https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1642

Kyalo v Republic (Criminal Appeal E029 of 2025) [2026] KECA 1642 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1642 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Criminal Appeal E029 of 2025 F Tuiyott, MN Nduma & M Sila, JJA July 31, 2026 Between Joseph Takwa Kyalo Appellant and Republic Respondent (Being an appeal on conviction and sentence from the judgment of the High Court at Machakos (D.K. Kemei, J.) dated 25 January 2022 in HCCRA. No. 11 of 2018) Judgment 1.The appellant was charged alongside one Samuel Muthini Muasa (the appellant’s co-accused), with the offence of murder contrary to Section 203 of the Penal Code. The particulars of the charge were that on 16 April 2018, at Kikunuani Market, Lita Sub-Location, Mbee Location, Kathiani Sub-County, within Machakos County, they, jointly with another not before court, murdered Paul Mutuku Kiio (the deceased). The appellant and his co-accused pleaded not guilty and trial commenced. On conclusion, the appellant and his co-accused were found guilty of the offence as charged and sentenced to 25 years imprisonment each. 2.Aggrieved by the conviction and sentence, the appellant has preferred an appeal to this court. This being a first appeal, we are cognisant of the duty bestowed upon this court, which is to re-evaluate the evidence, and arrive at our own independent conclusion, being alive to the fact that we neither saw nor heard the witnesses [See Okeno v Republic (1972) EA 32]. That being the case, it is prudent that we embark on setting out the evidence presented at trial. 3.PW1, Kakungu Muteti, a watchman, was on the material night working as a night guard at Kikunuani Market, alongside his colleague, one Muli Mutisya. At the market centre was a bar named ‘Club Digital’ where there was a disco that went on up to 4 a.m. At around this time, three people came out of the bar, but he could not recognize them. It was raining. His colleague went to check and alerted him of the presence of a person lying naked, outside the club,with injuries. He called the Club Manager to the scene who in turn called the Assistant Chief and Administration Police (AP) Officers who arrived at 9.30 a.m. By this time the injured person had been taken to hospital. He later came to learn that the said person was the deceased herein who happened to be his neighbour. When he was cross-examined, he testified that he did not hear of any quarrel in the disco and that the music was loud. He did not know what happened and did not see the accused persons at the scene. 4.PW2, Muli Mutisya, is another night guard who worked at Kikunuani Market. His evidence mirrored that of PW1. He testified that there was music at ‘Club Digital’ which was turned off at 4.00 a.m. They approached the club and found the deceased lying outside injured. Later some relatives of the deceased came and took him to hospital and he learnt that he subsequently died. He did not know what transpired prior to the deceased being injured. 5.PW3, Philip Musyoki Kiio, a younger brother of the deceased, testified that on 16 April 2018, the deceased visited him and prepared a meal for him as he was indisposed. He later left. The following day, he received a call to rush to Kikunwani Market as the deceased had been beaten and killed. He went there accompanied by one David Muasa Nthiwa who was his cousin. They proceeded to ‘Club Digital’ and found the deceased lying naked and there was a large crowd. He had injuries on his head that were bleeding and blood and some watery liquid was oozing from his anal area. They got some clothes, dressed up the deceased, and took him to hospital. They later booked a report at Machakos Police Station. When he went back to hospital, he found his brother dead, and they took the body to Machakos Funeral Home. He later witnessed the post-mortem. The appellant is a relative and they had never had a disagreement there before. Cross-examined, he testified that it was raining and the clothes of the deceased were near the door of the bar. He acknowledged that the deceased used to take alcohol and could be violent when drunk. The deceased did not talk to him and did not tell him the identity of the assailants. 6.PW4, Samuel Muindi Makani, was selling miraa (khat) at Kikunuani market that evening. The deceased came and sent one Muthama to get some drinks from ‘Club Digital’. The said Muthama later came and informed them that the appellant had a birthday at the Club and requested them to join him. They proceeded to the Club and found the appellant and his co-accused drinking alcohol. The appellant went outside and closed the door. Muthama followed him outside and a quarrel ensued. The appellant came back and threw out the deceased and others on allegation that they were traitors. He later allowed the deceased back to the premises and served him some alcohol. The appellant then confronted the deceased and demanded to know why he had intended to kill the appellant’s father which the deceased denied. The appellant then pushed the deceased to the floor and he was joined by the appellant’s co-accused. They kicked the deceased and beat him with sticks. The appellant and one Ndolo stripped the deceased and took his mobile phone and cash. The appellant warned them not to interfere as this was his case. The appellant proceeded to call his father and informed him that the person who had intended