Kieusi & another v Republic (Criminal Appeal E090 of 2022) [2026] KECA 1148 (KLR) (12 June 2026) (Judgment)

Kieusi & another v Republic (Criminal Appeal E090 of 2022) [2026] KECA 1148 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1148 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E090 of 2022 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA June 12, 2026 Between Marwa Magige Kieusi 1st Appellant Makonge Wangwi Marwa alias Makonge Wanwi Maseli 2nd Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Migori (R. Wendoh, J.) dated 24th February 2022 in HCCRC No. 6 of 2020 Criminal Case 6 of 2020 ) Judgment 1.This is a first appeal from the judgment of the High Court of Kenya at Migori (Wendoh, J.) dated 24th February 2022. Marwa Magige Kieusi and Makonge Wangwi Marwa alias Makonge Wangwi Maseli, the appellants, were charged before the trial court with murder contrary to section 203 as read with section 204 of the Penal Code, particulars being that between the night of 5th and 6th June 2020 at Karosi village in Bukira East Location, Kuria West Sub-County within Migori County, they murdered Thomas Moronga Makuri, hereinafter referred to as the deceased. The appellants pleaded not guilty and, after a trial in which the prosecution called 8 witnesses and the appellants’ sworn defence, they were found guilty, convicted and sentenced to serve 35 years’ imprisonment each. 2.The appellants were aggrieved with both conviction and sentence and filed this appeal raising 3 grounds disputing the findings of the trial court, first; that the circumstantial evidence adduced before the trial court was insufficient to support their conviction; second, that the trial court erred in rejecting their defence of alibi and third, that the trial court erred in failing to take into account the period they spent in custody. They urged this Court to allow the appeal, quash the conviction and set aside the sentence. 3.When this appeal came up for plenary hearing on 27th April 2026, learned counsel Ms. Anyango appeared for the appellant, while Ms. Onyango, learned prosecution counsel, held brief for Ms. Ikol for the respondent. The appellants appeared from Naivasha Maximum Prison through video-link. Learned counsel for the appellants relied on her written submissions dated 15th April 2026, while Ms. Onyango informed us that Ms. Ikol would also rely on her written submissions dated 22nd April, 2026. 4.Ms. Onyango briefly highlighted her written submissions, arguing that the circumstantial evidence which formed the basis of the appellants’ conviction did not meet the requisite threshold. Learned counsel relied on the decision of this Court in Abanga alias Onyango v Republic. (Criminal Appeal No. 32 of 1990) for the proposition that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established and the circumstances should be of a definite tendency unerringly pointing towards guilt of the accused. 5.It was Ms. Anyango’s submission, that none of the prosecution witnesses saw the appellants commit the offence, or testified with complete certainty that the appellants used to reside in the servant quarters within the deceased’s compound, the bloodstained cloth recovered from the servant quarters did not connect the appellants with the offence and the DNA profile generated from blood stains found at the scene belonged to an unknown person and not the appellants. 6.On the second ground of appeal, Ms. Anyango submitted that the appellants’ defence of alibi that they were away in Tanzania at the time the offence was committed was not disapproved and relied on the decisions in Victor Mwendwa Mulinge v R [2014] eKLR and Uganda v Sebyala & Others [1969] EA 204 for the proposition that the burden of proving the falsity of an accused's defence of alibi is on the prosecution and the prosecution did not discharge this burden. 7.Lastly, Ms. Anyango submitted that the trial court failed to consider the period the appellants had spent in custody when meting out the sentence as required by section 333(2) of the Criminal Procedure Code, even though the appellants were arrested on 16th June 2020 and 6th August 2020, respectively, and were in custody throughout the trial. 8.On the respondent’s part, Ms. Ikol, learned Senior Assistant Prosecution Counsel, argued through her written submissions that the identity of the appellants as the perpetrators of the offence was proved, there was evidence that the appellants lived within the deceased’s compound and the only people with access to the compound other than the deceased, keys to the deceased’s house were found in the servant quarters where they lived and in the absence of evidence of forced entry into the deceased’s compound, the circumstantial evidence formed a complete chain sufficient to prove the appellants’ involvement in the murder and irresistibly pointed to their guilt to the exclusion of any other hypothesis. Ms. Ikol relied on Sawe v Republic [2003] KLR 364 and Onyiego v Republic [2025] KECA 337 (KLR) in support of these submissions. 9.On malice aforethought, counsel asserted that the injuries inflicted on the deceased showed that the appellants intended to kill him thus, malice aforethought was proved beyond reasonable doubt. 10.With regard to sentence, Ms. Ikol submitted that the sentence of 35 years was lenient, but conceded that the trial court should have considered the period the appellants spent in remand during trial. 11.This being a first appeal, it is the duty of this Court, as the first appellate Court, to remember that the parties before the court are entitled, as well as demand, a decision of the Court of first appeal, and of drawing its own inferences and conclusions, bearing in mind, however, that it did not see the witnesses testify and give due allowance for that. (See Gabriel Kamau Njoroge v Republic [1987] eKLR). 