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 February 2009, at Kithare Village, Gatune Sub-Location, Mwanganthia Location, he murdered Hesbon Muchui. 2.The appellant pleaded not guilty to the charge, and the matter proceeded to trial, with the prosecution calling 6 witnesses. At the end of the trial, the appellant was found to have a case to answer and was placed on his defence. Upon considering the evidence, the learned Judge convicted the appellant of the offence and sentenced him to suffer death. 3.Aggrieved by the conviction and sentence, the appellant appealed to this Court and faults the trial Judge for relying on circumstantial evidence; for failing to observe that the prosecution did not avail the weapons used to inflict injury to the deceased; by failing to observe that the officer who visited the scene was not availed as a witness and by failing to note that the prosecution did not prove its case beyond reasonable doubt; by meting a harsh sentence. 4.This being a first appeal, we are under a duty to examine, consider and evaluate the evidence afresh to arrive at our independent decision, always bearing in mind that the trial court had the advantage of hearing and seeing the witnesses firsthand and making an allowance for that fact. This has been reiterated over time. Some of the instances include: Okeno vs. Republic [1972] EA 32, where it was stated:“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 vs. Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala Vs. 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 finding and conclusion; it must make its own findings and draw its own conclusions. Only then can itdecide whether the magistrate’s 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, see Peters vs. Sunday Post [1958] E.A 424.” Ngala & 2 Others vs. Republic (Criminal Appeal E117 of 2023) [2025] KECA 660 (KLR (11 April 2025) (Judgment),the Court stated:“The principal role of this Court on first appeal is to step into the shoes of the superior Court and re-assess and re- evaluate the evidence adduced at the trial, and determine whether any alleged contradictions, discrepancies or inconsistencies exist and, if they do, whether they are prejudicial to the Appellant(s).” 5.As we undertake our duty spelt out above, we shall briefly consider the evidence placed before the trial court. PW1, Dr Carol Kilach, produced the postmortem report of the deceased child, Hesbon Muchui, which was performed on 12th February 2009, at Meru District Hospital by Dr Macharia. In the report, the doctor observed that the body was of an African male about 2 weeks old. He further observed that the central and peripheral cyanosis were bluish externally, indicating they lacked oxygen in the blood. Internally, he observed that the head had multiple scalp haematoma. There was blood under the skin, and there was an intracerebral haemorrhage in both parietal lobes. The conclusion was that the cause of death was the head injury. 6.PW2 Jocelyn Ngugi recalled that on 1st February 2009, she visited the appellant, who happened to be her 2-week-old deceased son’s father, at his home together with their deceased son, at about 10:00 am. She did not find him. However, his parents were home. The appellant came after 20 minutes. She later joined the appellant at his house at his request. The deceased fell asleep, and she placed him on a chair. She then decided to go back to the appellant’s parents, as the child was asleep. She left the appellant alone in the house with the child. While PW2 was talking with the appellant’s parents, she heard the child crying, and went to breastfeed him, and the deceased slept again, and she placed him on the chair. She went back to the appellant’s parents. After a short while (20 minutes), she decided to check on the child but did not find him. She only found a towel and a leso. 7.PW2 enquired about the child’s whereabouts from the appellant, and he told her that the child was asleep on the bed. At that time, the appellant was outside washing his muddy hands and trousers. PW1 asked why he had removed the child from the chair. The appellant seemed disturbed. She then called PW4, the appellant’s mother and together they searched for the child but did not find him. PW4 started screaming, which attracted people. The appellant started running away but was caught. PW5, the appellant’s sister and PW2 went to report the incident at Kariendini Police Station. They were escorted by police from the station, and upon returning, they found police from Mujwa Administration Police Service had arrived. The appellant was asked to show them where the child was, and he led them to a shamba with planted bananas about 50 meters away. The police then returned with the child in the clothes PW2 had dressed him in. 8.The child who was dead was placed in a paper bag. PW2 went with the police. The following day, PW2 went to record a statement at the Mujwa Police Station. On 12th February 2009, she attended the post-mortem examination of the child with the police at the Meru Hospital. 