to kill him was around. PW4 and the others in the Club could not intervene as they were pelted with bottles. The appellant later threw them out of the bar. The following day, he went to his shop and saw a large crowd outside the Club and there was a person outside covered with a bedsheet. He came to know that it was the deceased when he was being put in a vehicle. In court, he identified a black jacket and a white cap that the appellant was wearing on the fateful day. He had no differences with the accused persons and he considered them his great friends. He was not aware if the appellant had any differences with the deceased. Cross-examined, he testified that the incident took place between midnight and 1.00 a.m. He affirmed that the appellant started the assault on the deceased claiming that he intended to kill his (the appellant’s) father. He was able to see as the Club had lights. He testified that the appellant threw them out of the Club while the deceased remained inside with the two accused and two others, one of whom was Mutinda. He did not know what transpired after he was kicked out. 7.PW5, Raphael Munyao Mutuku, is a son of the deceased. He identified his father’s body during the post-mortem. 8.PW6, Joseph Mutua Mutuku, hails from the same village with the appellant and his co-accused and he had known them for a long time. On 16 April 2018, he was at ‘Homeboys Club’ (seemingly a miraa base) in company of others chewing miraa. One of the persons with him was Muthama. Muthama came from ‘Club Digital’ and informed them that the appellant had a birthday party and they should proceed there. The appellant at that moment emerged and confirmed the invitation. They proceeded to the Club where they met the appellant’s co-accused and others including Mutuku Nzomo. They settled at a table and contributed some money to buy alcohol. The appellant went and locked the door, but when he came back, he found it opened and he picked up a quarrel with Muthama’s sister. He subsequently ordered Muthama, his sister, PW6, and one Dan, to leave the Club. He then confronted the deceased and demanded that he furnishes him with the pistol that he intended to threaten his father with. The deceased told him that he did not have a pistol, upon which the appellant slapped him and used empty bottles to hit him viciously on the head. PW6 and others requested the appellant to allow them leave the Club but he was not ready to do so. He then attacked one Mutinda Ndolo. The appellant’s co-accused joined in attacking the deceased using a stick. They later ordered them to leave the club as the appellant mentioned that he had ‘to do something.’ At this time the deceased was lying on the ground. PW6 left the Club and went home. The following day he learnt that the deceased had died. Cross-examined, he testified that he saw the appellant and his co- accused attack the deceased. Also involved was Mutinda Ndolo. He agreed that he had been taking alcohol and that everybody at the Club was drunk. He left the Club at around 2 a.m. There were disco lights and he was able to see the attack. 9.PW7, Francis Kituku Mutua, a former classmate of the appellant, and a neighbour of both the appellant and his co-accused, was similarly at the ‘Home Boys’ miraa base at Kikunuani market with others including the deceased. The deceased was already drunk when he joined them. The appellant came and invited them to join him at ‘Club Digital’ as he was having a birthday party. The Club belonged to the appellant’s brother, one Muli. They proceeded to the Club, where they met the appellant, his co-accused, one Mutinda, and others. They started drinking ‘Kenya Cane’, a brand of alcohol. He testified that the appellant served the deceased with some alcohol and shortly left the bar. When he came back, he confronted Muthama for opening the padlock. Muthama’s sister intervened and they, and other patrons, later left. The appellant then locked the door and confronted the deceased demanding that he surrenders the pistol that he used to threaten his father. The deceased denied the claim and the appellant assaulted him with kicks and blows. The deceased fell down and the appellant dragged him towards some empty crates. The appellant used empty bottles to smash the head of the deceased. He again dragged him to the middle of the room where the appellant alleged that the deceased had killed his brother. The appellant’s co-accused and Mutinda joined in the attack by stepping on him. PW7 testified that he could do nothing as the door was closed and those present were relatives of the appellant. He stated that the deceased bled from the mouth and nose. Later the appellant opened for them the door and he went home. The following day, he found a huge crowd outside the Club where the deceased was lying. He had been covered with a sheet and he was later taken to Machakos hospital. Cross- examined, he testified that he had chewed some miraa and taken some alcohol before proceeding to ‘Club Digital’ and was slightly drunk. They went to the Club at around 10.00p.m and he added another ‘Kenya Cane’ drink. He maintained that he witnessed the incident in accordance with what he had stated in examination-in-chief. 