https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1155

Sitati v Republic (Criminal Appeal E093 of 2022) [2026] KECA 1155 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1155 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E093 of 2022 MS Asike-Makhandia, HA Omondi & LK Kimaru, JJA June 12, 2026 Between Emmanuel Simiyu Sitati Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Bungoma (Riechi, J.) dated 27th July, 2021 in HCCRC No. 31 of 2019) Judgment 1.Emmanuel Simiyu Sitati, the appellant, was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence alleged that on 23rd August, 2019, at Joyland Village, Matulo Sub- Location, in Webuye West Sub-County, within Bungoma County, the appellant murdered Janet Nelima Kabusia. When the appellant was arraigned before the trial court, he denied the information. 2.A plea of not guilty was entered. The prosecution called seven witnesses. It was alleged that the deceased was the appellant’s wife. PW2, Jentrix Wanyonyi, testified that she resided in the same plot where the appellant worked as a caretaker. She recalled that on 23rd August, 2019, at about 3.00 p.m., while washing utensils outside her house, she saw the deceased enter the appellant’s house. Shortly thereafter, she heard screams emanating therefom. The screams ceased after a short while. The appellant later emerged and requested PW2 to call his phone as he was unable to locate it. She informed him that she did not have airtime. The appellant then proceeded to the outside toilet and later returned to his house. He subsequently came out wearing a different shirt, locked the house with a padlock, and left the premises. PW2 did not see the deceased leave the appellant’s house. 3.PW5, Millicent Nanjala, testified that while sweeping the compound, she saw the deceased enter the appellant’s house, shortly after which the appellant also entered the house. She stated that she thereafter heard a quarrel emanate from inside the house. After a short while, the appellant emerged and locked the house. When PW3 inquired about the commotion, the appellant informed her that he had beaten his wife and that she had gone to sleep. He further stated that he was going to purchase milk and would return shortly. However, he did not come back. 4.PW1, Dr. Caleb Wanambisi, produced the deceased’s post mortem report. According to the report, the deceased had bruises on her right hand, back of the neck and on her right shoulder. Her right lung was inflamed, the back of her head was swollen, with blood noted on her brain. He formed the opinion that her cause of death was due to blood in the brain caused by severe head injury. PW3, Moses Juma, the deceased’s brother, identified her body during the post mortem examination. It was PW3’s testimony that the deceased informed him on the material date that she was going to see her husband, the appellant, in Webuye. 5.PW7, CPL Japheth Musyoka, who at the time was attached to Bungoma Police Station, told the court that on 23rd August, 2019, at about 10.00 p.m., the appellant came to the station and reported that he had killed his wife in Webuye. The appellant reported that he had assaulted his wife and that she died in the process. PW7 informed the OCS and placed the appellant in custody. The appellant was on the same day handed over to PW6, PC Peter Mukunya Ngugi, of Webuye Police Station. PW6 testified that the appellant led the police to his house. He handed them the key to the house. On entering the house, they found the deceased body covered in a blanket. She was foaming from her nose. PW6 stated that the scene was photographed after which they transferred the deceased’s body to Webuye Hospital Mortuary. He recorded witnesses’ statements the following day. 6.The appellant was placed on his defence. He elected to give sworn statement. He admitted that the deceased was his wife. It was his testimony that the deceased had been unwell and had requested to visit her parents’ home, adding that she suffered from epilepsy. According to him, the deceased left for her parents’ home on 2nd August, 2019, and returned on 22nd August, 2019. He stated that upon her return, the deceased came to his place of work. They later proceeded home together. He testified that at about 2.30 p.m., he left the house and returned to work, leaving the deceased in the house. 7.The appellant testified that he left work at about 7.15 p.m. and upon returning home, found the deceased lying on the floor with foam emanating from her nose. She had also urinated on herself. He testified that he went out to seek help and obtained a lift to Bungoma Police Station, where he arrived at about 10.00 p.m. He informed the police that he had found his wife lying on the floor, following which the police escorted him to Webuye Police Station where he directed the police to his house. He denied the allegation that he had quarreled with the deceased on the material date, though he admitted having seen his neighbour, PW3, when he arrived home with the deceased. He denied causing the deceased’s death. 8.After full trial, the learned trial Judge held that the prosecution had sufficiently established its case against the appellant. The appellant was subsequently convicted as charged and sentenced to serve twenty years’ imprisonment. 9.The appellant, dissatisfied by this decision, lodged this appeal.He proffered seven grounds of appeal. In summary, the appellant faulted the learned Judge for finding that the prosecution had established all the elements of the information of murder. He was of the view that the learned Judge misapprehended the facts of the case and arrived at a wrong conclusion, by finding that: the evidence of PW2 and PW5 was corroborative; the defensive injuries sustained by the deceased were severe, when in fact the said injuries were superficial;failing to find that the crime scene was not disturbed so as to indicate signs of a struggle; finding that the appellant had reported to PW7 that he had killed the deceased, when there was no OB extract produced in court to that effect; and, finding that the injuries sustained by the deceased were inflicted by the appellant when no murder weapon was recovered or produced. 10.The appeal was heard by way of written submissions. Mr. Opondo, learned counsel for the appellant, submitted that the prosecution failed to establish malice aforethought, as per its definition under Section 206 of the Penal Code. He explained that no murder weapon was recovered, and that the injuries suffered by the deceased were superficial, and incapable of incapacitating an adult, going by the evidence adduced by PW1. He argued that the fact that the appellant was the one who reported the incident to the police spoke to his lack of intent. It was his submission that the evidence of PW2 and PW5 was inconsistent, as PW5 testified that only herself, the deceased and the appellant were in the compound on the material date, yet PW2 told the court that she was also at the scene. He urged that the circumstantial evidence relied on by the prosecution was insufficient to sustain a conviction. He invited us to allow the appeal as prayed. 11.Mr. Otieno, learned Assistant Director of Public Prosecutions, opposed the appeal. It was his submission that the fact and cause of death of the deceased was established by PW1, who produced the deceased’s post mortem report. He maintained that according to the report, the deceased suffered severe head injury caused by blunt force trauma. She also sustained defensive injuries. He submitted that circumstantial evidence pointed to the appellant as the person who caused the death of the deceased. He explained that the evidence of PW2 and PW5 established that the appellant and the deceased entered the house, after which a commotion ensued. Screams were heard. Shortly thereafter, the appellant exited the house, leaving the deceased inside. He locked the house from the outside. The deceased’s body was later recovered from the house by the police. 12.Mr. Otieno submitted that an epileptic fit was rightly excluded as the cause of death. He pointed out that the appellant presented himself at the police station and confessed to having killed the deceased. It was his submission that circumstantial evidence pointed to no one else but the appellant as the perpetrator. 13.With regard to whether malice aforethought was proved, Mr.Otieno conceded that the learned Judge failed to make a finding on whether the same was established by the prosecution. He however urged that based on the head injuries sustained by the deceased, as well as the defensive injuries noted, the appellant had intentionally caused the death of the deceased. He argued that malice aforethought can also be inferred from the fact the appellant did not take any steps to ensure that the deceased got medical attention after assaulting her, but instead locked her in the house. 14.On sentence, Mr. Otieno opined that the appellant’s custodial sentence of twenty (20) years was commensurate with the offence. The trial court had properly exercised its discretion. He invited us to dismiss the appellant’s appeal on both conviction and sentence. 15.We have carefully considered the record of appeal, the grounds of appeal, the submissions by both parties, and the law. This being a first appeal, our mandate is as was aptly set out in the case of Okeno vs. Republic [1972] EA 32, as follows:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. R. [1957] E.A. 336) and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the 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 v. Sunday Post, [1958] E.A. 424.” 16.This appeal turns on whether the prosecution proved beyond reasonable doubt that it was the appellant who caused the deceased’s death and whether malice aforethought was established. 17.In the instant appeal, there is no dispute regarding the fact and cause of death. PW1 produced the post mortem report which indicated that the deceased sustained bruises on the right hand, back of the neck and right shoulder, had swelling at the back of the head, and blood in the brain. PW1 formed the opinion that the deceased’s cause of death was severe head injury resulting in bleeding in the brain. The injuries were caused by blunt force trauma. Contrary to the appellant’s submissions, the injuries were not superficial. The internal bleeding in the brain and swelling at the back of the head pointed to significant blunt force trauma. The evidence further disclosed injuries on the deceased’s hand which were consistent with defensive injuries sustained during an assault. 18.The appellant sought to attribute the deceased’s death to epilepsy. We are however unable to agree with that assertion. First, PW3, the deceased’s brother, expressly denied that the deceased suffered from epilepsy. Secondly, the medical evidence did not support the claim that death arose from an epileptic episode. PW1 was categorical that the deceased’s cause of death was severe head injury caused by blood in the brain. The post mortem findings therefore effectively displaced the appellant’s alternative explanation. 19.The prosecution’s case rested substantially on circumstantial evidence. The principles governing reliance on circumstantial evidence are now settled. The inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. This threshold was highlighted in Sawe v Republic [2003] KLR 364 where this Court observed as follows:“In order to justify on circumstantial evidence, the inference of guilt, the 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. There must be no other co-existing circumstances weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remain with the prosecution. It is a burden which never shift to the party accused.” 20.Upon our own re-evaluation of the evidence, we are satisfied that the chain of circumstantial evidence irresistibly pointed to the appellant as the perpetrator. Both PW2 and PW5 testified that they saw the deceased enter the appellant’s house. PW5 further saw the appellant enter the house shortly thereafter. Both witnesses heard a quarrel and screams emanating from inside the house. Shortly thereafter, the appellant emerged alone, locked the house from outside and left. The deceased was not seen leave the house alive. Her body was recovered from the same house later that evening, covered with a blanket. 21.We are not persuaded by the appellant’s argument that the evidence of PW2 and PW5 was contradictory. The alleged inconsistency as to who was present in the compound was minor and did not go into the root of the prosecution’s case. In any event, the appellant himself admitted in his defence that he saw PW5 in the compound when he arrived home with the deceased. That admission materially corroborated PW5’s presence at the scene and reinforced the credibility of her account. More importantly, the evidence of PW2 and PW5 was consistent on the material particulars: that the deceased and the appellant entered the house, a commotion ensued, and the appellant later emerged alone from the house and locked the house. Their evidence was therefore mutually corroborative. 22.The appellant also faulted the learned Judge for failing to acknowledge the absence of evidence showing disturbance at the scene and the fact that no murder weapon was recovered. In our view, neither factor weakened the prosecution’s case. The offence was committed inside a locked house to which the appellant had exclusive access and control immediately before the deceased’s body was discovered. Further, recovery of a murder weapon is not a mandatory requirement where there is cogent evidence connecting an accused person to the offence and the scene of crime. In the present case, the appellant informed PW5 that he had beaten his wife, and later reported to PW7 that he had assaulted his wife and that she died in the process. The medical evidence established that the deceased died from blunt force trauma. The absence of the weapon used therefore did not create any reasonable doubt with regard to the circumstances of this case. 23.The appellant further argued that the prosecution failed to produce an OB extract to confirm the report allegedly made to PW7. While production of the OB extract would have been desirable, its absence was not fatal. PW7 testified that the appellant reported at Bungoma Police Station and stated that he had killed his wife. The appellant himself admitted that he presented himself at the police station that night. The appellant led police officers to his house where the deceased’s body was recovered. His conduct before and after the incident formed part of the circumstantial evidence properly considered by the trial court. 24.We are equally satisfied that malice aforethought was established. Under Section 206 of the Penal Code, malice aforethought may be inferred from, among other things, the nature of the injuries inflicted, the part of the body targeted, and the conduct of the offender before and after the attack. The deceased sustained severe head injuries leading to bleeding in the brain. The injuries were not superficial, as suggested by the appellant, but were grave and life-threatening. The severe swelling at the back of the head and blood in the brain demonstrated the use of considerable force directed at a delicate and vulnerable part of the body, thereby evidencing an intention to cause grievous harm or death. 25.The defensive injuries on the deceased’s hands further demonstrated that there was a violent altercation during which the deceased attempted to ward off the attack. The appellant’s conduct after the assault further reinforced the inference of malice aforethought. Instead of seeking urgent medical assistance for the deceased, he locked the house from outside and left her inside. He changed his shirt and abandoned the scene. 26.We therefore find that the prosecution proved beyond reasonable doubt that it was the appellant who unlawfully caused the death of the deceased and that he did so with malice aforethought. We discern no basis upon which to interfere with either the conviction or the sentence imposed by the learned Judge. The sentence of twenty (20) years’ imprisonment cannot be said to have been harsh or excessive considering the circumstances of the offence. It was a case of gender based violence. 27.In the end, the appeal against both conviction and sentence lacks merit and is hereby dismissed in its entirety. DATED AND DELIVERED AT KISUMU THIS 12TH DAY OF JUNE, 2026.ASIKE-MAKHANDIA ............................ JUDGE OF APPEALH.A. OMONDI.........................JUDGE OF APPEALL. KIMARU............................... JUDGE OF APPEALI certify that this is a true copy of original. DEPUTY REGISTRAR