https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11585

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MIGORI** **HCCRA NO. E048 OF 2025** **JOSEPHAT MANYARA MIGIRO........................APPELLANT** **-VERSUS -** **REPUBLIC....................................................RESPONDENT** ***(Being an Appeal from the Judgment of Hon. M.O. Obiero, SPM at Kehancha Law Courts Cr. No. 457 of 2020)*** **JUDGMENT** 1. JOSEPHAT MANYARA MIGIRO, the Appellant herein, was charged with the offence of manslaughter contrary to **section 205 of the Penal Code**. The particulars of the offence were that on the night of 15th and 16th May, 2020 at Nyabigae Village in Isebania area in Kuria West Sub County within Migori County, by unlawful act caused the death of Rispher Robi Marwa Kuti. 2. The Appellant denied the charge and the prosecution called 5 witnesses to establish their case against the Appellant. The Appellant gave sworn testimony denying the offence and did not call any witnesses. He claimed that he was away in Kisii on the night of 15th and 16th May, 2020 and he was later informed that his wife had been killed. 3. Martha Gati (PW1) testified that the Appellant and the deceased were her neighbors and they were married with one child. She stated that Appellant was residing in a house belonging to her neighbor, Kerata. She stated that the Appellant used to leave in the morning for casual jobs and return in the evening. 4. It is in her testimony that sometime in May 2020, she saw the Appellant carrying a *jembe* and getting into the house. Immediately thereafter, the deceased began screaming for help. She stated that together with Nelson Mwangi, a pastor, Muriaga and Peter Mwita, they went to the Appellant's house to intervene. She stated that the Appellant complained that the deceased had sold his maize and used his phone to call another man to take her away. The deceased, on her part, stated that the Appellant had been threatening to kill her and had refused to allow her to leave. She indicated that she left the men discussing the matter and was later informed by the pastor that the dispute had been resolved. 5. PW1 further testified that on 14th May 2020, she saw the Appellant cooking while the deceased was tending to the child. She stated that on 15th May 2020, she did not see the Appellant nor the deceased but she heard the child crying intermittently throughout the day. 6. On the morning of 16th May 2020, the child cried continuously from about 6.00 a.m. until noon. She stated that she got concerned and contacted the pastor’s wife, who suggested that they check on the child. They proceeded to the house, knocked on the door but received no response. They pushed the door open and found the child inside the house. They also discovered the deceased lying lifeless with her neck completely severed. She stated that she immediately informed the owner of the house and the Assistant Chief, who in turn alerted the police who later collected the body. 7. PW1 testified that the last time she saw the Appellant was on 14th May 2020 and he could not be located thereafter. According to her, the deceased lived with the Appellant in the house. She identified the Appellant in court. 8. On cross-examination, PW1 reiterated that on 14th May 2020 she saw the Appellant cooking and later eating together with the deceased outside the house. She maintained that she only testified to what she personally observed and emphasized that she did not witness the killing. She stated that it was the persistent cries of the child that prompted them to check on the occupants of the house. 1. PW2, Kerata Chacha Babere, testified that sometime in March 2020, he was introduced to the Appellant as he was looking for someone to weed his maize. After engaging him, he learnt that the Appellant lacked accommodation and allowed him to stay in a house he had constructed on his plot. He stated that the Appellant performed various jobs for him and was paid accordingly, although at times he failed to report for work. He testified that he saw the deceased only twice. 2. PW2 further testified that on 16th May 2020, while at work, he received information that the Appellant had injured a woman he was living with. He proceeded to the scene but was not permitted to get into the house until police officers arrived. He identified the Appellant in court as the same person he had given accommodation. 3. He stated that the Appellant was not present at the scene when he arrived. PW2 further testified that he had never had any differences with the Appellant, that no rent had been paid for the house, and that the Appellant did not inform him when he vacated the premises. 4. On cross-examination, PW2 confirmed that he had entrusted the key to the house to PW1, who handed it over to the Appellant. He maintained that although he did not live with the Appellant, he knew that both the Appellant and the deceased were living together in his house. 5. PW3, Dr. Marce Oduor Otieno, testified that he was a medical doctor attached to St. Akidiva Hospital and he conducted a post-mortem examination on the body of Lisper Robi Marwa on 21st May 2020 at St. Akidiva Hospital Mortuary, Mabera. He testified that the deceased was a 28-year-old African female whose body was well preserved and embalmed. 6. It is in his statement that he observed lacerations and deep cuts on the deceased’s head and neck. One deep cut on the left side of the neck measured approximately 8 x 6 x 4 centimeters which had severed major blood vessels, including the external jugular vein and internal carotid artery. He stated that another cut extended from the mandibular to the maxillary region and the trachea had been slit and contained blood clots. The left jugular vein had been severed but other body systems appeared normal. 1. He concluded that the cause of death was excessive bleeding resulting from severed blood vessels and trachea secondary to injuries inflicted by a sharp object. He stated that the body was identified by Enock Marwa and John Ginabai in the presence of a police officer. He produced the Post-Mortem Report as an Exhibit. 2. On cross-examination, PW3 stated that his role was limited to determining the cause of death and that identification of the person responsible was a matter for police investigations. 3. PW4, John Marwa Ginabai, testified that the deceased was the daughter of his brother, Enock Marwa Matiko. He testified that after receiving information concerning the deceased’s death, he travelled to Isebania and was informed that the body had been taken to Akidiva Mortuary. Two days later, he attended the post-mortem examination together with his brother, a police officer and the doctor. He observed injuries on the deceased’s body and identified the body during the post-mortem process. He further stated that he later saw the Appellant at the DCIO’s office and identified him as the person who had been living with the deceased. 4. On cross-examination, he maintained that he was testifying regarding his role in the identification of the deceased’s body. He asserted that the Appellant had been living with the deceased and after her death, he disappeared and was later arrested in Kisii. 5. PW5, No. 65490 Corporal Geoffrey Macharia of DCI Isebania, testified that he was the investigating officer in the case. He stated that on 16th May 2020, he received information from the OCS Isebania concerning a homicide at Nyabikaye Village. He proceeded to the scene together with the OCS. He testified that they found the body of a middle-aged woman lying on a mattress in the inner room of the two-room house. The deceased was lying on her back with a deep wound across her throat and next to the body was a blood-stained knife with a blue handle. 6. He further testified that following the post-mortem examination conducted on 21st May 2020, blood samples were collected from the deceased. The samples were sent to the Government Chemist in Kisumu for analysis. He received the Government Analyst’s report dated 14th July 2021, which concluded that the blood stains on the knife were human blood and matched the DNA profile generated from the blood sample of the deceased. 7. Based on the investigations and forensic findings, PW5 concluded that the recovered knife had been used in the commission of the offence. He produced the knife, the Post-Mortem Report, the Exhibit Memo Form and the Government Analyst’s Report as Exhibits. He further testified that during investigations, he sought the assistance of the Appellant’s father, who assisted the police in tracing and the subsequent arrest the Appellant in Kisii. 8. On that account, the trial magistrate found the Appellant guilty of the offence as charged, convicted him and sentenced him to serve 30 years imprisonment. 9. Being aggrieved by the verdict, the Appellant lodged the instant appeal and set out the following Grounds of Appeal: 10. ***That he did not plead guilty to the charges.*** 11. ***The trial court magistrate erred in law and fact by failing to note that the charges were not proved to the required standard and the sentence of 30 years meted against him is questionable.*** 12. ***The trial court magistrate erred in law and fact by failing to consider his defence which was capable of overturning the prosecution evidence.*** 13. The Appellant filed his undated submissions while the Respondent filed its submissions dated 23rd December, 2025. The Judgment herein is based on the said written submissions which both parties relied upon in their entirety. 14. The Appellant elected to submit and proceed solely on the ground relating to sentence. He expressed remorse for his actions, and stated that he regretted committing the offence. He submitted that he had undergone numerous rehabilitation programmes while in custody and urged the court to take into account his mitigating circumstances and grant him a lenient sentence. 15. On the applicable legal principles, the Appellant submitted that although sentencing is a matter within the discretion of the trial court, an appellate court may interfere where a sentence is manifestly excessive, based on wrong principles, or where material mitigating factors were overlooked. In support of this proposition, the Appellant relied on ***Kahindi v Republic*** *(citation not given).* 16. The Appellant further relied on ***Rotich v Republic*** *(citation not given)* and submitted that where a conviction results from a plea agreement to a lesser offence, the sentence imposed ought to distinguish the lesser offence from murder. 