10.PW8, APC Bismark Kalundo, was attached to Lita Police Station within Kathiani Sub-County. On the fateful night, around 1.00 a.m, he received a call from somebody who claimed that they had been attacked in a bar at Kikunuani. He informed him to see to it that any injuries are attended to by a doctor, and the police would take up the matter later. Before 5.00 a.m, the appellant came to the station and reported an incident. He claimed that the deceased attacked him and wanted to rob him. PW8 referred him to Kathiani Police Station. He, and two other officers visited the bar and found a large crowd who informed them that the alleged attacker was in fact the victim of an assault and he had been rushed to hospital. He subsequently got the report that he succumbed to his injuries. He alerted Kathiani Police Station about this turn of events. The Officer Commanding the Station (OCS) visited the scene and investigations were conducted, which revealed that it was the appellant and his colleagues who attacked the deceased. The appellant was then placed in the cells. PW8 arrested the appellant’s co-accused and the appellant’s drinking partners. He did not know how the other suspects were released and he did not know what became of the appellant’s complaint. 11.PW9, Waithera Githendu, is a consultant pathologist at Machakos Level Five Hospital. She holds a Masters in Human Pathology from the University of Nairobi (2013). She is the one who conducted a post- mortem on the body of the deceased on 20 April 2018 after the body was identified by his relatives. She identified a bloodstained shirt and superficial skin injuries to the neck, head, one leg, buttocks and elbow. The internal examination revealed that the anterior chest wall had bleeding and hematoma in the sternum. He had multiple scalp contusions. She testified that there was internal bleeding in the brain due to increased pressure. She opined that the cause of death was head injury secondary to blunt trauma. She produced the post-mortem report as exhibit No.3. Cross-examined, she stated that the deceased’s liver was not normal due to excessive alcohol consumption. She denied that the injuries could have been due to a fall. In re-examination, she testified that there was multiple external blunt force. 12.PW10, Joel Nzuki Sammy, a resident of Kikunuani village, was at ‘Club Digital’ with other patrons. According to him, the bar belonged to one Muli, while the appellant was the person running the bar. He (PW10) was drinking ‘Legend’, a type of beer. He testified that the appellant stepped out and came back accompanied by two men, one of whom was Muthama, and a lady called Kaluki. They drank and listened to music. A brawl suddenly occurred when the appellant ordered those not buying alcohol to get out of the bar, and there was resistance by those who were sought to be evicted. Those who remained continued taking alcohol including the deceased and the lady. The appellant locked them inside and stepped outside for about thirty minutes. When he returned, he claimed that he wanted to beat somebody. He approached the deceased and poured the beer he was drinking and replaced it with a new type. By then the deceased was very drunk. The appellant asked the deceased why he had threatened his father with a gun and started attacking him by slapping him on the face. He then pulled him towards some empty beer bottles. He picked two empty bottles and used them to hit the deceased. PW10 tried to plead with the appellant to stop attacking the deceased but he did not stop and ordered him to sit down. He went on hitting the deceased on the head with bottles. One Mutinda Ndolo joined in and also attacked the deceased with his bare hands on the face. PW10 attempted to intervene in vain and the other patrons did not help. The beating went on. He stated that the deceased tried to plead for forgiveness which was rejected by the assailants. The appellant’s co- accused joined in and stepped on the deceased’s head. They branded PW10 a traitor and refused to open the door for him but later the appellant opened the door and he went home. The following day, he found a large crowd at the market and he was informed that the deceased was found lying outside the bar and was rushed to hospital. The place was illuminated and he did not have any differences with the accused. Cross-examined, he acknowledged that he was taking beer and that he was drunk, though not to the extent that he could not see what was taking place. He stated that much of the attack was from the appellant while the appellant’s co-accused stepped on the deceased. 13.PW11, PC Simon Warui, based at Kathiani Police Station, was the investigating officer. On the morning of 17 April 2018, he and other colleagues were called by the OCS, CIP Simon Nganga, and directed to proceed to Kikunuani market as it had been alleged that somebody had been assaulted and badly injured. On arrival, they met some AP officers from Lita AP Post and the area Chief. The Chief informed them that the victim had been taken to Machakos for treatment. They proceeded behind the Club, which was the alleged scene of crime, and recovered a white cap and pair of brown open shoes, a few metres from the door of the bar. They could not access the bar as both the front and rear doors were locked. They cut the padlock and entered. They found bloodstains on the floor of the bar. They also found a black jacket, that the villagers said belonged to the deceased, and broken sticks. They established that there had been a struggle, as chairs and tables were in disarray, and there were broken beer bottles. The OCS took photographs of the scene. They interrogated watchmen who recorded statements. He stated that the barman (the appellant) lodged a report that his bar had been invaded by robbers and brought a torn trouser alleging that it had been damaged by the robbers who stormed his bar. He produced the items of clothing collected, together with broken sticks, as exhibits. He testified that a post-mortem was later conducted on the deceased. Cross-examined, he stated that his investigations revealed that the appellant’s complaint (that he had been robbed) was diversionary. He testified that only the deceased was beaten and there was thus no fighting. He did not collect the broken beer bottles. 