9.In her testimony, PW2 confirmed that she was not married to the appellant, whom she had known for one year, and that before the incident, they had no problem between them, nor with his parents. 10.PW3 Gladys Mwari, PW2’s mother, testified that on 1st February 2009, PW2 left her home at 9:00 am and went to the grandmother of the child for blessings because the child was crying a lot. At 2:00 pm, PW2 returned home and informed her that she had left the child sleeping in the appellant’s house but later did not find it. She confirmed that the appellant was the child's father. PW3 went to the appellant’s home and met many people who had gathered. She fainted on hearing that the child had been killed. She later saw the child at the mortuary. It had soil on the face and head, and had blood oozing from the ear, eyes, nose and mouth. The child was one week old. 11.PW4, Teresia Mwari, testified that on 1st February 2009, she arrived at her home from church at about noon and found PW2 and her sister in her kitchen. PW2 was carrying a child, and PW2 told her that the child was her grandchild, from her son, the appellant, and whom she had brought for her blessings. The child was for her son, the appellant and was over a week old. Later, PW2 took the child to sleep in the appellant’s house and left. Later, PW2 complained to her that she did not find the child where she had left him. She went to the appellant’s house and did not find the child, which shocked her. PW2 started screaming, and many people came. She sent for police from Kiriendine and Mujwa, who came and arrested the appellant. The police asked the appellant to produce the child. He took them to the place where the child was buried in a nearby banana plantation. She did not see the baby after the police found it. 12.PW5 Janet Mukiri, the appellant’s sister, testified that on 1st February 2009, as she left church at noon, she heard screams emanating from her home. She was with her husband and family members. She decided to go and see what was happening. She found many people, and her younger brother, the appellant, had been tied up with a rope. She heard of the missing child. Later, the child was found, and it was discovered that the appellant had killed him. She knew that the appellant was courting PW2, but she was still at her home. She had not known PW2 before. 13.PW6 CIP Lazarus Tarus, who was the OCS of Kieriene Police Station and the investigating officer in the matter, testified that he received a call from PC Stanley Mwithiga of Mujwa Police Post informing him that a child had been killed and buried in a banana plantation. He instructed him to proceed to the scene since his Land Rover had broken down. The following day, he went to the police post and found PC Mwithiga, who informed him that the suspect, who was the child’s father, was already in the cells. He also found the body of the child at the police post. He picked the appellant from the police post. He also observed the child, and it had a depression on the skull. PW6 took the suspect to the Kariene Police Station and the body to Meru Hospital Mortuary. No exhibits were recovered. 14.When placed on his defence, the appellant gave a sworn testimony where he denied committing the offence. In his testimony, he informed the court that on 1st February 2009, about 11:30 am, PW2, who was his girlfriend and mother to the deceased, her sister and the deceased, who was 14 days old, came to his home. He left them with his parents to attend a meeting with his fellow men at 12:00 pm and returned at 12:45 pm, when he found PW2 in the sitting room with her sister. The deceased child was on the sofa in his house. 15.He went to the bathroom, and when he returned, he saw PW2 come out screaming. She ran towards the road. The appellant asked what was wrong, and she told him that, upon entering the bedroom, she pushed the door and the baby fell. PW2’s sister also ran out. The appellant was shocked. 16.After PW2’s screams, many people came, and he explained what had happened. He was shocked. He could not see PW2. He took the deceased and put him opposite his mother's house on the farm. 17.The trial court, having considered the evidence by both the prosecution and the defence, found that the ingredients of the offence of murder had been proved beyond any reasonable doubt, convicted the appellant, as charged and sentenced him to suffer death. 18.This appeal was heard on the Court’s virtual platform. Counsel for the parties filed submissions and briefly highlighted the same. Learned counsel for the appellant filed submissions dated 10th January 2025 and focused on three main issues, namely: the prosecution's failure to provide the murder weapon; the insufficiency of circumstantial evidence; and the failure by the prosecution to prove its case beyond a reasonable doubt. 