17. The Appellant acknowledged that Section 205 of the Penal Code prescribes life imprisonment for manslaughter but argued that life imprisonment has often been treated as the maximum sentence reserved for the most serious offences. He submitted that the sentence imposed was harsh and excessive in the circumstances. 18. He further submitted that that he was a first offender, had expressed genuine remorse, and had compelling personal circumstances. He relied on ***Mwangi (E002 of 2020)*** where the Court imposed 18 months’ imprisonment for manslaughter based on mitigating factors. He also relied on ***Republic v Mwebi***, where the court imposed a 5-year sentence for manslaughter based on the circumstances highlighted in that decisions. 19. The Appellant further submitted that pre-sentence reports, rehabilitation prospects, community ties, age, remorse and probation recommendations are relevant considerations in sentencing. He placed reliance on ***State v Karanja* *at Kiambu****. (Citation not given).* 20. The Appellant informed the court that he had already spent more than five years in custody and urged the court to consider proportionality and parity in sentencing. In that regard, he relied on ***Republic vs Kipkemoi Lawrence Bongei HCCR Case No. 6 of 2020 [2025 KEHC 17476] (KLR)***; and ***Republic vs Ngeno and another [Criminal Case No. E054 of 2021] [2025] KEHC 18189 (KLR).*** 21. He urged the court to consider his remorse, first offender status, strong family and community ties, favourable rehabilitation prospects, and the period already spent in custody. He prayed that the sentence of thirty years’ imprisonment be reduced to an appropriate term and that he be granted credit for the time already served in custody. 22. On the other hand, the Respondent submitted that the prosecution proved its case beyond reasonable doubt, the Appellant was properly convicted and the sentence of 30 years was proper in the circumstances. 23. On whether the prosecution discharged its burden of proof to the required standard, the Respondent submitted that the ingredients of the offence of manslaughter are provided for under Sections 202 and 205 of the Penal Code and cited the case ***Palmer v Republic [1971] AC & 814*** *and* ***Mungai v Republic [1984] eKLR 85*** on the ingredients of the offence manslaughter. 24. On proof of death, the Respondent submitted that the post-mortem evidence of PW3 established that the deceased sustained lacerations on the head, multiple cuts on the neck, deep cuts which severed the external jugular vein and internal carotid artery, and a cut through the trachea. It was submitted that the doctor concluded that the cause of death was multiple systemic injuries, excessive bleeding and suffocation due to assault by a sharp object. The Respondent therefore submitted that the death of the deceased was proved to the required standard. 25. On whether the Appellant committed the unlawful act that caused the death of the deceased, the Respondent submitted that although no witness directly witnessed the killing, the case was founded on circumstantial evidence. Reliance was placed on ***Kipkering Arap Koskei and another vs R. [1949] 16 EACA 135 and Sawe v Republic [2003] eKLR***, and the Respondent wherein the principles governing circumstantial evidence were enumerated. 26. The Respondent submitted that PW1 testified that the Appellant and the deceased lived together as husband and wife. PW1 further testified that she had previously witnessed the Appellant assaulting the deceased after accusing her of communicating with another man using his phone. The deceased informed those present that the Appellant had threatened to kill her. The Respondent submitted that on 15th May 2020 neither the Appellant nor the deceased was seen and on the following day the deceased was found dead inside the house with her neck cut. It was further submitted that the Appellant, who had been living with the deceased and the child, was nowhere to be seen and was subsequently arrested in Kisii. 27. The Respondent argued that the prosecution evidence established that the deceased died from injuries inflicted by a sharp object and that the evidence adduced by the prosecution, which was not controverted, pointed to the Appellant as the person responsible for the death of the deceased. 28. On the issue of malice aforethought, the Respondent submitted that manslaughter does not require proof of malice aforethought. Counsel referred to the evidence of PW1 regarding the disagreements between the Appellant and the deceased, the accusations levelled by the Appellant against the deceased, and the threats allegedly made against her. It was submitted that the relationship between the two had been turbulent for some time and that the chain of events leading to the death of the deceased pointed towards the Appellant as the person who inflicted the fatal injuries. The Respondent strongly submitted that the offence of manslaughter was proved beyond reasonable doubt. 29. On whether the sentence of 30 years’ imprisonment was proper, the Respondent submitted that Section 205 of the Penal Code prescribes life imprisonment for the offence of manslaughter. It was argued that the trial court considered the Appellant’s age, which was 24 years at the time, the nature of the injuries sustained by the deceased, the conduct of the Appellant, and the circumstances surrounding the killing before imposing the sentence. 30. The Respondent further pointed out that the observations made by the trial court indicated that the circumstances of this case could have supported a charge of murder. It was therefore argued that the sentence of thirty years’ imprisonment was reasonable and that there was no basis for interference by the appellate court. 31. On the defence of *alibi*, the Respondent submitted that the Appellant gave a sworn defence and denied killing the deceased. He stated that he had travelled to Kisii on the material date. The Respondent relied on ***Erick Otieno Meda v Republic [2019] eKLR*** on the principles governing defence of an alibi. The court in that case stated that: 32. *An alibi needs to be corroborated by the other witnesses, and not just a mere regurgitation of the events from the accused’s point of view;* 33. *The alibi defence or evidence needs to be introduced at an early stage so as to allow it to be tested, especially during cross-examination of the trial;* 34. *The alibi defence or evidence may often rest on the credibility of the accused and the reliability of the evidence that he or she has presented in court;* 35. *The accused does not need to prove the alibi, but the prosecution must have presented its case that the accused is guilty beyond reasonable doubt so as to allow the alibi to fail.* 36. The Respondent further submitted that the trial court considered the *alibi* defence and found it to be an afterthought as the Appellant could not state with certainty when he travelled to Kisii. The prosecution evidence displaced the defence of *alibi* and therefore properly rejected by the trial court. 37. The Respondent maintained that the sentence imposed by the trial court was sufficient and appropriate in light of the circumstances of the case. The Respondent urged the court to find that the prosecution had proved its case beyond reasonable doubt and that the sentence meted out against the Appellant was proper and should be upheld. 38. **This court has carefully considered the Petition of appeal, and grounds of appeal, Appellant’s written submissions as well as those of the Respondent, the proceedings before the trial court and the judgment as well as the evidence on record.** 39. Since the Appellant abandoned his earlier grounds of appeal, the only issue left for this court to determine ***is whether or not the sentence was excessive.*** 40. It is trite law of practice that sentence is a matter that rests in the discretion of the trial court. In the case of ***Bernard Kimani Gacheru vs. Republic [2002] eKLR*** the Court stated that: ***"It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist."*** 1. I also appreciate the **Sentencing Policy Guidelines** which require the court in sentencing an offender to take into account both aggravating and mitigating factors and that the aggravating factors include **use of a weapon to frighten or injure the victim, use of violence, the number of victims involved in the offence, the physical and psychological effect of the offence on the victim, whether the offence was committed by an individual or a gang, and the previous convictions of the offender.** **That among the mitigating factors are provocation, offer of restitution, the age of the offender, the level of harm or damage inflicted, the role played by the offender in the commission of the offence and whether the offender is remorseful.** 2. Additionally, an appellate court can only interfere with the sentence meted out by the trial court upon satisfaction of some circumstances as illustrated in the case of ***Nilsson vs. Republic [1970] E.A. 599,601***as follows: ***“The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the Appellant, they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in James v Rex (1950), 18 EACA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor. To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. R v Shershewsity (1912) C.CA 28 T.LR 364.*** 1. It is clear that the sentence provided for by **Section 205 of the Penal Code** for the offence of manslaughter is imprisonment for life. The trial court considered the Appellant’s mitigation before sentencing him. No doubt sentencing is in the discretion of the trial court. It was not demonstrated that the trial court abused or wrongly exercised its discretion. 1. Having considered the evidence presented before the trial court in its entirety, and the mitigating factors, I find case distinguishable from the authorities relied on by the Appellant. The 30-year sentence meted by the trial court is within the legal parameters and I find the sentence lenient in the circumstances of the offence, considering the circumstances of this case and the grievous injuries suffered by the deceased. I decline to disturb the sentence as I find it appropriate. 1. Accordingly, the appeal fails and is hereby dismissed. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 23RD DAY OF JULY, 2026** **………………………** **W.N. MOLONKO** **JUDGE** ***Judgment delivered in the presence of:*** *Josphat Manyara Migiro - Appellant* *Respondent - Absent* *Susan Nzioka – Court Assistant*