14.With that evidence, the prosecution closed its case. The trial court found that the appellant and his co-accused had a case to answer and they were put on their defence. The appellant and his co-accused opted to give sworn evidence in defence. 15.In his sworn evidence, the appellant testified that on 16 April 2018, he was operating ‘Club Digital’ and was in charge of the counter. He testified that he opened the Club at around 5.00 p.m and customers started streaming in. By 9.00 p.m, the Club had many customers including the deceased. He stated that the deceased and another person sat at a table and chewed miraa. They ordered ‘Napoleon’ whisky. At around 10.00 p.m, while he was at the counter, the deceased and his friends started creating a fracas which roped in other revellers. He did not intervene at this time. He however saw the deceased lying on the floor after a fight broke out. He closed the counter and tried to intervene in the fight. He ordered all of them to go outside. The revellers obeyed his order while the deceased lay on the floor as he had been overwhelmed by the attack. He stated that there was dim light and the deceased sat about 10 metres from the counter and he was able to see what went on. According to him, the revellers were drunk. He denied assaulting the deceased or any of the combatants. He stated that the broken bottles and glasses were due to the fight among the revellers. He denied that he attacked the deceased for having threatened his father. He had no differences with the witnesses who testified but that they were not happy after he alerted the police of the incident. He testified that he had reported to PC Bismark of Lita Police Post who directed him to place the deceased outside the bar as it was at night. The following day, he went to the police post with his wife and was referred to Kathiani Police Station where he arrived at 7.30am and recorded his statement before being placed in the cells. He had operated the bar for about one month and he knew his co-accused as a regular customer. He however did not see him at that time of the incident. 16.Cross-examined, he acknowledged that he was operating the bar at the time of the incident and the deceased was among the revellers. He could not however tell if his co-accused was at the bar. He stated that revellers often fight in the event of disagreements but denied assaulting the deceased. He denied that he and his co-accused removed the deceased outside the Club. He however acknowledged that it was improper for him to have abandoned the deceased outside the bar as he left for home. He stated that it was PC Bismark who directed him to leave the deceased outside the Club on the basis that the police would come for him. He confirmed that the deceased was seriously injured. He did not wait for the police to come as he had been warned. In re-examination, he testified that he could not escort the deceased as he was worried of being attacked by the deceased’s assailants, and further, that the police had promised to come to the scene. His co-accused did not cross-examine him. 17.On his part, the appellant’s co-accused in his sworn testimony, testified that on 16 April 2018, he was splitting timber and closed work at 6.00 p.m. He passed by his house and later went to ‘Club Digital’ for a drink at around 9.00 p.m. He ordered a drink from the appellant. He stated that the deceased came to the Club in the company of others chewing miraa. They were a group of five revellers who were drunk and they ordered for drinks. He testified that the appellant closed both doors and ordered everyone to clear their bills before being allowed to continue drinking. The appellant volunteered to buy a drink for the deceased and later reminded him of an incident where the deceased had threatened his father. The two disagreed and a quarrel ensued. He testified that the appellant demanded that the deceased shows him the sword which he had used to threaten his father. On encountering the exchange of words, he went out of the bar and left for home. He could not tell what happened after he left. He denied assaulting the deceased. On 19 April 2018, he was summoned by the police who placed him in the cells. Cross- examined by the appellant, he testified that he sold to him a beer named ‘Dallas’ and he had drunk one and a half bottles. He claimed he could drink up to four bottles of this brand of alcohol. Cross-examined by the Prosecution Counsel, he confirmed that he was at ‘Club Digital’ drinking alcohol and the appellant was the one selling at the counter. The deceased found him at the Club. He maintained that the cause of trouble was the exchange of words between the appellant and the deceased and further that he did not intervene but left for his home. According to him, the prosecution witnesses lied because they had earlier disagreed over sand harvesting. 