12.The prosecution called 8 witnesses in a bid to prove its case before the trial court. Samwela Makuri (PW2), the deceased’s wife, spoke to the deceased on the evening of 5th June 2020 from Nairobi and agreed to talk again at 10.00 pm but the deceased did not answer her calls thereafter. The following morning on 6th June 2020, PW2 reached out to Dennis Mayeka Mogaka (PW1), a family friend, and requested him to check on the deceased since she could not reach him on phone. PW2 went to the deceased’s home but found the gate locked from the inside and the knock at the gate went unanswered. 13.PW1 went to the deceased’s mines and found the deceased’s workers, Ayub Magubo, PW3 and Musa Wambura, PW6. The three went back to the deceased’s house and with permission from PW2, they broke into the compound. The main house was locked with padlocks but the servant quarters was open. The appellants, who were employees of the deceased as security guards, were nowhere to be seen. PW1, PW3 and PW6 noticed blood stains at the door to the main house and a trail of more blood towards a water tank. They reported the matter at Kehancha Police Station, where they were given police officers to accompany them to the scene. Police officers found a bunch of keys in the servant quarters, opened the main house and found blood on the floor, the deceased’s mobile phone had been crashed and items in the kitchen scattered. The deceased’s body was found in the water tank and retrieved. It had injuries on the head and back. According to PW1, the deceased had introduced the appellants to him as his workers about a month earlier. 14.PW2, who had last spoken with PW1 and authorized him to break into the compound to check on the deceased, was informed that the deceased’s body had been found and retrieved from a water tank. She travelled home on 7th October 2020 and found blood stains on the walls and on the floor, household items were scattered in the house, and the appellants were not at home. PW2 later identified the deceased’s body in the mortuary for purposes of post-mortem. 15.Ayub Magubo (PW3), the person who brought the appellants from Tarime District in Tanzania on 10th May 2020 to work for the deceased following the deceased’s request, testified that the appellants were the only workers in the deceased’s compound apart from the deceased, access to the compound was through the gate and only with the deceased’s permission. He last saw the appellants on 4th June 2020. His account of the events was similar to that of PW1. 16.Dr. David Keboye (PW4) conducted postmortem on the deceased’s body on 10th June 2020. The deceased sustained 5 deep cut wounds on the head and the back. There was a very big wound on the head about 15cm long from the frontal bone deep through the left ear up to the occipital area; a cut through the left ear deep into the neck; a cut on the parietal area about 10cm a deep; a cut on the mandible from the chin up to the neck; an extensive cut wound through the thoracic vertebrae from T1 to T10 –10cms and amputated left arm. The cause of death was bleeding, secondary to deep cut wounds on the head and the back. 17.James Olango (PW5), a scenes of crime officer, went to the scene with other police officers on 6th June 2020 after a report about the incident was made at the station. They found the deceased’s body in an underground plastic water tank and retrieved it. They also retrieved two bloodstained pangas from a pit latrine, they found a brown carrier bag at the servant quarters which had a bloodstained piece of cloth and keys. There was a pool of blood in the main house, and items were scattered in the kitchen and the bedroom. He processed the scene after which the body was taken to the mortuary. 18.Musa Wambura (PW6) reiterated the evidence of PW 1 and PW 3. He testified that he saw the appellants on 5th June 2020 at about 400 pm, the appellants worked for the deceased as security guards(watchmen) and lived in the servant quarters within the deceased’s homestead but they were not at the home on 6th June, 2020 when they (PW1, PW3 and him (PW6) went to check on the deceased. 19.Dalamas Kibet Kisang (PW7), a government analyst, received samples on 19th June, 2020, namely, fingernails of the deceased, two pangas, a cream piece of cloth and swabs for analysis. The two pangas and the piece of cloth were stained with human blood. Analysis of the blood samples and DNA profiles generated from the blood samples matched the DNA profiles of the deceased, but blood from the piece of cloth belonged to an unknown male. He did not find anything in the samples that linked either appellant to the offence. 20.PW8, PC Tonui Gilbert, the investigating officer, was in the team that visited the crime scene and retrieved the deceased’s body from a water tank. There was blood in the main house, things in the house were scattered, they also retrieved two pangas from a pit latrine. Samples were taken and sent for analysis. 21.On 18th of June 2020, PW8 received a report that the 1st appellant had been arrested in Tanzania in a joint operation between Tanzanian and Kenyan officers and was being held at Sirare Police Station in Tanzania. He collected the 1st appellant and brought to Kehancha Police Station. He later collected the 2nd appellant at Namanga Border where the 2nd appellant had been detained after being arrested in Morogoro, Tanzania and took him to Kehancha Police Station. The appellants were later jointly charged with the deceased’s murder. 22.When put on their defence, the appellants gave sworn testimonies.The 1st appellant testified that he was introduced to the deceased by PW3 on 10th April 2020, the deceased informed him that he would work until noon but would not stay in the compound, and therefore he had to find accommodation elsewhere. It was the 1st appellant’s testimony that he worked for the deceased until 21st May 2020 and returned to his home in Tanzania after the deceased paid him for the work he had done. He was later arrested in Tanzania, brought back to Kenya and charged with an offence he did not commit. 23.The 2nd appellant also testified that he met the deceased on 10th April 2020 through PW3, the deceased informed them that they would work during the day, but he would not accommodate them, and they had to get accommodation elsewhere. They worked until 21st May 2020 when the deceased paid them, and he went back home in Tanzania. On 6th June 2020, he learnt of the death of his aunt and travelled to Morogoro where he was arrested, brought to Kenya and charged with murder. 24.The trial court considered evidence of both the prosecution and the appellants’ defence and concluded that the prosecution had proved beyond reasonable doubt the death of the deceased, that the death was due to unlawful cause and that the circumstantial evidence connected the appellants to the deceased’s death, convicted them and meted out the sentence as aforesaid. 25.We have re-evaluated and re-analyzed the evidence on record in order to come to our own conclusions. From the record and the submissions of both parties, three issues arise for determination, namely; whether the prosecution proved the offence of murder against the appellants beyond reasonable doubt; whether the circumstantial evidence relied upon met the legal threshold to sustain a conviction; and whether the sentence imposed was lawful and appropriate in the circumstances. 26.Section 203 of the Penal Code defines murder as the unlawful causing of death of another with malice aforethought. In that regard, the prosecution must prove the three ingredients, namely, the death of the deceased and its cause, that the death was unlawful and was caused by the accused, and that the accused had malice aforethought. 27.In this appeal, the death of the deceased and the cause thereof was not in contention. PW1, PW3 and PW6 broke into the deceased’s compound, found blood stains leading to a water tank from which the body was retrieved by Police officers and taken to the mortuary. PW5 and PW7 also saw the body, while PW2 identified the deceased’s body to PW4, who conducted a post-mortem. The body had several deep cut wounds on the head and other parts of the body, including an amputated left arm. PW4 confirmed that the cause of death was bleeding, secondary to deep cut wounds on the head and the back. These injuries were inflicted by someone through an unlawful act. 28.Turning to the question whether the appellants were responsible for the murder, there was no direct evidence connecting the appellants to the offence. The prosecution’s case rested entirely on circumstantial evidence. In Abanga alias Onyango v Republic (supra) this Court stated with regard to circumstantial evidence thus:“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;(ii)those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;(iii)the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else. (See also Sawe v Republic [2003] eKLR).” 29.The appellants who were working for the deceased denied that they committed the offence and raised a defence of alibi that they were not at the deceased’s home at the material time because they left for their homes in Tanzania on 21st May 2020, more than a week before the date the deceased was killed. In the circumstances, they could not have committed the offence. 30.This Court has addressed alibi as a defence to a criminal charge in several decisions. In Kiarie v Republic [1984] eKLR, this Court stated:“An alibi raises a specific defence and an accused person who puts forward an alibi as a defence to a charge preferred against him does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces in the mind of a court a doubt that is not unreasonable.” 31.In Victor Mwendwa Mulinge v Republic [2014] eKLR, this Court again stated that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies with the prosecution. (See also Karanja v Republic [1983] KLR 501). 32.Addressing the same issue in Adebiyi v S [2016] NGSC 92, the Supreme Court of Nigeria, (Nweze, JSC), observed that a defence of alibi is not a technical defence, but a simple assertion that the accused was elsewhere, a defence that should be raised in good time with sufficient details to allow the prosecution an opportunity to investigate it, though the burden still lies on the prosecution to disprove the alibi beyond reasonable doubt. 33.In the present appeal, PW3, who brought the appellants to work for the deceased, testified that he saw the appellants on 4th June 2020 when the deceased sent them to him. PW6 also testified that he saw the appellants at the deceased’s home on 5th June 2020 at 4.00 pm and that the appellants were staying in the servant quarters within the deceased’s compound. Although the appellants’ position was that they were staying elsewhere and not within the deceased’s compound, the evidence of PW3 and PW6 confirms that they were present on 4th and 5th June 2020 and placed them at the scene and therefore the last people seen at the deceased’s home thereby disproved their defence of alibi. 34.The 2nd appellant stated that he left his home in Tarime District on 6th June 2020 for Morogoro the same day the deceased’s body was discovered. It could not have been a coincidence that the 2nd appellant would leave Tarime, a neighbouring District to Kuria West Sub-County where the deceased lived, for Morogoro the same day the deceased’s murder was discovered and at a time when the police were looking for him. 35.We must reiterate that even though the conviction can be based on circumstantial evidence, the prosecution must establish that the chain of circumstances consistently points only to the guilt of the accused and that it is inconsistent with his innocence (Sawe v Republic (Supra). 36.In this appeal, the evidence of PW3 and PW6 put the appellants at the scene on 4th and 5th June 2020 and therefore, the last people seen in the compound before the deceased was murdered on the night of 5th and 6th June 2020. Although the “last seen with doctrine” alone would not be sufficient to convict the appellants where the case against them was based on circumstantial evidence, a review of the evidence on record and the circumstances under which the deceased died, could only link the appellants with the deceased’s murder before they escaped to Tanzania, and no one else. 37.The evidence of PW3 was that no one could enter the deceased’s compound and whenever a person knocked at the gate, the appellants would go to the gate, see who the person was and call the deceased. Apart from the deceased, the appellants were the only people with access to the deceased’s compound, they resided within the compound, knew the compound well, and keys were found in the servant quarters where they were staying. There was no evidence of a break-in, which means no other person from outside could have entered the compound without the appellants’ permission or knowledge. PW1, PW3 and PW6 had to break-in with permission from PW2 in order to access the home. 38.The appellants, being the last people seen in the deceased’s compound, had the burden to explain who killed the deceased, but failed to do so. 39.We also take note that the scientific analysis of the blood sample found on the piece of cloth recovered from the servant quarters where the appellants were residing belonged to an unknown person. Regrettably, no samples were taken from the appellants for analysis, leaving the question of whose blood it was unanswered. That omission alone, however, cannot exculpate the appellants from the offence. The unbroken chain of circumstances leaves no other inference than that they committed the offence before escaping to Tanzania. 40.On the issue of malice aforethought, section 206 of the Penal Code defines malice aforethought, and we agree with the trial court that malice aforethought was proved as required. The postmortem report concluded that the cause of death was bleeding, secondary to deep cut wounds on the head and back and a chopped off hand at the wrist. The trial court indeed graphically captured the severity of the injuries inflicted on the deceased as follows:“All the witnesses who saw the deceased’s body narrated how he had sustained deep cut wounds, PW4 specifically found five (5) deep cut wounds on the head, the wrist was chopped off, and other injuries to the back. After killing the deceased, the body was dragged and thrown in the water tank, trying to conceal the murder.The injuries that were inflicted on the deceased were clearly meant to end his life and the accused’s conduct of fleeing the home after commission of the offence is proof of malice aforethought.” 41.We affirm the finding by the trial court that the gravity of the injuries the deceased sustained and the weapon used demonstrated malice aforethought. 42.Regarding the last issue on sentence, Ms. Anyango, learned counsel for the appellants, argued that the sentence of 35 years was excessive and further, that the trial judge failed to take into account the period the appellants had spent in remand during trial as required by section 333(2) of the Criminal Procedure Code. Ms. Ikol, learned Senior Prosecution Counsel, maintained that the sentence of 35 years was lenient, but conceded that the trial judge should have taken into account the time the appellants spent in remand. 43.The appellants were sentenced to 35 years’ imprisonment each for an offence punishable by death. The trial court considered the appellants’ mitigation; applied its mind to the circumstances of the offence and concluded that the brutality and violence inflicted against the deceased was beyond imagination, the appellants took away a life for whatever reason in a manner that was uncalled for and, therefore, they did not deserve leniency. 44.The 1st appellant was arrested on 16th June 2020 and produced in court on 2nd July 2020, while the 2nd appellant took plea in the amended joint information on 14th October 2020. Although they were in remand until 24th February 2022 when they were sentenced, the trial court did not take into account the period they were in remand. 45.Other than that, we are satisfied that the appellants’ conviction was sound and the sentence lawful. We do not see any reason in law to interfere with the conclusions reached by the trial court on both conviction and sentence. 46.This appeal lacks merit and we accordingly dismiss it on both conviction and sentence. The sentence of 35 years shall, however, run from the date the appellants were produced in court, that is; 2nd July 2020 in the case of the 1st appellant and 14th October 2020 in the case of the 2nd appellant. DATED AND DELIVERED AT KISUMU THIS 12TH DAY OF JUNE, 2026.ASIKE-MAKHANDIA.............................JUDGE OF APPEALE. C. MWITA.............................JUDGE OF APPEALB. ONGAYA.............................JUDGE OF APPEALI certify that this is a true copy of original.DEPUTY REGISTRAR.