https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1407

Nyabando v Republic (Criminal Appeal E272 of 2022) [2026] KECA 1407 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1407 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E272 of 2022 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 10, 2026 Between Josephat Omanga Nyabando Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Kisii (R. Ougo, J.) dated and delivered on 9th June 2022 in HCCRC No. 30 of 2019) Judgment 1.This appeal arises from the judgment of the High Court of Kenya at Kisii (Ougo, J.) (the trial court) in Criminal Case No. 30 of 2019. The appellant, Josephat Omanga Nyabando, was arraigned on the information charging him with murder contrary to section 203 as read with section 204 of the Penal Code, particulars being that on the night of 6th August 2019 at Bong'onta Market, Sosera Sub-Location, in Masaba South Sub- County, within Kisii County, he murdered Joseph Mirunda alias Kamamba (the deceased). The appellant denied the information triggering a full trial. 2.The prosecution's case was that on the material night, PW1, George Barongo Arumba, saw the appellant chasing the deceased, got hold of him and cut him on the middle of the head and then ran away. PW1 rushed to where the deceased was, tried to talk to him but the deceased did not respond. The deceased's brother David Gisiora Mirondi, (PW3) shortly arrived at the scene and rushed the deceased to hospital. 3.The Area Assistant Chief, Sylvester Ontita Mogaka, (PW2) received information from a resident regarding the deceased’s attack and together with Zachary Nyaboga Tubone (PW4), the assistant chief of the neighbouring Bongota Sub-Location, they went to Kerongo Police Post picked police officers and went to the appellant’s home. They found the house locked with a padlock from outside, police officers broke the padlock and they entered the house and found the appellant in bed. They arrested him and recovered a panga besides the bed. 4.PW3, David Gisiora Mirondi, received information about the attack and rushed to the scene where he found the deceased on ground bleeding. He looked for means and rushed the deceased to hospital but the deceased was pronounced dead upon arrival. The testimony of PW4, Zackary Nyabone Tubuge was similar to that of PW2. 5.PW5, Police Constable Harun Kiptanui based at Korongo Police Station was at the station when PW2 and PW4 went to the station and reported the murder. He proceeded to the appellant’s home together with two other police officers, PW2 and PW4, found the appellant sleeping, arrested him and recovered a panga. Later, on 7th August 2019, he accompanied police Officers to the scene and later to the appellant’s house and recovered a white T-shirt, while the testimony of PW6, Kennedy Mose, was similar to that of PW3. 6.Dr. Morebu Peter Momanyi, (PW7) conducted and produced the post mortem report. According PW7, the deceased had a deep linear cut wound approximately 18 centimeters on the frontal region of the head with a skull fracture and exposure of the brain tissue. He opined that the cause of death was severe head injuries caused by sharp force trauma, consistent with injuries inflicted by a sharp object. 7.Dalmas Kibet Kisang, (PW8) a government analyst received blood sample from the deceased together with a white-and black polo T-shirt and multi-coloured checked brown trousers with blood stains. Analysis of the items established that the blood stains on the cloths matched the DNA profile of the deceased. 8.PW9, Chief Inspector of police Caleb Mutonyi, who investigated the case received information regarding the deceased's death and proceeded to the hospital where he saw the deceased’s body which had a deep cut wound on the head. He then went to the scene of crime; a t-shirt and a pair of multi-coloured checked brown trousers slightly stained with blood which the appellant was wearing at the time of arrest were recovered and sent for forensic analysis. He recorded statements from witnesses and charged the appellant with murder. 9.Put on his defence, the appellant gave a sworn testimony stating that on the material day, he went to drink chang'aa, later went to Mosaiga Bar for more drinks before returning home at about 8pm to sleep. At about 11.30 p.m., several people broke into his house and arrested him. He was dressed in a black T-shirt and checked trousers. PW5 recovered a metal bar from his house but it had no blood stains. He denied committing the offence maintaining that he was at home at the time the offence occurred. 10.After considering the evidence of both the prosecution and the appellant, the trial court held that the prosecution had proved the case against the appellant beyond reasonable doubt, convicted him for the offence of murder and sentenced him to thirty (30) years’ imprisonment. 11.Dissatisfied, the appellant filed this appeal against both the conviction and sentence, contending that the trial court erred in convicting him despite the prosecution not proving the case against him beyond reasonable doubt and that the trial court relied on the unreliable testimony of PW1 and inadmissible forensic evidence. 12.At plenary hearing, Mr. Magara, learned counsel, appeared for the appellant while Mr. Okeyo, learned counsel, was present for the respondent. The appellant appeared through Video Link. Mr. Okeyo informed us that he was conceding the appeal against murder and in lieu thereof, accept a conviction for the lesser offence of manslaughter because, in his view, malice aforethought was not proved. Mr. Magara did not object. Both counsel therefore addressed us on sentence only. 13.Mr. Magara submitted that the sentence of 30 years was excessive; unfair and in view of the concession to the appeal by Mr. Okeyo, the Court should impose a lesser sentence while taking into account the period the appellant spent in remand during trial. On his part, Mr. Okeyo argued that although the offence of manslaughter attracts a maximum of sentence of life imprisonment, he left the issue to the discretion of the Court. 14.We have carefully considered respective arguments by counsel for the parties on sentence and weighed the evidence on the brutality inflicted on the deceased against the mitigation in the circumstances of this case. Although the deceased lost his life in a violent manner, the evidence of PW1 who was the only eye witness, did not show that the appellant had planned to kill the deceased or anything to suggest that the appellant’s action was premeditated thus, pointing to a lesser offence of manslaughter rather than murder. 15.The appellants gave mitigation through his counsel that he is married with children; he is the sole breadwinner and he is a first offender. 16.Considering the circumstances under which the offence was committed, the mitigating factors that the appellant is a first offender; proportionality and the object of sentencing, including rehabilitation and deterrence and in the absence of malice aforethought, we set aside the sentence of thirty (30) years and substitute it with a sentence of twelve (12) years imprisonment. 17.Consequently, we allow the appeal on conviction and sentence for the offence of murder and substitute it with a conviction for the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. The appellant shall serve a sentence of twelve (12) years imprisonment shall run from 13th August 2019 when the appellant first appeared in court. DATED AND DELIVERED AT KISUMU THIS 10TH DAY OF JULY, 2026ASIKE-MAKHANDIA........................................JUDGE OF APPEALE C. MWITA........................................JUDGE OF APPEALB. ONGAYA........................................JUDGE OF APPEALI certify that this is a true copy of original.Deputy Registrar