18.DW3, Leonard Mutui Nganga, went to ‘Club Digital’ at 6.00 p.m to watch news. He drank alcohol sold to him by the appellant who was the barman. There were other revellers at the club. He testified that the deceased came with four young men and later started a fracas and he saw the deceased break a glass with a stick. There was a commotion and he decided to leave the bar. He saw the appellant try to intervene and ordering the revellers to clear their bills. He did not know the appellant’s co-accused there before. He remained at the Club up to 10.00 p.m when the proprietor ordered them to leave. Cross-examined, he maintained that he did not see the appellant’s co-accused at the bar. He was not related to the appellant. He could not tell whether the dispute between the appellant and the deceased was the cause of death. 19.In closing submissions at trial, counsel for the accused inter alia submitted that the witnesses were drunk at the time of the alleged crime which raised queries on the validity of their evidence, bearing in mind that the Club was dimly lit and they could not see clearly. He submitted that being drunk would naturally impair visibility and blur judgment, making identification more difficult. He also submitted that the bottles alleged to have been used to hit the deceased were not exhibited, and further, that one would expect the cause of death to be by a sharp object if the deceased was it with bottles on the head. 20.In his judgment, the trial judge found that the post-mortem report had established the cause of death as blunt trauma to the head which led to internal bleeding in the brain. The trial judge held that the evidence of PW4, PW6, PW7, and PW10, was not shaken in cross-examination, and it established the participation of the appellant and his co-accused in the death of the deceased. Regarding the submissions of counsel for the defence on the failure to produce the broken pieces of beer bottles as possible murder weapons, he found that this did not materially affect the prosecution case, as the cause of death was head injury secondary to blunt force trauma. He opined that the prosecution case bolstered by the evidence of the appellant’s co-accused who testified that there was an exchange of words between the appellant and the deceased. He found the charge of murder proved and convicted the appellant and his co- accused. 21.Prior to sentence, the trial court directed the County Probation Officer to file a pre-sentence report which was subsequently filed and Counsel made submissions in mitigation. The trial Court sentenced both the appellant and his co-accused to 25 years imprisonment. 22.The appellant has preferred this appeal, against both conviction and sentence, on the following grounds which were drawn in person:1.The learned trial judge erred in law and fact in concluding that the appellant killed the deceased with malice aforethought.2.The learned trial judge erred in law by using surmise and conjecture as the basis of convicting the appellant for the offence of murder.3.The learned judge erred in law and fact by failing to appreciate that there was no proper identification of the appellant considering the poor lighting at the scene.4.The learned trial judge erred in law and fact in relying on the evidence of witnesses who were intoxicated and unable to make proper judgment.5.In dismissing the defence of the appellant, the Honourable trial Judge erroneously relied on evidence that was never adduced during trial.6.The Honourable Judge erred in law and fact in sentencing the appellant to serve 25 years imprisonment which is excessive under the circumstances. 23.In addition to the above, the appellant relied on a supplementary memorandum of appeal drawn by Prof. Wilson Hassan Nandwa, learned counsel for the appellant, in which it was asserted : that the prosecution failed to prove its case beyond reasonable doubt; that the learned Judge failed to warn himself against relying on the evidence of drunkard (sic) witnesses, and; that the learned Judge failed to find that the element of malice aforethought had not been established by the prosecution. The appellant seeks that the conviction and sentence be set aside. 24.The appeal was urged before us by way of written submissions buttressed by oral highlights at the plenary hearing. 25.In his submissions, Prof. Nandwa, learned counsel, argued that the prosecution failed to establish the element of malice aforethought as defined by Section 206 of the Penal Code contending that the evidence showed that the death of the deceased arose from an assault during a spontaneous altercation in absence of any premeditation, or intent to cause death or grievous harm. He relied on the case of Nzuki v Republic (1993) KLR 171 to support his argument. Conceding that while a drunk witness is not automatically unreliable, counsel submitted that the trial judge failed to warn himself of the danger of convicting on the evidence of a drunk witness without corroboration. He submitted that the possibility of impaired perception, memory lapses, or exaggeration was never addressed, thereby occasioning a miscarriage of justice. On this issue he referred us to the case of Republic vs Oyier (1985) KLR 353. He further submitted that there were glaring inconsistencies in the evidence of the prosecution on the circumstances of the alleged assault, the