https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10634

Kipkoech v Republic (Criminal Appeal E113 of 2023) [2026] KEHC 10634 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KEHC 10634 (KLR) Republic of Kenya In the High Court at Eldoret Criminal Appeal E113 of 2023 PK Rotich, J June 26, 2026 Between Godfrey Keter Kipkoech Appellant and Republic Respondent (Being an Appeal from the Judgment and Sentence of Hon. P. N. Areri (SPM) delivered on 3rd November, 2023 in Eldoret CM Criminal Case No. 1042 of 2020) Judgment 1.The appellant was charged with the offence attempted murder contrary to Section 22 (a) of the Penal Code. The particulars of the offence are that on 20th April, 2020 at Chebisas High School in Moiben Sub-County within Uasin-Gishu County the appellant attempted to unlawfully cause the death of Margaret Jelangat by cutting her several times on the head and hands using a panga. 2.The trial magistrate considered the evidence of 7 prosecution witnesses and 4 defence witnesses and found the appellant guilty of the offence of attempted murder. Upon conviction, the appellant was sentenced to serve 14 years imprisonment. 3.Being aggrieved by the conviction and sentence by the trial court the appellant preferred this appeal against the entire judgment of the court. 4.The appeal is based on the following 13 grounds of Appeal which can be summarised as follows:a.That the trial magistrate erred in law and fact by failing to make a finding that the prosecution failed to discharge its statutory duty in proving all the ingredients of attempted murder within the meaning of Section 220 (a) of the Penal Code as read with Section 338 (1) of the Act.b.The trial magistrate erred by dismissing the appellent’s defences. 5.PW1, Margaret Chelagat, the complainant stated that she lived in Chepkoilel but ran a business at West Market. On 20/4/2020, PW1 stated, she closed work at 5pm and boarded a matatu at 6.00pm to go home. When she alighted, PW1 stated, she went to Chepkoilel market to do shopping for supper. 6.A lady at a grocery, PW1 stated, warned her to shop quickly and go home because someone was following her. 7.On her way home, PW1 stated, someone called her “Maggie Maggie” and when she turned, she saw the accused. She continued walking, but suddenly, PW1 stated, something hit her head and she saw the accused cutting her with a panga. PW1, further, stated that the accused to reach for her neck and she prevented him from removing her sweater. 8.PW1 also stated that she saw the fingers of her right hand hanging as they had been cut – middle finger in her right hand had been cut. 9.PW1 stated that she screamed and a lady who sell vegetables came. As she lay on the ground as she couldn’t move, PW1 stated, Godfrey(appellant) continued cutting him. The appellant was, however, hit with a stone, PW1 stated and the panga he had fell. It was about 7.00pm, PW1 stated and was raining. 10.PW1, further, stated that the village elder called for an ambulance and when the ambulance was availed the village elder held onto her until she got to Moi Teaching and Referral Hospital (MTRH). At MTRH, PW1 stated she was admitted at the emergency ward and taken to the theatre. PW1, further, stated that she was on theatre for 8 hours and was admitted in the hospital for 1.5 months. After which he continued treatment as an outpatient. 11.She also stated that he had threatened to kill her if she did not go back to him and she reported the matter at Ainabtich Police Station vide OB No. 14/4/3/2021. 12.PW1, further, stated that she was married to the accused for 10 years before they separated. The witness showed the trial court multiple scars on the head, neck, face and 2 fingers were missing on her left hand and middle right handfinger. 13.PW2, Joseph Owino Ayeigo, a village elder at Chebisas stated on 20/4/2020 at about 7:50 pm while he was at his house, a neighbour informed him that the man who threatened to kill his wife had come. PW2, also stated he had arrested the accused 3 times before and taken him to the chief. He went out running, PW2 stated and found the complainant near Full Gospel Church had been cut and lying on the ground. 14.The accused, PW2 stated, was also on the ground on the other side. PW2, further, stated he stopped a university ambulance and accompanied the compainant to hospital. 15.PW3, Nancy Emojong, also lives at Chepkollel and was a grocery seller. On 20/4/2020 at 6:30 pm, PW1 stated she was at her shop selling and the complainant went to her shop. She attended to her before closing because there was curfew. 16.Suddenly, PW3, stated, she heard PW1 screaming and she went to where she was. At the scene, about 100 meters away, PW3 stated, she found the complainant on the ground and her husband (appellant) was cutting her with a panga. 17.After some time, PW3, stated, people responded to his calls and threw stones at the appellant. PW3, further, stated, that the appellant ran towards her shop as people hit him and pretended to be dead. 18.In the meantime, PW3 stated, the complainant who was not breathing and had multiple cuts was put in an ambulance and taken to hospital. When the police arrived, PW3, stated, they woke Godfrey the appellant up and took with away. 19.Finally, PW3 stated that he knew the appellant as the complainant’s husband. On cross-examination, PW3 stated as the appellant run towards his shop the panga that he had fell. 20.PW4, Derick Kinyanjui is a businessman. On 20/4/2022 he boarded a motorcycle from Munyaka heading to Sogomo at about 6:30pm. When he got to Chebisas High School, PW4 stated, he heard a woman screaming and saw people running across the road. When they go to the scene, PW4 stated, he found that the woman was injured on the head and the right hand. 21.PW5, Dr Philemon Choge, works at Moi Teaching and Referral Hospital Department of Medical Legal. PW5 stated that on 20.4.2020 the complainant went to their hospital as patient No. 0942378. PW5 also stated that all the complainants’ clothes were socked in blood and was bleeding profusely from the head and hands. 22.PW5, further, stated that the complainant suffered multiple cut wounds on the hands, traumatic amputation of the 4th digit on the left hand and cut wounds on the left wrist and thumb. PW5 also stated the claimant suffered cuts on 2nd and 3rd digits on the left hand. 23.Additionally, PW5 stated that the injuries suffered by the complainant were 3 hours old and were caused by a sharp object. He also stated that the patient was admitted and surgery done. 24.The degree of injury suffered by the complainant, PW5 stated, was assessed as grievous harm. The also witness produced the complainants discharge summary as P. Exhibit 2. 25.In his defence, the appellant stated that he is a community leader and represents the county government of Uasin Gishu at Kipkaren market as a market master. On 20/4/2020 the accused person stated, he dropped his brother-in-law at the complainants’ house at Matemo centre, 800 m from the main Eldoret – Chepkollel highway. On his way back, the appellant stated, he saw the complainant alighting from a matatu and he parked his motorcycle and greeted her. The appellant, further, stated they went with complainant to a nearby shop and bought some food stuffs. 26.At about 5:30 pm, the appellant stated, he escorted the complainant to her house 800 meters away. After turning 50 meters from the main road, the appellant stated, he saw two men. One pushed him to the ground, the appellant stated and the other attacked the complainant with a panga but he struggled so hard and overcame the assailants and the two men ran away. The appellant, further, stated that the assaulter told the complainant “wachana na bwana ya mwingine tumekuonya mara nyingi lakini usikii.” (leave someone’s husband alone we have warned you several times) 27.The appellant also stated that the complainant was his wife of 10 years and at the time of the incident herein they were separated but he used to visit her. 28.When the assaulters ran away, the appellant stated, he rushed to assist the complainant who was writhing in pain and was unconscious. The appellant, further stated that when the complainant gained consciousness, she screamed loudly causing people nearby to come to her rescue. To his surprise, the appellant stated, the complainant told people he was the one who attacked her and members of the public attacked him and beat him up. 29.This being a first Appeal, the Court ought to revisit the evidence afresh, evaluate it and come to it own conclusion bearing in mind the lower court had the advantage of observing the demenour of witnesses and give due allowance for this (see Mark Oiruri Mose v Republic [2013] eKLR.) 30.The first issue for determination in this is whether the prosecution proved the case of attempted murder against the accused. The second issue is whether the sentence imposed on the appellant is appropriate. 31.Section 220 (a) of the Penal Code makes provisions for the offence of attempted murder. The section provides as follows:“Any person who:a.Attempts unlawfully to cause the death of another; orb.With intent unlawfully to cause the death of another does any act or omits to do any act which is in his duty to do, such act or omission being of such a nature likely to endanger human life, is guilty of a felony and is liable to imprisonment for life.”In the above context attempt is defined under Section 388 of the Penal Code as follows:(1)When a person intending to commit an offence, begins to put his intention into execution by means adopted to its fulfilment and manifests his intentions by some overt act, but does not fulfil his intentions to such an extent as to commit the offence, he is deemed to attempt to commit the offence……” 32.In the case of Cheruiyot -vs- Republic (1976 – 1985) E47 Madan JA as he then was quoting with approval Republic -vs- Gwepazi S/O Mukhonzo [1943] in EACA 101, R -vs- Luseno Wandera [1948] in EACA 105 and Mustafa Dega S/o Andu -vs- R [1950] EACA 140, stated as follows on mens rea of attempted murder:“In order to constitute an offence contrary to Section 220, it must be shown that the accused had a positive intention unlawfully to cause death. The essence of the offence is the intention to murder as presented by the prosecution.” 33.Further, in Abdi Ali Bora -vs- Republic (2015)KECA 794(KLR) the Court of Appeal held:“Like in virtually all other offences, the prosecution in a charge of attempted murder must prove both mens rea and actus reus of the offence. In Republic -vs- Whybrow [1951] 35 Cv. Application Rep 141 Lord Goddard stated that:“But if the charge is of attempted murder, the intent becomes the principal ingredient of the crime” 34.PW1 testified that while returning home evening and purchasing groceries from a road-side shop, she heard someone call her by name. Upon turning, PW1 stated, she recognized it was the appellant who was her husband for 10 years but were separated. Thereafter, PW1 stated, she sustained a blow on the head and suffered multiple cut wounds. 35.PW 1 observed that it was the appellant who wielded a panga was the one who had cut her.PW1, further, stated that the appellant attempted to cut her with a panga on the neck but she shielded herself clutching onto her sweater which the appellant attempted to remove but he cut off her fingers. 36.The evidence of the complainant is corroborated by PW3, a grocery seller. The witness stated she went to the scene of crime, about 100 metres away from her shop after hearing PW1 screaming and found the appellant hacking PW1 with a panga. 37.PW1 also showed the trial court multiple scars on the head, neck, face and 2 fingers were missing on her left hand and middle right hand-finger. 38.The evidence of PW1 was, further corroborated by PW5, Dr Philemon Choge of MTRH. PW5 testified the complainant was taken to the hospital and her clothes were socked in blood and she was bleeding profusely from the head and hands. PW5, further, stated that the complainant suffered multiple cut wounds on the hands, traumatic amputation of the 4th digit on the left hand and cut wounds on the left wrist and thumb. PW5 also stated the claimant suffered cuts on 2nd and 3rd digits on the left hand. Additionally, PW5 stated that the injuries suffered by the complainant were 3 hours old and were caused by a sharp object. 39.This court agrees with the prosecution submissions that having armed himself with a panga, the appellant proceeded to strike PW1 on the head with the sharp edge fully cognizant that such action was likely to cause death to the complainant. 40.The element of premeditation is, further demonstrated by the fact that the appellant positioned himself at the scene at the precise moment that PW1 was returning home in the evening. 41.PW3 testified that she found the appellant actively hacking PW1 with a panga. The court, therefore, agrees with the respondents’ submission conduct the appellant’s was manifestly deliberate and calculated and his actions were of such a nature as to potentially result in the death of PW1. 42.The appellant’s in his defence testified that he met the complainant after she alighted from a matatu. He also stated he greeted PW1 and escorted her to nearby shop, where they purchased groceries before accompanying her to her residence. He, further, claimed two men accosted them as they headed to the complainant’s place and they both sustained injuries during the ensuing confrontation. It is not in dispute that the appellant and the complainant had acrimonious relationship. The court agrees with the prosecution rosy picture pointed in his defence is an attempt at subterfuge. 43.The appellant contended that the charge sheet was defective for failure to specify the precise time of which the offence occurred. The court, however, agrees with the respondent that the omission constituted a minor technical defect which neither prejudiced the appellant nor occasioned a miscarriage of justice. 44.Article 159(2) of the constitution provides that Justice shall be administered without undue regard to procedural technicalities. Further, Section 382 of the Criminal Procedure Code stipulates that no finding or sentence shall be reversed on account of minor omissions or irregularities unless such defect has occasioned a failure or prejudice the accused. 45.The above position is supported by the position in Francis Zunel Moturi v Republic Criminal Appeal No. E001 of 2022 in which Hon. Prof (Dr.) Nixon Sifuna J while dismissing a similar contention stated as follows;-“Defects in the charge sheet need to be those that are manifest on the face of record, and not those that come from craft of interpretation, from sheer application of logic, philosophical rationalization, extravagant and pedantic examination, a tooth comb analysis, or those of mere grammar and punctuation. The later would bother a grammarian and not a court of law. In essence, courts adopt a realistic and pragmatic approach rather than an abstract and academic approach. I hold that;It is not very minor, minute error or slip or goof in a charge would amount to actionable defect as to abort a charge. Such an approach would fly in the face of Article 159 of the Constitution of Kenya, which enjoins Courts to determine cases on merits and substantive justice, and not cost procedural ............” 46.In his mitigation the accused expressed profound regret and apologized for his actions. He also pointed this was a first offence. 47.The prosecution urged the court to sentence the accused to serve life imprisonment pointing out this was a classic case of gender-based violence. The prosecution stated the accused is a dangerous person who should be kept away from the surety and a deterrent sentence should be meted on him. 48.The victim also stated that the appellant continued to threaten her even in court. Taking into consideration the nature of the offence, mitigation and victim impact assessment the court trial sentenced the accused to serve 14 years imprisonment. It is my finding the sentence meted upon the accused is just and appropriate taking into consideration the conduct of the serious nature of the offence herein and the serious physical and psychological injuries suffered by the complainant. 49.In total, this Appeal lacks merit and the same is dismissed. DATED, SIGNED AND DELIVERED AT ONLINE VIA MS TEAMS THIS 26TH DAY OF JUNE 2026.HON. P. K. ROTICHJUDGEIn the presence of:The appellant in personMs.Kirenge for DPPCA - Kipchirchir