https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12982

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MALINDI CRIMINAL APPEAL NO. E018 OF 2025 FREDRICK GITIYE MUNG’ATHIA……………………………………………………………..APPELLANT VERSUS REPUBLIC…………………………………………………………………………………………. RESPONDENT JUDGMENT ***Being an Appeal from Judgment and sentence of Hon. J.S Wesonga SPM in Malindi Chief Magistrate’s Court Criminal Case No. MCCR E053 of 2023 delivered on 31st October, 2025)*** The appellant was charged with the offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. The particulars of the charge were that on 5th day of January, 2023 at Soweto village, in Malindi Sub County within Kilifi County unlawfully killed John Mulwa Muye. The appellant pleaded not guilty when he was arraigned in court on 18th January, 2023. The matter proceeded with the prosecution calling six witnesses to prove the charges against the appellant. The appellant when placed on his defence he gave sworn statement. In a judgment delivered on 31st October, 2025, the trial magistrate found the appellant guilty of the offence of manslaughter and accordingly convicted him. Subsequently the trial magistrate sentenced the appellant to serve twenty years imprisonment. The appellant was aggrieved by the conviction and sentence by the trial court and preferred this appeal raising eight grounds which are in the submissions. They are: 1. *The trial court erred in law and fact by convicting the appellant on contradictory, inconsistent and irreconcilable evidence presented by the prosecution witnesses;* 2. *The trial court erred in law and fact by failing to properly evaluate the medical evidence and establish the causation of the deceased death;* 3. *The trial court erred in law and fact by failing to consider the defence of self-defence as provided for under Section 17 of the Penal Code;* 4. *The trial court misdirected itself on the law regarding identification evidence by failing to apply the mandatory guidelines established in R vs Turnbull (1977) QB 224;* 5. *The trial court erred in law and fact by failing to properly apply the correct standard of proof beyond reasonable doubt;* 6. *The trial court erred in law and fact by failing to properly evaluate and address procedural irregularities in the investigation and prosecution of the case;* 7. *The trial exercised his discretion improperly and unlawfully in sentencing by imposing excessive harsh and manifestly disproportionate sentence of twenty years imprisonment;* 8. *The trial court erred in law and fact by failing to consider whether the evidence established any of the alternative verdicts that could properly be returned in a trial for manslaughter.* The evidence adduced during the trial as set out by the prosecution witness can be summarized as follows: PW1 testified that on 25th December, 2022 he was at home when PW5 Abel Waita Mutisya came and told him that Mulwa Muye the deceased had been injured. He went to the scene and found the deceased bleeding on nose, mouth and ears. PW5 took the deceased to hospital with a neighbour by the name Karanja PW2 who had a motorbike. The deceased was brought back from hospital but he was still unwell and he was taken back to hospital on 26th December, 2022 where he was admitted. He went to hospital and found the deceased struggling to eat. The deceased was later discharged but he got more worse and he was taken for CT scan and went back to hospital and was discharged on 31st December, 2022 but on 2nd January, 2023 he got worse and was taken to hospital again. Later on, 5th January, 2023 he passed on. In cross-examination PW1 said he did not witness the fight between the deceased and the appellant only that he was informed by PW5 of the incident. He further stated that he did not follow up to know where the problem started. PW2 a boda boda rider told the court that on the material date he went to work. He had forgotten his phone at home. Around 12 noon he went home to pick his phone. Upon entering the gate, he found the appellant holding the deceased by the collar while the deceased was lying down facing up. The appellant continued punching the deceased on the head. PW5 came to the scene and when the appellant saw him he stopped fighting the deceased and went after PW5 who ran away. The appellant then went back to the deceased who was now standing and punched him again despite the deceased asking him to talk of the issue. He then kicked him on the head and stepped on him. The deceased at the time had become unconscious. He took the deceased to the hospital where he was treated and went home. He did not show signs of improvement and the following day he was taken to hospital again. He became worse and on 29th December, 2022 he was taken back to hospital where he was treated and discharged. He became worse and on 2nd January, 2023 he was taken to hospital again. He later succumbed on 5th January, 2023. In cross-examination he said he found the appellant and the deceased fighting but he did not know the reason for the fight. PW3 testified that on the material date he came from work at around 4pm when he found his brother the deceased inside the house having been injured. On asking him what had happened he told him that he had been beaten by the appellant. The following day he went to stay with the deceased. Then on 26th December, 2022 he took him to hospital. He attended to him until he died on 5th January, 2023. In cross-examination he said he was not present when the appellant and the deceased fought. PW4 a medical doctor was called to produce the postmortem report done on 12th January, 2023 at Malindi Sub County hospital. The same was of a male adult aged about 32 years and the body was well preserved. He noted that the deceased had racoon eye on the right eye a sign of skull fracture. The fingernails and lips were bluish a sign of poor oxygenation. On examination of the central nervous system, he found an epidural hematoma on the right side of brain. There was also bleeding in the brain. He concluded that the cause of death was severe head injury secondary to blunt head trauma. PW5 testified that in 2022 he was staying in Malindi at Muyeye area. He was assisting Julius Githangari in his muguka shop. Julius Githagari who was away at the time told him that the appellant would supply muguka to him in the shop. On 25th December, 2025 while in the shop around 12.00 noon the appellant came and asked him why he was sleeping accusing him joking with the work. The appellant asked for money but he told him that the same was in the phone and he did not have the phone with him. He closed the shop and together with the appellant they proceeded to his house. As they arrived in the compound the appellant hit him at the back of his neck. When he asked him why he was hitting him he told him that he was joking with work. The deceased who was around intervened. The appellant pulled the deceased and punched him on the chin. At the time the deceased was drunk and he tripped and fell down. The appellant stepped on him on the shoulders. He ran away. The appellant chased him but could not catch him. The appellant went back. The deceased was trying to get up but the appellant attacked him and punched him on the head. And he fell down again and the appellant stepped on him. The appellant walked away. PW2 came and took the deceased to hospital. The condition of the deceased worsened and he succumbed to the injuries on 5th January, 2023. PW6 took over the investigations of the case from Cpl. Norman Maroo who had been transferred. He confirmed that on 29th December, 2022 a case of assault was reported at the station. He confirmed that the deceased had been taken to hospital but his condition worsened and he later succumbed to the injuries while undergoing treatment. The appellant was later arrested on 6th January, 2023 and after investigations he was charged with the offence of manslaughter. The appellant in his defence confirmed that the deceased was known to him. He said on 5th January, 2023 he was in his shop when police officers came and arrested him on allegation of killing the deceased. He said he did not have bad blood with the deceased neither was the deceased his employee. He said on 25th December, 2022 his brother Julius Gitonga had travelled leaving him to check over his shop. He received information that the shop attendant was too drunk and when he went to the shop he found him sleeping. When he asked him for the proceeds of sale he said the money was at home. They closed the shop and proceeded to the shop attendant’s home which was about 50 metres away. Upon entering the compound, they found two men drinking mnazi. He said the deceased and the other man who were drunk tried to push him outside the compound. He overpowered them and proceeded to the shop attendant who ran away. He informed his brother that the shop attendant had run away. He said he did not intend to kill the deceased. In cross-examination he said he knew the deceased. He said he had an altercation with the deceased who was drunk. He said the deceased pushed him trying to stop him from following the shop attendant. He said he was not violent. He confirmed that he pushed the deceased and he fell down. He maintained that he did not intend to kill the deceased. The appellant in his submissions contended that the conviction was based on contradictory and irreconcilable evidence. He argues that the evidence of PW2 and PW5 was contradictory. He submitted that PW2 stated that when he arrived at the scene he found the appellant holding the deceased by the collar while the deceased was lying down which is in contrast with that of PW5 who said he arrived at the compound with the appellant who hit him on the back whereupon the deceased who was standing intervened and but the appellant punched him. It is further the submission by the appellant that the evidence of PW2 that he kicked the deceased is in contrast with that of PW5 who was at the scene and did not state that the appellant kicked the deceased. The appellant further argued that there was contradiction as to who took the deceased to hospital. The appellant argued that the trial court failed to consider the contradictions in the prosecution case. The appellant further submitted that the trial court failed to properly evaluate the medical evidence as to the causation of the deceased death. His argument is that the postmortem was conducted seven days after the death of the deceased and eleven days after the alleged incident. According to the appellant the trial court failed to consider whether the injuries allegedly inflicted on the deceased were the direct and substantial cause of the death and that any intervening factors did not break the chain of causation. The appellant further submitted that the trial court failed to consider and evaluate the appellant’s defence of self-defence as provided for by the law. The appellant argued that he had a lawful reason to being in the compound where the incident took place as he was entitled to collect his brother’s money from PW5. It is his argument that it is the deceased who attacked him while in the compound by pushing hum out of the compound thereby creating a situation where he had to defend himself. The appellant faulted the trial court for not considering that even though there was altercation, he was acting in self-defence when confronted by the deceased and another person who were attempting to forcefully remove him from the compound. The appellant further submitted that the trial court failed to warn himself regarding the dangers of mistaken identification. His argument is that PW5 referred the appellant as “Mwalimu” which was not his real names hence the trial court ought to have warned himself on relying on identification evidence given that the said name can belong to anyone. Further the appellant argued that the trial court failed to apply the correct standard of proof of beyond reasonable doubt. His argument is that the finding of the trial court that the prosecution had established the three ingredients of the offence was not supported by evidence. He submitted that the trial court did not give weight to contradictory and inconsistent prosecution evidence while at the same time dismissing the appellant’s defence and also relying on questionable medical evidence. In the circumstances, it is the appellant’s argument that all this created reasonable doubt in the prosecution case. The appellant further argued that the trial court failed to consider the procedural irregularities in the investigation and prosecution case which violated his right to fair trial under Article 50 of the Constitution. His argument is that PW6 the investigating officer stated that he took over the investigations from another officer who had indicated that the case reported was of assault. Subsequently, the case was transformed to that of manslaughter after the death of the deceased. He argues that he was not given proper notice of this change in the nature of the charge. He thus argues that he was not accorded opportunity to prepare his defence to the charge of manslaughter. The appellant finally faulted the trial court for imposing excessive sentence violating his right to under Article 50(2)(n) of the Constitution which guarantees every accused person the right not to be sentenced to punishment that is greater than the prescribed punishment for the offence. He appreciated that the sentence for manslaughter is life sentence but argued that the sentence of 20 years was excessive in the circumstances. He also faulted the trial court for not considering his mitigations in imposing the sentence especially that he was a first offender, that he is a trained and registered teacher, he has a small-scale business, he is the sole breadwinner for his family, that the incident was purely spontaneous with no premeditation and that he expressed remorse during the mitigations. The respondent contested the appeal. It was submitted that there were no contradictions on the part of the prosecution case as alleged by the appellant. Reliance was placed on the case of ***Richard Munene vs Republic (2018) e KLR.*** It is argued that the evidence adduced by the prosecution was cogent, consistent and corroborative and proved all the elements of the offence beyond reasonable doubt. The respondent further argued that the prosecution properly discharged its burden as required submitting that the trial court properly evaluated the evidence and arrived at correct finding that the offence was proved beyond reasonable doubt. It is also the respondent’s submission that the appellant’s defence was properly considered and it was found not to controvert and dislodge the prosecution’s case. In any case it is the submission of the respondent that the appellant admitted that he did not intend to kill the deceased. This being a first appeal to the High Court, and as expected, I have examined the record, re-evaluated the evidence adduced before the trial court and drawn my own independent conclusions. I have done so without overlooking the fact that I did not have the opportunity to see and hear the witnesses testify in court. ***(See Okeno vs Republic (1972) E.A 32).*** Further I have reminded myself that it is the duty of the prosecution to prove charges against an accused person beyond reasonable doubt as restated in numerous authorities like in the case of ***Stephen Nguli Mulili vs Republic (2014) e KLR*** where the court cited the case of ***DPP vs Woolmington (1935) UKHL 1*** and reiterated that it is the duty of the prosecution to prove its case and that remains the Kenyan position. The appellant was charged with manslaughter contrary to Section 202 as read with 205 of the Penal Code. Section 202(1) of the Penal Code creates the offence of manslaughter. It provides: ***“Any person who by an unlawful act or omissions causes the death of another person is guilty of the felony termed manslaughter.”*** What amounts to unlawful act is defined in Section 202(2) of the Penal Code which provides: ***“An unlawful omission is an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health, whether such omission is or is not accompanied by an intention to cause death or bodily harm.”*** Section 205 of the Penal Code provides for the punishment for the offence of manslaughter which is life sentence. The prosecution case rested on the evidence of six witnesses. The evidence adduced by the prosecution witnesses was both direct and circumstantial in nature. PW2 was the eye witness. He testified that he found the appellant assaulting the deceased. PW5 on his part testified that when he went to the compound with the appellant, the appellant hit him. The deceased intervened, and the appellant punched him on the chin. The deceased who was drunk fell down and the appellant stepped on him. Following the injuries the deceased was taken to hospital but his condition deteriorated leading to his death. From the forgoing evidence there is no dispute that the deceased died after the assault. The appellant in his first ground of appeal argued that the evidence of PW2 and PW5 was contradictory. In the case of ***Richard Munene vs Republic (2018) e KLR*** the Court of Appeal in discussing contradictions and inconsistencies of the prosecution witnesses stated: ***“Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused. It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issue in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.”*** Further, in the case of ***Erick Onyango Ondeng’ vs Republic (2014) e KLR*** the Court of Appeal further cited the Ugandan case of ***Twahangane Alfred vs Uganda Crim Appeal No 139 of 2001 (2003) UGCA*** where it was held that: ***“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”*** In the instant case, the contradictions and inconsistencies alluded to by the appellant is that PW2 testified that he found the appellant holding the deceased by his collar while the deceased was lying on the ground while PW5 said that the appellant hit the deceased when he attempted to intervene after the appellant hit PW5. The bottom line is that the appellant assaulted the deceased. These are minor contradictions which does not go to the core of the charges the appellant faced. It is not in doubt that the appellant inflicted harm to the deceased. The appellant faulted the trial court for relying on the medical evidence as to the cause of the death of the deceased. The postmortem report indicated that the deceased died due to sever head injury secondary to blunt head trauma. It is true as argued by the appellant that the deceased did not die immediately. He underwent treatment for the injuries he sustained before he succumbed. There was nothing to show that there were any intervening circumstances so as to presume that the deceased death was caused by other causes other than the injuries inflicted by the appellant. Further the appellant argued that if at all he caused the death of the deceased he did so in self-defence. When it comes to manslaughter, the defence of self-defence forms a fine line. In this case, the evidence adduced by the prosecution witnesses is that the appellant used force on the deceased who was intoxicated. The appellant action was not justifiable in the circumstances so as for defence of self-defence to be accorded to the appellant. The circumstances under which the appellant inflicted the injuries to the deceased were unlawful. The appellant argued that there were procedural irregularities in that the initial report was of assault but he was charged with manslaughter. It is true that the initial report as indicated by the investigating officer was assault. However, it is clear that at the time the charges were preferred, the deceased had passed on. The record is clear that the appellant was charged with manslaughter. The argument that he was not accorded opportunity to prepare for his defence is neither here nor there as the charges preferred against the appellant when he was arraigned in court was manslaughter. In any case, in his defence he was categorical that he did not intend to kill the deceased. This is a clear indication that the appellant was aware of the charges preferred against him. In the circumstances, I find the appeal on conviction unmerited. Regarding the sentence imposed by the trial court, it trite that when it comes to sentence, the courts must balance the core objectives of sentencing like retribution, deterrence, rehabilitation and restorative justice. In doing so the core values to be considered are proportionality, uniformity human right consideration such respect for fundamental freedoms and avoidance of cruelty. From the record, the appellant was a first offender. In his mitigation he prayed for forgiveness. I have also noted that the killing of the deceased occurred in circumstances where the deceased was drunk and he is the one who confronted the appellant who had come to the compound to collect money from PW5 who was employed by the appellant’s brother. In the circumstances I find the sentence imposed by the trial court excessive. I do hereby substitute the said sentence of 30 years to 10 years which shall run from the date the appellant was sentence by the trial court. Orders accordingly. **Dated, signed and delivered virtually this 18th day of August, 2026.** **Francis Kyambia** **Judge**