sequence of events, and the identity of the assailant, which contradictions created doubt that ought to have been resolved in favour of the appellant, citing the case of Ndungu Kimanyi v R (1979) KLR 282. Regarding sentence, it was contended that it was manifestly harsh and excessive in light of the facts and circumstances of the case and that the trial Judge failed to adequately consider the appellant’s mitigating circumstances, including his lack of a prior criminal record, the spontaneous nature of the altercation, and his remorse. He submitted that given that malice aforethought was not established, the proper conviction should have been manslaughter under Section 205 of the Penal Code, adding that the sentence of 25 years for an offence that arose from a sudden fight, absent premeditation, was unduly severe. He ultimately sought that the conviction of murder be quashed and substituted with that of manslaughter, and for an appropriate custodial term proportionate to the circumstances of the case. In his oral highlights, Prof. Nandwa pressed the point that this was a case of manslaughter and not murder. That two persons met in the bar, a quarrel arose, and a fight erupted. He submitted that there was no evidence of malice aforethought. He emphasised that the witnesses could not be treated as credible since they were drunk and the court ought to have warned itself on relying on such kind of testimony. He submitted that given that this was a case of manslaughter, the sentence ought not to have exceeded 10 years. 26.For the State, Ms. Njoki Keng’aara, Principal Prosecution Counsel, submitted that despite the fact that the assault took place at night, it was inside the Club, and there was sufficient light. Further, that the people who witnessed the assault had enough time with the appellant when he had locked them inside the Club, and thus they were able to properly place him at the crime scene and identify him as the person who viciously attacked the deceased. Responding to the submissions of counsel for the appellant that the altercation was spontaneous, and there was absence of premeditation or intent to cause death or grievous harm, counsel referred to Section 206 of the Penal Code on the definition of malice aforethought. She further relied on the case of Bonaya Tutu Ipu & Another vs Republic (2015) eKLR and Kennedy Wesonga Kwoba vs Republic (2013) eKLR. She submitted that the conduct of the appellant was in no way equivalent to manslaughter. On sentence, counsel referred us to the case of Bernard Kimani Gacheru v Republic (2002) eKLR on the principles upon which an appellate court can interfere with sentence. She pointed out that the penalty for murder under Section 204 is death and submitted that the appellant has not demonstrated how the sentence of 25 years is manifestly excessive. She submitted that the assailants went further to dump the deceased outside in the rain, while he was naked and severely injured, and treated him like an animal. At the plenary, Ms. Keng’aara argued inter alia that malice aforethought was proved. She submitted that while attacking the deceased, the appellant brought out the issue that the deceased had threatened his father. Observing the brutality of the assault counsel asked us to consider that the deceased was assaulted all over his body with sticks and bottles and was thrown outside in the rain, naked and bleeding, and this conduct shows that they had malice as no medical attention was sought on behalf of the deceased. 27.We have considered the wholesome submissions of counsel. 28.We have already pointed out the duty of this Court as a first appellate court which is to submit the evidence to a fresh and exhaustive examination and draw its own conclusions, taking into account that it did not have the benefit of seeing or hearing the witnesses. We therefore proceed to give our own analysis of the case. 29.The appellant was of course charged with murder under Section 203 of the Penal Code which provides as follows:203.Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. 30.The prosecution therefore needed to prove the following:i.That a death of a person occurred.ii.That the accused caused the death.iii.That the accused caused the death with malice aforethought through an unlawful act or omission. 31.Section 206 of the Penal Code defines malice aforethought as follows:206.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. 32.In this instance, there is no question that there was a death. The identity of the deceased is not in doubt. The cause of death is also known. It was blunt trauma to the head, which caused internal brain haemorrhage and increased pressure in the head, as noted in the post-mortem report. PW9 produced the post-mortem as an exhibit which report was not disputed. What is disputed is whether the appellant was the author of the assault that caused the injuries and eventual death of the deceased, and if so, whether the assault was with malice aforethought so as to meet the ingredients of murder. 33.Was the appellant the author of the assault? The evidence availed by the prosecution was that the deceased was assaulted by the appellant, his co-accused, and others who were not before court, while at ‘Club Digital.’ The prosecution relied on the direct evidence of witnesses who were said to have been at the scene of the assault and who witnessed the actual assault. This direct evidence of those at the scene was buttressed by the evidence of other witnesses who were involved in subsequent events that were material to the case. Direct evidence of what transpired at the scene was provided by PW4, PW6, PW7, PW10. 34.PW4 testified that they were invited by the appellant to go to the Club as he was celebrating his birthday. He did state that initially the appellant threw out the deceased but later allowed him back. The appellant later confronted the deceased demanding to know why he wanted to kill his father. He elaborated that the appellant pushed the deceased to the floor and he was joined by the appellant’s co-accused. He testified that they kicked the deceased and hit him with sticks. They also stripped the deceased, took his mobile phone and cash. The appellant threw them out of the bar and the appellant and three others remained with the deceased. He described the jacket and cap that the deceased wore. PW-6 was also at the ‘Home Boys’ miraa base when he was invited to the Club. He mentioned an initial minor confrontation after the appellant had padlocked the club but found it open. The appellant then confronted the deceased and demanded that he furnishes the pistol that he had threatened his father with. He was categorial that the appellant slapped the deceased and attacked him with empty bottles hitting him viciously on the head. He testified that the appellant’s co- accused joined him in the attack. They later ordered them out of the Club. He left the deceased lying on the floor. PW-7 similarly, was also initially at the miraa base and was invited to the Club. He also mentioned a confrontation between the appellant and one Muthama over the opened padlock, after which Muthama, his sister, and other patrons left the bar. He testified that the appellant then locked the door and confronted the deceased demanding that he furnishes the pistol he used to threaten his father. The appellant and his co-accused then assaulted the deceased with kicks and blows and they also dragged him towards some empty crates. They used empty beer bottles to hit his head. Later the appellant opened the door and he left for home. PW-10 was already at the Club when the deceased checked in with others. He described a brawl and resistance when the appellant ordered those not buying alcohol to get out of the bar. He was among those who remained. He described how the appellant went out briefly after locking the door, but came back, and claimed that he wanted to beat somebody. He also stated that the appellant demanded to know why the deceased had threatened his father with a gun after which he slapped him, pulled him towards some empty beer bottled, picked some two bottles and hit him on the head. The appellant’s co-accused joined in and stepped on his head. 35.We do not find any material inconsistencies in the evidence of the above witnesses. Their accounts may differ in minor detail, which is not unusual, as the perceptions of different individuals, despite being of similar circumstances, may differ. What is critical is that all the witnesses are firm that the appellant picked a quarrel with the deceased, questioning him why he wanted to kill his (appellant’s) father and demanding that he produces the weapon that he had used to threaten his father. They are also all on fours that after this initial questioning, the appellant attacked the deceased and viciously hit him on the head with empty bottles. They all agree that the appellant’s co-accused joined in assaulting the deceased. They all left the bar leaving the deceased lying on the floor after being beaten. When they left, the appellant was with the deceased in the bar. 36.The appellant, before the trial court and even before this court, has attempted to discredit the evidence of the above witnesses by claiming that they were drunk. Prof. Nandwa in his submissions referred us to the case of R v Oyier (1985) KLR 353 which we have looked at. A perusal of that case discloses that the appellant therein was charged and convicted of rape and assault causing actual bodily harm. His first appeal before the High Court was allowed and the State appealed to the Court of Appeal. The key evidence provided was that of the complainant, who described the rape, and the respondent admitted to sex but claimed that it was consensual. Nothing arose in that case concerning production of evidence of a drunk witness, and we have not found any issue in the case that touched on assessment of evidence of a drunk witness. The authority is therefore irrelevant on the question of analysis of the evidence of a drunk witness. 37.In this case, all the witnesses readily admitted that they were drunk.There is however no evidence that they were not lucid and could not comprehend the events that happened. It cannot be alleged that all the four eye witnesses were having similar hallucinations induced by drunkenness to give more or less a similar account of events. Despite being drunk, the evidence of the witnesses was coherent and consistent. This was not a case of a single drunk witness being the only witness and whose evidence is in doubt. The evidence of the four eyewitnesses corroborated each other. The appellant was a person well known to them as they were from the same village. They had been at the scene for a considerable amount of time. The scene was sufficiently lit. Despite being drunk, there is nothing presented that would cast doubt in our minds, that they were not aware of what was taking place. The evidence is overwhelming, and we are persuaded beyond reasonable doubt, that the appellant was directly involved in the assault that led to the deceased being injured and his subsequent death. 38.Counsel for the appellant submitted that this attack was a spontaneous fight between two persons in a bar and there was no malice aforethought. He referred us to the case of Ndungu Kimanyi v R (1979) KLR 282 which we have looked at. Yet again, we find no relevance, as the issue in that case concerned admissions of a confessionary statement made by the appellant in the sole presence of the complainant, and which was deemed not sufficient to lead to the conviction of the appellant. With respect, we are at a loss as to why the said authority was being cited before us by Prof. Nandwa. 39.That aside, we are not persuaded by the argument that this was a spontaneous fight lacking malice aforethought. It will be recalled that the appellant questioned the deceased on why he intended to kill his father and demanded the deceased to produce an alleged weapon that the appellant claimed he used to threaten his father with. It is apparent that the appellant had a grudge with the deceased, whether real or imagined, and he wanted to settle scores. He opted to settle scores by severely assaulting the deceased. It will be recalled that Section 206 defines malice aforethought. We have already outlined the ingredients of malice aforethought above. There is malice aforethought inter alia where there is intention to cause death or intention to do grievous harm, or knowledge that the act or omission, will probably cause death or grievous harm. At the very least, the appellant intended to do grievous harm to the deceased, if not outrightly to cause his death. It is readily apparent that the act of hitting a person on the head repeatedly with a bottle, and/or beating with sticks and blows, is an act that can cause grievous harm. It is very clear that the appellant intended to severely injure the deceased through the sustained assault. 40.In any event, in his sworn evidence, the appellant never presented a defence that he did not intend to cause grievous harm or death to the deceased. His defence was that he was never at all involved in the assault and that the deceased was a victim of an assault by other revellers. It is apparent to us that his defence was an afterthought, which the learned trial Judge properly disregarded. The defence he presented in his sworn testimony, that he was in no way involved in the assault, does not tally with the submissions presented, that the appellant committed the assault, but this was spontaneous without any intention to cause injury to the deceased. The intention to cause grievous harm to the deceased is also manifested in the aftermath. The appellant had already caused the deceased to be stripped while at the Club. He knew that the deceased was severely injured. He did not take any step to have the deceased rushed to hospital for treatment. Instead, he threw out the deceased, naked, in the rain, and literally left him for dead. This is not the ordinary behaviour of a person who wishes to mitigate an unintended action that has led to injury. We have no doubt that the ingredients of malice aforethought were met and therefore the appellant was properly convicted of murder. His conviction was not a result of surmise or conjecture as claimed by the appellant but was based on solid evidence that went beyond reasonable doubt. We are therefore not persuaded to set aside the conviction of the appellant. 41.On sentence, Section 204 of the Penal Code prescribes the sentence for murder. It pronounces that: ‘Any person convicted of murder shall be sentenced to death.’ The law as drawn only prescribes one sentence, that is the sentence of death. However, the Supreme Court in the case of Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2017] KESC 2 (KLR) (14 December 2017) (Judgment) elaborated that S. 204 needs to be interpreted in a manner that the sentence of death is not the only sentence on a conviction of murder. The trial court was alive to the Supreme Court’s decision and that is why the learned Judge sentenced the appellant to 25 years imprisonment. 42.It has been urged that this sentence is excessive. We are not persuaded.The record shows that the trial Judge took into account the mitigation of the appellant, and a probation officer’s report, before sentencing the appellant and his co-accused. We are unable to fault the trial judge. As the evidence demonstrated, the deceased was mercilessly beaten. Those who attempted to stop the assault were held off and later thrown out of the Club. In his severely injured state, the deceased was thrown out in the rain, naked. The appellant had absolutely no mercy on the deceased. In those circumstances we do not find the sentence of 25 years imprisonment to be excessive at all. It was a lawful sentence that took into account all circumstances of the case. 43.It will be seen from the foregoing that we do not find any merit in this appeal and it is hereby dismissed. The conviction and sentence of the trial court are hereby affirmed. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026F. TUIYOTT...................................JUDGE OF APPEALNDUMA NDERI...................................JUDGE OF APPEALMUNYAO SILA...................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR