https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7895

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **MACHAKOS LAW COURTS** **HCCRA NO. E003 OF 2025** **JOSEPH KIBAKI KIMANI ……................................................1ST APPELLANT** **AUGUSTINE GICHINGA KIMANI ……………………………2ND APPELLANT** **-VERSUS-** **REPUBLIC…………………………………………………............RESPONDENT** *(Being an appeal from the Judgment of Hon. Khapoya S. Benson (SPM) in Kithimani MCCR NO. E272 of 2020 delivered on 21/11/2024)* **JUDGMENT** 1. In the judgment delivered by the Senior Principal Magistrate’s Court at Kithimani in Criminal Case No. 272 of 2020, the two appellants, Joseph Kibaki Kimani and Augustine Gichinga Kimani together with Agatha Philomena Wanjiru Kimani who was acquitted, were originally jointly charged with the offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. 2. The particulars were that on 20th May 2020 at Silanga village, they jointly and unlawfully killed Albanus Kioko Masinde. 3. The respondent called six witnesses, while the first appellant gave a sworn statement, the second appellant gave an unsworn statement and called one witness, and Agatha Philomena Wanjiru gave a sworn statement and called one witness. 4. The court heard a testimony from a boda boda operator who testified that he ferried the first and second appellants to their home, where he saw the second appellant slap the deceased and the first appellant join in beating him. 5. Another witness testified to seeing the appellants beat the deceased, with the first and second appellants punching and knocking the deceased against a motorcycle while watched. 6. The deceased’s sister and father also testified, the father explaining that after the assault he found his son unable to talk, later found him dead in his house after breaking the door open. 7. A post mortem examination revealed multiple injuries due to blunt force trauma, including fractured ribs, crushed blood vessels, and subgaleal haematoma, and the doctor concluded the cause of death was multiple injuries from blunt force trauma. 8. The investigating officer confirmed receiving a report of the assault and that the deceased had strained marital relations with the third appellant. 9. In their defence, the first and second appellants claimed they only calmed the deceased down and let him leave, while Agatha Philomena Wanjiru and her mother testified that the deceased had come to their home drunk, created chaos, beat Agatha and pushed their mother to the ground, prompting them to call the first and second appellants to intervene. 10. The court found that the respondent had proved beyond reasonable doubt that the first and second appellants jointly assaulted the deceased, occasioning fatal injuries, and that their defence of having spoken amicably to the deceased was not believable. 11. Consequently, the court convicted the first and second appellants of manslaughter under section 215 of the Criminal Procedure Code. 12. However, regarding Agatha , the court found that the respondent had failed to prove its case against her beyond reasonable doubt, and accordingly she was acquitted of the charge of manslaughter. 13. The trial court sentenced the 1st and 2nd appellants to twenty (20 ) years imprisonment each. They have appealed to this court against both the conviction and sentence on the following grounds; 14. ***THAT the Learned Trial Magistrate erred in law and fact in convicting the Appellants while there was insufficient evidence to prove the charge, and the evidence was otherwise inconsistent, discredited, fabricated, and suspicious.*** 15. ***THAT the Learned Trial Magistrate erred in law and fact in convicting the Appellants in a trial that failed to meet the threshold set out in Article 50 (2) (c), (h), and (j) of the Constitution of Kenya 2010.*** 16. ***THAT the Learned Trial Magistrate erred in shifting the burden of proof to the Appellants by rejecting their defence without proper evaluation.*** 17. ***THAT the Learned Trial Magistrate erred both in law and in fact by relying on hearsay evidence in convicting the Appellants, making their conviction unjustified and unsafe.*** 18. ***THAT the sentence of twenty (20) years imprisonment meted out on each of the Appellants was harsh and excessive and against the spirit of rehabilitation and reintegration, considering current developments in jurisprudence as regards sentencing***. 19. The parties filed written submissions as follows; The 1st appellant submitted that the trial court failed to recognize he acted without premeditation or malice aforethought, as shown by the evidence that he voluntarily reported the incident at the police station before any arrest. 20. He contends the fatal confrontation arose from sudden provocation, not intent to kill, because the deceased, while drunk, caused chaos at the appellant’s home, assaulted his own wife, and injured the appellant’s mother by pushing her to the ground. 