19.Counsel argued that there are glaring loopholes in the prosecution's case and emphasised that there was no direct evidence linking the appellant to the murder. He referred to PW2’s evidence that the appellant was outside the house washing his hands and his trousers that were full of mud, as she went to check on the baby. This, he argued, was corroborated by PW3, who stated that the appellant was not in the house when PW2 entered. 20.Counsel submitted further that the appellant's own account is that he had gone to a meeting, came home, went to the bathroom, came out of the bathroom, and he saw PW2 screaming, and she informed him that the baby had fallen when she pushed the door. Counsel emphasised that the prosecution failed to prove who the killer of the child was or place the appellant at the scene of the crime. The only evidence close to the incident was that PW2 was the appellant's girlfriend, and that a separate witness, PW4, testified that PW2 once threatened to cause problems. Furthermore, the investigating officer (PC Stanley Mwithiga) was not called to testify, which counsel submits was important to the trial, as the officer's evidence was key in linking the appellant to the crime. 21.Regarding the murder weapon, counsel noted that PW1 testified that the deceased died of a single head injury, but no explanation was given for the circumstances leading to the death. The post-mortem report only cited the cause of death as a head injury, with no mention of whether a weapon was used. 22.Counsel contended that, without a witness placing the appellant at the scene, implicating the appellant was based on mere suspicion, which cannot form the basis of a conviction. While acknowledging legal precedent that failure to produce a murder weapon is not always fatal if other evidence is sufficient, counsel submitted the weapon was relevant given the facts of this specific case. 23.Counsel also submitted that malice aforethought was not proved, arguing that there is no evidence placed before the court that the appellant caused the death of the deceased or that a weapon was used. For a murder conviction to be sustained, the act must be aimed at someone with the intention to cause death or grievous bodily harm. 24.Counsel contended that the trial court's case turned entirely on circumstantial evidence. He relied on the principle that inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. Given the inconsistencies, including the appellant's absence from the scene and the failure to prove motive, the circumstantial evidence is insufficient to sustain the conviction. 25.Counsel concluded by submitting that the conviction of the appellant for the offence of murder was unsafe. However, he added that should the conviction be upheld, the Court ought to find that the killing amounted to manslaughter, citing lack of evidence to prove intent, and to vary the sentence based on Francis Muruatetu vs. Republic [2017] eKLR decision. He proposed a substitution of the conviction to manslaughter with a sentence of eight (8) years imprisonment. 26.In opposing the appeal, learned counsel for the respondent filed submissions dated 21st February 2025. On the issue of the murder weapon, counsel submitted that its absence was not fatal to the prosecution's case. Further, the testimony of PW3, PW6, and the medical doctor (PW1) confirmed the deceased's injuries, including blood from the ears, eyes, nose, and mouth, a depression on the skull, multiple scalp hematomas, and intracerebral hematomas, confirming that the cause of death was a head injury, establishing that the injuries were unnatural and not self-inflicted, thus refuting the appellant's defence that the injuries were consistent with a fall. Counsel further aligned with the holding in Godfrey Wafula Simiyu vs. Republic [2021] KECA 439 (KLR), that there is no legal requirement to produce a murder weapon. 27.Regarding the circumstantial evidence, counsel argued in the affirmative. In support, he referred to the principle set out in Sawe vs. Republic (Criminal Appeal 2 of 2002) [2003] KECA 182 (KLR), which requires that inculpatory facts be incompatible with the accused's innocence, form a complete chain, and point unerringly towards the accused's guilt. 28.Counsel submitted further that key circumstantial evidence was presented in evidence; PW2's evidence placed the appellant at the scene of the crime; the appellant did not deny the deceased was taken to his house, and that he was the last person seen with the deceased; the appellant’s admission to digging the grave and secretly burying the deceased without a credible explanation. Further, the appellant's actions following the death strongly indicated his involvement, and he even insinuated before the trial court that he did not intend to kill the deceased, requesting the charge be reduced to manslaughter. 29.Furthermore, counsel urged that the prosecution successfully established malice aforethought by demonstrating the injuries inflicted on the deceased, their specific location, and the appellant's conduct following the act. In support, counsel referred to Daniel Muthee vs. Republic (Criminal Appeal 218 of 2005) [2007] KECA 419 (KLR), which considered that injuries inflicted on a deceased by a perpetrator may point to malice aforethought depending on the area of injuries inflicted and the gravity of injuries. 30.Finally, concerning the sentence, counsel noted that the appellant chose not to offer any mitigation, and therefore, the holding in Francis Karioko Muruatetu & Others vs. Republic (supra) does not assist him. Counsel concluded that the prosecution proved its case beyond a reasonable doubt, the conviction and sentence are sound, and urged the court to dismiss the appeal in its entirety. 31.Having reconsidered the record of appeal, the rival submissions and the law, the following issues arise for determination:a.Whether the prosecution proved its case beyond a reasonable doubt;b.Whether failure to produce a murder weapon or call certain witnesses was fatal;c.Whether the sentence meted out was appropriate. 32.We will consider the first two issues together: whether the prosecution proved its case beyond a reasonable doubt and whether failure to produce the murder weapon and to call witnesses was fatal to the prosecution case. It is trite that the prosecution in a charge of murder has a singular task of proving the following three ingredients in order to secure a conviction, namely; that death occurred; the death was caused by the unlawful act of commission or omission by the appellant; and that the appellant had malice aforethought as he committed the said act. See Nyambura & Others vs. Republic [2001] KLR 355 as cited in Anthony Ndegwa Ngari vs. Republic [2014] KECA 424 (KLR). 33.From the record, there is no dispute that the deceased was murdered. The evidence on record in this regard is sufficient. 34.The issue is whether the prosecution proved beyond a reasonable doubt that it was the appellant who committed the unlawful act that led to the death of the deceased, and further whether his action was laced with malice aforethought. Based on the evidence tendered before the trial court, it is common ground that none of the prosecution witnesses saw or witnessed the appellant or indeed the killing of the deceased. Meaning, therefore, that there was no direct evidence linking the appellant to the death of the deceased. The prosecution’s case on this aspect is hinged on circumstantial evidence. In the case of Ahamad Abolfathi Mohammed & another vs. Republic [2018] KECA 743 (KLR), this Court had this to say on circumstantial evidence:“However, it is altruism that the guilt of an accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence, which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form as strong a basis for proving the guilt of an accused person just like direct evidence. Way back in 1928 Lord Heward, CJ, stated as follows on circumstantial evidence in R v. Taylor, Weaver & Donovan [1928] CR. App. R. 21:“It has been said that the evidence against applicant is circumstantial. So it is, but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of Mathematics. It is no derogation from evidence to say that it is circumstantial.” 35.This Court in Njuru vs. Republic (Criminal Appeal 7 of 2019) [2026] KECA 433 (KLR), the Court cited Abanga Alias Onyango vs. Republic, Cr. Appeal No. 32 of 1990, laid the conditions for the application of circumstantial evidence in any criminal trial when it:“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:i.The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;ii.Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;iii.The circumstances taken cumulatively should 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 none else.” 36.Bearing the said principles in mind, the question that begs for an answer is whether the prosecution placed any circumstantial evidence that linked the appellant to the offence. 37.Upon our own re-evaluation of the evidence placed before the trial court, the following facts stand out:The deceased, a child barely two weeks old, was left in the appellant’s house; The appellant was the only adult present at the material time; Shortly thereafter, the child disappeared; The appellant gave inconsistent and implausible explanations; The appellant led the police to the shallow grave in the banana plantation where the deceased's body was recovered within close proximity to his house; Medical evidence confirmed that the death of the deceased was caused by a severe head injury, inconsistent with an accidental fall, which was the appellant’s explanation. 38.The above analysis is in consonance with the trial court’s findings and points to none other than the appellant as the perpetrator of the offence. Further, the rebuttable doctrine of ‘last seen with’, based on circumstantial evidence, also comes into play. The doctrine presumes that the person last seen with the deceased alive is responsible for their death. The appellant was expected to provide a credible explanation for what happened as he was the last person left with the deceased. 39.The appellant’s defence that when he came out of the bathroom, he saw PW2 come out screaming, running towards the road, and that on inquiry she told him that when she went to the bedroom, she pushed the door and the baby fell, and how he was shocked does not reconcile with how knowledge of where the child, and his leading the police to where the child was buried. The appellant’s defence by any stretch of imagination cannot be deemed to be a proper explanation. The assertions by the appellant do not add up, and even when pieced together, do not form any logical explanation worth displacing the evidence adduced by the prosecution. The statements by the appellant are disjointed, do not marry and were aimed at diverting the facts as stated by the various witnesses. Contrary to the submissions by the appellant, the circumstantial evidence relied on by the prosecution met the threshold and therefore, the trial Court was right to convict the appellant on the evidence. 40.We do find that the evidence placed before the court, taken cumulatively, irresistibly points to the appellant as the perpetrator of the offence, and we, therefore, align ourselves with the trial court’s finding that he was the perpetrator of the offence. 41.Section 206 of the Penal Code provides that:“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.” 42.This Court has construed this provision in numerous cases, including Ekaita vs. Republic (Criminal Appeal 25 of 1994) [1994] KECA 107 (KLR), where this Court held that:“For the purposes of this appeal, where an accused knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and he proceeds to commit those acts deliberately and without lawful excuse, the intention to expose a potential victim to that risk as a result of those acts constitutes malice aforethought. It does not matter in such circumstances whether the accused desires those consequences to ensue or not.” 43.Having considered the entire record and examined the evidence as a whole minutely and exhaustively, more so the postmortem report that, externally, the central and peripheral cyanosis were bluish, indicating they lacked oxygen in the blood and internally, the head had multiple scalp haematoma. There was blood under the skin, and there was an intracerebral haemorrhage in both parietal lobes. These injuries to the head were meant to cause death or grievous harm to the deceased, and the argument that malice aforethought was not proved is nothing but a desperate attempt to clutch at straws. We are satisfied that in the eyes of the law, the appellant inflicted the injuries on the deceased with malice aforethought. 44.On whether failure to produce a murder weapon or call certain witnesses was fatal, the appellant argued that failure to produce a murder weapon and to call certain witnesses weakened the prosecution’s case. The law on the missing weapon issue is settled. In Chris Kasamba Karani vs. Republic [2010] KECA 478 (KLR), this Court held:“The offence of murder can be proved even where the murder weapon is not produced as an exhibit, so long as there is sufficient evidence to establish the cause of death and the perpetrator.” 45.Further, in Godfrey Wafula Simiyu vs. Republic [2021] KECA 439 (KLR), this Court reiterated that the absence of a weapon is not fatal where other evidence is cogent. Here, the post- mortem report clearly established the cause of death as severe head injury. The nature of the injuries ruled out an accident and pointed to intentional infliction. 46.As regards failure to call certain witnesses, the principle in Bukenya vs. Uganda [1972] EA 549, as adopted by our Court in Joseph Kiptum Keter vs. Republic [2007] KECA 390 (KLR), is that the prosecution must call essential witnesses, and the failure to call every witness is not fatal if the evidence on record is sufficient. The prosecution is not obliged to call a superfluity of witnesses. See Julius Kalewa Mutunga vs. Republic (Criminal Appeal 31 of 2005) [2006] KECA 79 (KLR). 47.We are satisfied that the circumstantial evidence placed before the court irresistibly pointed to the appellant and, therefore, the conviction is safe. As for the death sentence, it is now settled that the death penalty is not the only available penalty following the Muruatetu decision (supra). We also take judicial notice that, depending on the circumstances of a case, courts are increasingly giving determinate sentences. We are of the view that the appellant’s complaint of the death penalty is merited in the circumstances of this case. 48.In the end, the appeal on conviction is dismissed. The appeal succeeds only to the extent that the death sentence is set aside and in its place the appellant is sentenced to 25 years’ imprisonment from the date of his arrest. DATED AND DELIVERED AT NYERI THIS 29TH DAY OF MAY, 2026.S. ole KANTAI ..............................JUDGE OF APPEALJ. LESIIT ..............................JUDGE OF APPEALALI-ARONI ..............................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR.