https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1617

Kayaya v Republic (Criminal Appeal E054 of 2026) [2026] KECA 1617 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1617 (KLR) Republic of Kenya In the Court of Appeal at Meru Criminal Appeal E054 of 2026 SG Kairu, HI Ong'udi & M Sila, JJA July 31, 2026 FORMERLY NYERI NO. 68 OF 2020 Between Joseph Maore Kayaya Appellant and Republic Respondent (Being an appeal from the judgment of the High Court of Kenya at Meru (Lenaola, J) dated 16th November 2006 in High Court Criminal Case No. 45 of 2001) Judgment 1.This is an appeal from the judgment of the High Court of Kenya at Meru delivered on 16th November 2006 by Lenaola, J (as he then was), wherein the appellant Joseph Maore Kayaya was convicted of murder contrary to Section 203 as read with Section 204 of the Penal Code and sentenced to death. 2.The facts are that on 17th October 2000 at around 10.00 pm at Kiunyene sub location Kanuni location in Meru North District of the then Eastern Province, the appellant murdered Michael Ntonja Maroo. The appellant denied the information and thereafter the case proceeded to full hearing with the prosecution calling six (6) witnesses while the appellant gave unsworn evidence without calling any witness. A summary of the evidence adduced before the trial court will suffice. 3.PW1, Patrick Gikundi testified that on 17th October 2000 at 10.00 pm he was in his house and just about to go to bed when he heard the deceased (his brother) screaming and calling his name. This was at the Market where PW1 had rented a house. He rushed out and found the deceased being beaten by the appellant and others. PW2, Batista Muthiga was among those present. PW1 was able to identify them using the light at the Market place. When he inquired as to why they were assaulting the deceased, the appellant assaulted him on the head and right leg. He fell down and PW2 helped him and took him to his house. By then, the deceased had collapsed and the appellant had lit up some papers which he used to burn him. 4.PW1, stayed in his house with PW2 till the next morning, when the appellant came and asked him “have you not died? I want to bury you.” The appellant again assaulted him in the presence of PW2. This time he assaulted him on the left ankle and took off. On the same morning PW2 and his wife brought the deceased to PW1’s house. They left him there as he was already dead while his brother Julius Mbaabu (PW4) took him (PW1) to hospital. 5.In cross examination he said the appellant was in the company of PW2, Tito and two others when the deceased was being assaulted. PW2 and Tito tried to intervene in vain as he claimed the deceased had stolen his miraa. The witness had no documents to show he had been injured. 6.PW2, Batista Mwithia told the court that on 17th October 2000 at 8.30 pm he was at his home with David Gikundi having supper when the appellant called them outside. He was able to see him well as he knew him and there was moonlight. The appellant told them his miraa had been stolen and he wanted them to show him the thief. Using a long panga and rungu he forced them to take him to Michael’s (deceased) and Ntanja’s place. They woke up the deceased and that is when the appellant hit him on the head, leg and ribs. This was outside the deceased’s house. PW2 went and informed the deceased’s father who came to the scene where they found the deceased and took him to PW2’s house. With him was PW4 and his brother David Gikunda. The deceased died the next morning after a second assault by the appellant. A report was made at Maua police station and the body was taken to the station then later to the mortuary. 7.In cross examination he said the appellant was alone when he came to his house. He denied stealing the appellant’s miraa, nor seeing Mr. Karimi (appellant’s watchman) assaulting the deceased. He insisted that the appellant had used his long panga and rungu to assault the deceased. Further that he saw the appellant try to burn the deceased on the legs with a match box and dry leaves from bananas. 8.PW3, Robert Ntonja testified that on 18th December 2000 at 8. 00 am he was at Kanuni Township, Athuki road where he found the appellant. He said he had found the appellant assaulting the deceased using a big stick and a panga while claiming that the appellant and Gikundi were thieves. He notified the deceased’s brother Mbaabu (PW4) who came with other people and the appellant ran away. He was followed upto Thaichu where he was found taking tea. Their efforts to arrest the appellant were thwarted by someone who tried to shoot them with arrows giving the appellant an opportunity to run away. A report was made to the police and the appellant was later arrested while at Nkunja’s home. 9.In cross examination he explained that he is related to the appellant. He learnt from PW1 and PW2 that the incident had started the previous night when it was alleged that the deceased had stolen miraa. 10.PW4, Julius Mbaabu Marao is a brother to the deceased. He told the court that on 18th October 2003 at 8.00 am he was called by (PW2) who informed him that the deceased had been beaten by the appellant and he had died. He went to PW2’s home where the deceased was lying dead. They went looking for the appellant and found him in Thaichu with his friends. On seeing them he ran away to his in-laws and locked up himself in a house. He was however later arrested by the police after the deceased’s body had been taken away to the mortuary. A post-mortem was conducted on 24th October 2000. 11.PW5, No. 46536 PC Joseph Kemei, stated that on 18th October 2000 he was at Maua police station when he was instructed by the OCS to go with PC Maganjo to a scene of murder at Kiunyene village, Kanuni location. They found the deceased’s body lying outside his house and tried to trace the suspect in vain. However, on 19th December 2000 the suspect who is the appellant was brought by PC Kera to the station. The deceased’s body was taken to Mau District Hospital. On 24th October 2000 he escorted the deceased’s relatives for the post-mortem, at the hospital mortuary. On 26th October 2000 he escorted the appellant for mental and age assessment. There being no objection by the defence, the assessment report was produced as PEXB1 while the post- mortem was marked as MFI 2, and later produced as PEXB2 by PW6. 12.PW6, Dr. Wachira Maina was a qualified doctor at Mau Methodist Hospital, since the year 2004 and had worked with Dr. Kimani who had left the said hospital in 2003. He confirmed having interacted with him professionally and personally. He recognised his handwriting and signature. The defence had no objection to PW6 producing the post mortem report authored by Dr. Kimani. It was produced as PEXB2. The report showed that the deceased had bruises, lacerations, fractures all over the body, haematoma on the area underlying the skull and a compressed spinal cord. The doctor found the cause of death to be respiratory failure as a result of cervical chord compression which followed cervical chord failure secondary to assault with a haring object. 13.In cross examination PW6 was referred to page 1 of the post mortem report whose report to the police showed that the deceased had been hit with a club on the back, chest and head. He explained that a club could be a heavy object depending on its size and it can be the cause of injuries leading to death. 14.When placed on his defence, the appellant on 29th March 2006 elected to give sworn evidence. However, on 27th June 2006 when the case came up for defence hearing he decided to give unsworn evidence without calling any witness. He told the court that on 17th October 2002 at 10.00 am when he was guarding his miraa, thieves came and found him there. Among the thieves were PW1, the deceased, PW2 and Gikundi. They started harvesting the miraa. On asking them why they were doing that they claimed to own the miraa. They abused him and a fight broke out. He had a walking stick while his attackers had pangas and rungus. 15.It was his evidence that they fought for 1 ½ hours, and he suffered cuts on his finger. He admitted having injured the deceased during the fight by hitting him with a walking stick. That he thereafter ran away and went to the forest. The next day he went to Maua Methodist Hospital for treatment. He also confirmed being aware that the deceased died after the attack. He said he never intended to kill the deceased and so he should have been charged with manslaughter. He added that he had severally offered a plea bargain to the charge of manslaughter, but it was not fruitful. 16.Upon full evaluation of the evidence the trial court found that the prosecution had proved all the ingredients of the offence of murder of the deceased. He was thereafter convicted of the same and sentenced to death. 17.Being aggrieved, the appellant challenged the said conviction and sentence on the grounds that:1.The charge of murder was not proved; 2.The evidence adduced was not sufficient to sustain a conviction; 3.The evidence did not link him to the offence; 4.His defence was not considered without any reasons being given and 5.Finally, malice aforethought was not proved. 18.Both parties filed written submissions in arguing the appeal.The appellant’s amended submissions are dated 9th April 2026 and were filed by him in person. The respondent’s submissions are dated 14th April 2026 and were filed by M/s Joyce Gacheru, Principal Prosecution Counsel. 19.When the appeal came for plenary hearing on 20th April 2026, learned counsel Mrs. Mutegi appeared for the appellant while learned counsel M/s Gacheru appeared for the respondent. Both counsel wholly relied on their written submissions. 20.It was counsel Mutegi’s submission that there were inconsistencies in the evidence of PW1, PW2 and PW3. On the element of malice aforethought she submitted that the same was not established as there was no evidence showing the nature or severity of injuries, probable weapon used and or deliberate infliction of fatal harm. That at most the offence established was manslaughter and not murder. The next discrepancy referred to is in respect of the date and the scene of incident. The appellant referred to the evidence of PW2, PW4 and PW6 who referred to 18th October 2000 and 18th December 2000 as the date of incident. Further, that their evidence varied as to who was present during the incident and the exact scene of incident. 21.Reference was made to the case of Republic Vs. Kariuki & Another [2024] KEFC 8535 where the High Court held:“contradictions which strike at the core of the prosecution’s case must be resolved in favour of the accused.” 22.It was further submitted that the record did not have the initial pleas, and the mental assessment was done without a court order which to the appellant were violations to his rights under Articles 49 and 50 of the Constitution. It was his argument that there was no connection between the assault he committed and the death of the deceased. The appellant also challenged the production of the post mortem report and the P3 form by persons other than the makers. He cited the case of Kamau Vs. Republic [2024] KCCA 1022 in support. 23.The appellant contended that his defence and mitigation were never considered by the superior court. He argued that the law allows for reduction of a charge even though the person was not charged with the lesser offence. On this he referred to the case of Mdzomba Vs. Republic (Criminal Appeal 29 of 2020). He further argued that he was arrested in the year 2000 and was convicted and sentenced on 16th November 2006 before the decision by the Supreme Court in Francis Kioko Muratetu & Another Vs. Republic [2017]eKLR on the unconstitutionality of the mandatory death sentence in murder cases. He thus urged the court to consider the twenty (20) years he has been in prison and have him released. 24.The appeal was opposed by the respondent. Learned counsel Ms. Gacheru submitted on the grounds raised by the appellant. On the issue of malice aforethought she referred to section 206 of the Penal Code which defines it. She further cited the case of Hyam Vs. DPP [1974] AC where the Court held that:“Malice aforethought in the crime of murder is established by proof beyond reasonable doubt when during the act which led to the death of another accused knew that it was highly probable that, that act would result in death or serious bodily harm.” 25.Learned counsel referred to the evidence of PW1 and PW2 which she argued confirmed the attack (twice) and the use of crude weapons which caused serious injuries on the head and ribs of the deceased. The same she said were confirmed by the post mortem report. It was her contention that the appellant knew that his acts would result in death or serious bodily harm. 26.Learned Counsel outlined the elements of the offence of murder as set out in the cases of Anthony Ndegwa Ngairi Vs. Republic [2014] eKLR and Nzuki Vs. Republic [1993] KLR 171. She submitted that the evidence of PW1, PW2 and PW3 placed the appellant at the scene as the aggressor in the said assault. That, PW5 the doctor gave the cause of death as “Respiratory failure following cervical chord compression which followed cervical chord failure secondary to assault with a heavy object.” 27.On failure by the court to consider the appellant’s defence and claim of self defence counsel submitted that the appellant admitted in his defence having inflicted injuries on the deceased in self defence. She said all this was considered by the trial Judge who found it to be an afterthought since there was no element of provocation 28.Having considered the record, the submissions by both counsel and the applicable law, two broad issues arise for determination namely: whether the prosecution proved the charge of murder against the appellant beyond reasonable doubt and whether the sentence imposed was lawful and appropriate in the circumstances. 29.This being a first appeal, this court has a duty to re-evaluate and re-consider the evidence on record and arrive at its own independent conclusion. It must also bear in mind that unlike the trial court it did not see nor hear the witnesses and must give an allowance for that. See Okeno Vs. Republic [1972] EA 32, Njoroge Vs. Republic [1989] KLR 313, Ajode VS. Republic [2004] 2 KLR 81 and Mwangi & Another Vs. Republic [2004] 2 KLR 32. 30.Section 203 of the Penal Code defines murder as the unlawful killing of another person with malice aforethought while Section 206 of the Penal Code outlines the circumstances constituting malice aforethought. It is therefore the duty of the prosecution to prove all the elements of the charge beyond reasonable doubt. The elements which must be proved are:i.The death of the deceased and its cause.ii.That the appellant committed the unlawful act that caused the death of the deceased (actus reus).iii.That the appellant had malice aforethought/ intention to kill (mens rea). 31.From the evidence on record the death of the deceased and its cause are not in dispute. The appellant does not dispute this fact. On who committed the unlawful act that caused the death, the appellant has confirmed having been at the scene. Secondly, that he had hit the deceased with a walking stick during the fight. This is well supported by the evidence of PW1, PW2 and PW3 who testified to witnessing the appellant assaulting the deceased severally with a crude weapon on 17th October 2000. It is the injuries that the accused afflicted on the deceased on these two instances that led to his death. 32.In his unsworn defence, the appellant said he suffered some cuts on his finger but there was no medical evidence to prove that. Secondly, he never mentioned the deceased as the person who caused the said cuts on him. The bottom line is that the appellant assaulted the deceased and the injuries suffered were the cause of the deceased’s death. 33.The next issue is whether in killing the deceased the appellant had malice aforethought. Malice aforethought is defined under Section 206 of the Penal Code and is established if any of the following is proved, an intention to cause death or grievous harm to a person which results in the death of the person or another person, or knowledge that the act or omission causing death will cause grievous harm, or death to the person or another person, or an intent to commit a felony. 34.It was the appellant’s evidence that the fight took place on 17th October 2000 at 10.00 am. PW1, PW2, PW3 and PW4 told the court that the first incident occurred at night on 17th October 2000. It was the second assault that occurred on 18th October 2000 morning. This was never contested during the hearing and cross examination and that remained as the position. The appellant raised an issue on his mental assessment. This is part of police investigations and the police don’t have to wait for court orders before taking a suspect for the said assessment. 35.From the evidence adduced three things come out clearly pointing to the malice aforethought, in this case. First is the kind of weapons the appellant used to inflict injuries on the deceased. These were a panga and a rungu, which were crude weapons. The evidence of PW2 is very clear on this and even the appellant talked of having used a walking stick to hit the deceased. Secondly, there was no evidence of provocation by the deceased. If indeed the deceased stole the appellant’s miraa as claimed that was a criminal offence and he should have reported it to the police. Why did he come armed with crude weapons to beat up the deceased at night outside his house after forcing PW2 and another to take him there? 36.Thirdly, after seriously injuring the deceased on 17th October 2000 night, he showed up again on 18th October 2000 morning and beat him up and ran away. The deceased died thereafter. The three points above do not favour the appellant. They show that he had made up his mind to kill the deceased, which was a clear manifestation of malice aforethought. That being the case, we do not find any reason to fault the Learned Trial Judge for his finding of guilt on the charge of murder. We therefore uphold the conviction. 37.Coming to the sentence, we note that the appellant was not given an opportunity to mitigate, because at that time the death sentence was mandatory. However, following the Supreme Court decision in Francis Karioko Muruatetu & Another Vs. Republic [2017] eKLR where the said court declared the mandatory death sentence unconstitutional, we hereby set aside the death sentence imposed herein to give an opportunity to the appellant to mitigate for the Court’s consideration. This matter is hereby remitted back to the High Court Meru for mitigation and sentencing. We direct that the file be placed before the Deputy Registrar for fixing a mention date before the Presiding Judge Meru. The prosecution, appellant and his counsel MUST be notified of the mention date. Orders accordingly. DATED AND DELIVERED AT MERU THIS 31ST DAY OF JULY, 2026.S. GATEMBU KAIRU, (P), FCIArb, CArb.......................JUDGE OF APPEALH. I. ONG’UDI......................JUDGE OF APPEAL SILA MUNYAO......................JUDGE OF APPEALI certify that this is a true copy of the original.Signed DEPUTY REGISTRAR.