21. The 1st appellant was not present initially but was called by his sister (the deceased’s wife), who reported the violence; upon arriving, he found his mother bleeding. 22. PW4 confirmed the 1st appellant was already at the station making a report, and PW1 described the fight as a “normal fight,” not a planned assault. 23. The 1st appellant submitted the trial court should have credited the deceased’s wife’s testimony, since she was acquitted and her evidence supported that the deceased was the aggressor. 24. He further submitted that the circumstances fall within the legal definition of provocation under sections 207 and 208 of the penal code, as he acted in the heat of passion caused by a wrongful act, the assault of his mother and sister, while standing in a filial relation to the victim, leaving no time for his passion to cool. 25. The investigation officer’s evidence that the deceased was quarrelsome when drunk further supports this. 26. The 1st appellant concludes that, rather than murder, the offence should be treated as manslaughter or at least attract a lesser sentence, and he urges the court to reduce his twenty-year imprisonment to five years, emphasizing that he did not expect the simple fight to cause death and was acting in defence of his family. 27. The 2nd appellant also submitted that the trial court erred by failing to apply the principle of proportionality under paragraph 1.2.1 of the Judiciary Sentencing Policy Guidelines, as the sentence imposed was not commensurate with his limited role in the incident. 28. He emphasizes that the evidence, particularly from PW1, shows he only slapped the deceased and did not otherwise assault him, and that such a minor act could not reasonably have caused death. 29. The 2nd appellant further contends that the trial court ignored the absence of equal participation in the assault and failed to consider that the death resulted from a simple family fight, which he deeply regrets, especially since the deceased was his sister’s husband. 30. He explains that he acted only after his sister made a distress call about the deceased causing trouble and assaulting their mother, and upon arriving, he and his brother found their mother injured. 31. The 2nd appellant highlights that after the incident, he and his brother voluntarily went to the police station to report what had happened, showing shock and a lack of malice aforethought. 32. He argues that the evidence of PW4 (the deceased’s father) and PW6 (the investigating officer) supports the presence of provocation, as the deceased was drunk, quarrelsome, and had pushed and injured the mother. 33. DW3, the deceased’s wife, confirmed that the deceased was beating her and injured her mother, which prompted her to call the appellant. 34. The 2nd appellant maintains that he was provoked in the heat of passion to defend his parent, and under sections 207 and 208 of the penal code, this should reduce the offense to manslaughter warranting a lesser sentence. 35. He submits that the trial court overlooked this defence and failed to evaluate the evidence of provocation properly. 36. Consequently, he urges the appellate court to find that the death was caused without malice aforethought, to sentence him to no more than five years’ imprisonment, and to allow the remainder of the sentence to be served on probation so he can care for his mother, who was also a victim. 37. The respondent’s submissions oppose the appeal filed by Joseph Kibaki Kimani and , Augustine Gichinga Kimani, who were originally charged under sections 202 and 205 of the penal code. 38. The incident occurred on 20th May in Kyeleli location, Matungulu sub-county, where the appellant and two others allegedly killed Albanus Kioo Masinde. 39. After a full trial where all pleaded not guilty, on 21st November 2024 the appellant and the second accused were convicted of manslaughter and sentenced, while the third accused was acquitted. 40. The appellant, aggrieved by the trial court’s sentencing, filed this appeal. The respondent argues that the sentence should stand, raising a single issue: whether the sentence was legal. 41. Noting that section 205 of the penal code provides that any person who commits manslaughter is liable to imprisonment for life, the respondent points out that the trial court actually sentenced the appellant to a term lesser than the maximum prescribed by law, thus the sentence is clearly legal 42. The issues arising for determination in this first criminal appeal are as follows; 43. ***Whether the prosecution proved the charge of manslaughter against the appellants beyond reasonable doubt,*** 44. ***Whether the appellants' defences of family defense and provocation were properly evaluat*ed by the trial court, and** 45. ***Whether the sentence of twenty years imprisonment imposed on each appellant was harsh, excessive, or unproportional under the circumstances.*** 46. As a first appellate court, the duty is to re-examine, re-evaluate, and analyze the entire evidence on record afresh to arrive at an independent conclusion, while keeping in mind that the trial court had the distinct advantage of seeing and hearing the witnesses firsthand. 47. In evaluating the conviction, the evidence of the independent eyewitnesses, including the boda boda operator, firmly establishes that the first and second appellants jointly assaulted the deceased by slapping, punching, and knocking him against a motorcycle. 48. This ocular evidence is corroborated by the post-mortem report prepared by the medical doctor, which cited multiple injuries from blunt force trauma, including fractured ribs, crushed blood vessels, and a subgaleal haematoma, as the definitive cause of death. 49. Under the law, to sustain a conviction for manslaughter under Section 202 as read with Section 205 of the Penal Code, the prosecution must prove an unlawful act or omission that causes the death of another person without malice aforethought. 50. The medical and eyewitness evidence directly links the unlawful assault by the first and second appellants to the death of the deceased, thereby proving the actus reus and establishing the conviction for manslaughter beyond a reasonable doubt. 51. The trial magistrate cannot be said to have shifted the burden of proof, as the prosecution fully discharged its primary burden before the defence was evaluated and properly discounted as unbelievable. 52. Regarding the appellants' contentions on provocation and family defense under Sections 207 and 208 of the Penal Code, the law requires that an act be committed in the heat of passion caused by sudden and severe provocation before there is time for passion to cool. 53. While it is true that the third appellant’s evidence pointed to the deceased being drunk, violent, and having assaulted his wife and mother-in-law, the first and second appellants were not present during the initial confrontation. 54. They were summoned from afar, travelled to the scene, and then proceeded to administer a severe, coordinated beating. 55. This sequence of events shows a lapse of time during which any immediate heat of passion would have cooled, transforming their actions from a spontaneous reaction into a retaliatory assault. 56. Furthermore, the defence of a third party or family member must be proportionate to the threat faced. 57. Knocking an individual against a motorcycle and inflicting fractured ribs and internal bleeding goes far beyond the reasonable force necessary to subdue a chaotic or drunk relative. 58. Therefore, while the trial court correctly noted the domestic discord, it did not err in finding that these circumstances could not completely exculpate the appellants from criminal liability for the death. 59. On the issue of sentencing, it is trite law that an appellate court will not normally interfere with the sentencing discretion of a trial court unless it is shown that the court acted on wrong principles, overlooked material factors, or meted out a sentence that is manifestly excessive. 60. The respondent correctly notes that under Section 205 of the Penal Code, manslaughter carries a maximum sentence of life imprisonment, making a twenty-year term legally permissible. 61. However, the trial court failed to adequately apply the principle of proportionality enshrined in the Judiciary Sentencing Policy Guidelines and long-standing Kenyan jurisprudence. 62. Sentencing must reflect the unique mitigating factors of the offence, including the degree of participation, lack of premeditation, and the volatile context of the confrontation. 63. The record shows that the confrontation arose out of a sudden, unstructured family dispute where the deceased was the initial aggressor against the appellants' vulnerable mother and sister. Additionally, both appellants were first-time offenders who voluntarily surrendered to the police to report the matter, demonstrating an absence of deep-rooted malice and a high potential for rehabilitation. 64. Imposing a flat twenty-year term failed to distinguish between the individual actions of the second appellant, who primarily initiated the confrontation with a slap, and the cumulative gravity of the assault, and it overlooked the mitigatory weight of family distress calls. 65. To meet the spirit of rehabilitation and proportionality, a custodial sentence remains necessary given the loss of human life, but it must be tempered to reflect these deep mitigating factors. 66. Consequently, the appeal against conviction is dismissed, but the appeal against sentence is allowed. 67. The twenty-year imprisonment term for each appellant is set aside and substituted with a sentence of five years imprisonment for each appellant, to run from the original date of conviction by the trial court. 68. Orders to issue accordingly. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 4TH DAY OF JUNE 2026** **ASENATH ONGERI** **JUDGE** **In the presence of** Appellants both present at Kamiti Maximum prison PC Mangare – for State Chrispine - Court Assistant