https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1516

Mukiti v Republic (Criminal Appeal E132 of 2023) [2026] KECA 1516 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1516 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Criminal Appeal E132 of 2023 PO Kiage, J Mohammed & GV Odunga, JJA July 31, 2026 Between Kiteng'u Mukiti Appellant and Republic Respondent (Appeal from the judgment of the High Court of Kenya at Garissa (Dulu, J.) dated 28th February 2019 in Criminal Case No. 17 of 2015) Judgment 1.The appellant, Kiteng’u Mukiti and one Jonathan Mwangangi Mwinzi (Jonathan), were charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, the particulars being that between 13th and 15th October 2015 at Madongoi Sub- Location, Kavaani Location in Kyuso Sub-County within Kitui County, they jointly murdered Kazungu Nzenge. They pleaded not guilty to the offence. After the hearing, both accused persons were found guilty and sentenced to 25 years imprisonment. 2.The prosecution evidence was that in September 2015, the deceased, his brother Mwendwa Nzenge (PW1), the appellant and Jonathan (also known as Calos) were burning charcoal in a hyena inhabited forest in Madongoi. However, PW1 at one point returned home at Kalwa to check on his pregnant wife. He later received a telephone call from Mutia Muthui (PW2), a relative residing at Madongoi, enquiring about the whereabouts of the deceased who h had not been seen for some two days. PW1 informed PW2 that he had left the deceased in the company of the appellant and the accused persons where they were burning charcoal while spending the nights under trees. PW1 was informed by PW2 that when he went to the forest to look for the deceased, he saw the appellant taking away the deceased’s charcoal. 3.When PW1 went to Madangoi, he found PW2 and other people, including the appellant who was tied with ropes, at the scene. Jonathan was, however, absent. He saw the partly mauled body of the deceased covered with tree branches. The appellant suspected the deceased to have been killed by Jonathan before Jonathan disappeared. 4.In cross-examination, PW1 stated that PW2 had informed him that the appellant had alleged that the deceased had been chased away by Somalis, who invaded the area with their livestock. He admitted that there was disagreement over water but maintained that the issue was not so serious as to cause the death of the deceased. Although they were burning charcoal in different parts of the bush, they were spending the nights at the same place. 5.PW2, the deceased’s relative on the mother’s side, knew the accused persons as farmers and charcoal burners. On 12th October 2015 while at River Mitamisi at 6.45am, he saw the deceased, fetching water from the same river. At that time, he was not concerned about the deceased’s welfare because he knew that he was in the company of PW1 and the accused persons. However, when on 15th October 2015, he inquired from the appellant the whereabouts of the deceased, the appellant informed him that the deceased had returned home at Kalwa. PW2 then called PW1 and informed him that he had not seen the deceased for three days and also requested one Ngoku Paul to inquire about the deceased’s whereabouts. On 17th October 205, when he went to the charcoal burning site, he saw Jonathan, one Mutemi Ngweso and the appellant but did not see the deceased. He then informed the Nyumba Kumi elder, Sammy Nzelu (PW3), and the headman, Kitheka Mutemi (PW4), about the disappearance of the deceased. Although a search for the deceased was mounted, both the accused persons did not turn up for the search. When eventually traced, the appellant stated that he had been informed by Jonathan that the deceased had gone home. The following day, the deceased’s partly mauled body was found at the charcoal burning site with a rope around his neck and waist and his hands tied with a sweater. Next to the body was one shoe while the other shoe was about 100 metres away. Nearby was a pair of trousers. While some body parts, including the eyes were missing, PW2 identified the deceased by the face. According to him, the appellant who was present, appeared shocked. 6.In cross-examination, PW2 stated that he was unaware of any existing grudge between the deceased and the accused and admitted that there were other charcoal burners and livestock herders in the forest. According to him, the body which had the thorax and the upper part eaten, was on an old tree hidden by firewood gathered. It was his evidence that PW1 had left the forest three weeks earlier. 7.Samuel Nzelu Ngema (PW3), the area Nyumba Kumi Chairman, received information from PW2 on 17th October 2015 that the deceased had disappeared on 12th October 2015. Upon conducting a search, they found the appellant who was drunk and upon being asked the whereabouts of the deceased, the appellant informed them that the deceased had been speared by Somalis. When a search for the deceased was mounted on Sunday at 2pm, they found the deceased as well as his shoe. It was his evidence that the appellant was reluctant to participate in the search and was intent at misleading them in the direction of the search until they were alerted by a foul smell. He observed scuff marks on the ground which led them to where the body of the deceased was found between trees, seemingly having been dragged by hyenas. According to him, there seemed to have been a failed attempt to set the place on fire. A second shoe was found next to the scene where the body was found with a rope tied to the neck and waist while the hands were tied with a sweater. Based on the information received on the whereabouts of Jonathan, he was arrested at Boka with the assistance of the area chief. 8.In cross-examination, PW3 confirmed that charcoal burning activity was prevalent in the game park. In his evidence the accused persons, by taking the deceased’s charcoal, must have been aware of his death. 9.The opinion as to the deceased’s cause of death was given by Dr. Kiema Mwango (PW5) in the information contained in the post mortem report filled in by his colleague, Dr Elias Wakoli, on whose behalf he produced the document. According to the entries in the report, the body was extensively decomposed with the time of death being estimated to be 10 days earlier. Parts of the body from the knee downwards were missing while the pelvic bone was in two separate pieces. There was a fracture on the forearm while on the neck and waist were tightly knotted ropes and a tightly knotted T-Shirt on the left forearm. According to the report, the cause of death was asphyxia due to strangulation. In his evidence, although the cause of death was based on the tight rope found on the neck, other causes of death were possible. 10.The case was investigated by Sgt Chris Mumia (PW6) upon receipt of a report of a missing and found person from a person sent by the deceased’s brother (PW2). In the company of other officers, PW5 visited the scene where they recorded the statements from the witnesses. From the information gathered, the appellant, upon being questioned why he was harvesting the deceased’s charcoal disclosed that he had been sent to do so by Jonathan who informed him that the deceased had gone home. Upon being shown the sleeping place of the deceased, he observed signs of a struggle and dragging on the ground and recovered plastic or “tanga” shoes. According to his observation, the body had been in a place where it was dragged by wild animals for 50 metres. He drew a sketch map which he exhibited together with the shoes. In his evidence, the accused were arrested because they harvested the deceased’s charcoal and due to the unexplained disappearance of Jonathan. In his evidence the tying of the ropes on the deceased’s neck and waist was evidence that he was not killed by wild animals. 11.In his statement, the appellant stated that on the morning of 25th October 2015, he opened his gate for the goats before proceeding to his farm where he worked till 10am when the Assistant Chief came and requested him to accompany him to the police station. He boarded the Assistant Chief’s motor cycle and they proceeded to Ngomeni Police Station where he was arrested and kept in custody for 3 days after which he was transferred to Kyuso Police Station and placed in custody for three weeks before being arraigned in court. 12.The learned trial Judge, upon considering the evidence, found that based on the fact that the deceased’s T-shirt was found tied around his forearm and his plastic “tanga” shoes were found nearby in the same area where the deceased and others burnt charcoal, notwithstanding that the deceased’s decomposed and devoured body was eaten by wild animals, the prosecution proved beyond reasonable doubt that the remains found belonged to the deceased and that the deceased died as described by the doctor trough asphyxia by strangulation. He was satisfied that the circumstances under which the deceased met his death established that the death was unlawful. He ruled out the possibility of the death being caused by wild animals: “ tying the deceased (sic) hands with a T-shirt; and tying tightly the neck and the waist with ropes.” 13.While acknowledging that the evidence as to who caused the deceased’s death was circumstantial, the learned Judge considered the facts and while appreciating that an accused person does not have a burden to explain his innocence, was of the view that the accused were expected to explain when and how they left the deceased in the bush. The learned Judge, based on the totality of the evidence on record, concluded that the death of the deceased was caused by the accused persons and not by Somalis or wild animals. He found that there was malice aforethought as defined in Section 206 of the Penal Code, found the accused persons guilty of the offence of murder and convicted them accordingly. He meted the sentence of 25 years on each of the accused persons after considering their mitigation. 14.Dissatisfied with the said decision, the appellant is before us challenging the same on the grounds: that the evidence adduced did not satisfy the standard of proof in criminal cases; that mens rea was not conclusively established; that there was a violation of Section 386(1)(b) of the Criminal Procedure Code; that the prosecution did not prove malice aforethought; that the prosecution case was unsafe and could not be supported having regard to the evidence on record; that the learned Judge did not give regard to the defence which exonerated the appellant; and that the learned Judge failed to consider section 333(2) of the Criminal Procedure Code with regard to the period spent in custody from August 2015 to 28th February 2019. 15.We heard the appeal on 17th February 2026 on the Court’s virtual platform when learned counsel, Mr Gesumwa Mayieka, appeared for the appellant, who was present from Garissa Main Prison, while the respondent was represented by learned counsel, Ms Njoki King’aara. Both learned counsel relied substantially on their respective written submissions. 16.On behalf of the appellant, it was submitted, while not denying the fact of the death of the deceased, that it was a misdirection on the part of the learned Judge to attribute the deceased’s death to the appellant on the basis of uncorroborated circumstantial evidence, and which failed the test of convicting based on circumstantial evidence restated in the case of Mwita v R [2004] 2 KLR 60 and Simon Musoke v R (1959) EA 715). 17.It was noted that the evidence of PW1 to PW4 with regard to the scene of crime was contradictory, as they all gave different accounts as to what they witnessed at the scene regarding the manner in which the deceased’s wrist was tied. The evidence and testimony of PW6, the Investigating Officer, was faulted since he did not collect, as evidence, the ropes and sweater that had allegedly been used to tie up the deceased, and neither did he preserve the crime scene, which by the time he arrived, had been tampered with by the over 100 people who had been called by PW3 and PW4 to help with the search of the deceased. 18.According to the appellant, the evidence that Somali herdsmen were known to also graze livestock in the forest, was not considered. To the appellant, it was plausible that these herders may have attacked and killed the deceased, a possibility which was overlooked by the trial Court which ought to have interrogated further the possibility or probability that the deceased may have been killed by any person(s) other than the appellant. The appellant also noted the contradiction in the evidence regarding the time when PW1, the brother to the deceased, left the forest to go home and the time when the deceased’s body was discovered. The uncertainty of the time of death, according to the appellant, was compounded by the post mortem report which indicated the time of death as being more than ten (10) days before the post mortem which was carried out on 29th October 2015. The failure by the prosecution to establish the precise timelines within which the death of the deceased could have occurred, it was submitted, created an element of doubt as to when the death occurred, and if at all the same was therefore attributable to the appellant. 19.It was the appellant’s case, therefore, that the prosecution did not meet the required standard of beyond reasonable doubt since there were too many unanswered questions with regards to the witnesses’ testimonies which the trial Court should have further interrogated before arriving at the erroneous conclusion that it did. These included questions such as why and the circumstances under which the appellant was in possession of the deceased’s charcoal and whether he was the last person to have seen the deceased alive. In the appellant’s view, the circumstantial evidence was not sufficient to convict the appellant of the offence of murder. 20.According to the appellant, the prosecution failed to establish how the appellant, who was arrested for being in possession of the charcoal belonging to the deceased, became a suspect in a murder case. It was submitted that the prosecution failed to prove mens rea on the part of the appellant in the murder of the deceased since it did not establish that the appellant had ill motive and reason to kill the deceased as alleged. Citing Section 206 of the Penal Code on malice aforethought, it was submitted that the prosecution, in seeking a conviction of guilt against the accused person, had to show that there was an intention to commit the offence, and that there was knowledge that the act or omission would cause death, both of which were unproven. According to the appellant, the prosecution only adduced evidence that the deceased’s death may have been caused by strangulation, but not that the strangulation was attributable to the appellant. The inference of guilt, it was submitted, was based on assumptions and not on any factual or evidentiary proof that the appellant indeed committed the offence charged, but that since they lived together in the forest, or that they stayed together and that they were the last persons seen together alive with the deceased, in all likely circumstances it was them that committed the offence. 21.The learned Judge, it was contended, failed to appreciate that in as much as the post mortem report indicated that the cause of death may have been strangulation, there was also the possibility that there may have been other causes, which were indicated as much in the report which did not rule out “other causes of death” including soft tissue injuries such as stabbing. The evidence of PW5 and PW6, it was added, neither placed the appellant at the crime scene, nor proved that he committed the crime, or that he may have in any way been involved in the death of the deceased, hence lack of corroborating evidence. 22.It was contended that the learned trial Judge also failed to appreciate the evidence adduced by the appellant in his defence. His conduct, it was submitted, was incompatible with that of a guilty person since he did not run away, but was found within his home. He did not refuse to assist or inform PW3 or PW4, who were people in authority, of his whereabouts or those of the deceased. Instead, he assisted them in searching for the deceased’s by informing them and taking them to where they camped in the forest. He was very helpful and his only offence, was that he was the last person to see the deceased. 23.According to the appellant, various theories may be extrapolated from the evidence adduced before the court. The deceased: may have intended to go home, but did not; may have gone home, then returned when the accused had left; may have been attacked by Somali herdsmen, who were also known to venture into the forest, or any other person who had entered into the forest for any number of reasons; or may not have left the forest at all, and that these other events may have occurred while he was there while his colleagues away. Accordingly, the conviction was based on speculation and conjecture rather than on facts and evidence. 24.Citing Sections 107, 108 and 109 of the Evidence Act, it was submitted that the prosecution failed to discharge its obligations since they failed to show how, where, when and why the appellant committed the alleged crime. Apart from assumptions and the fact that it was the appellant who may have been last seen with the deceased, no conclusive evidence was adduced to show that it was indeed the appellant who committed the crime he was convicted of. Instead, the doctrine of last seen with as deployed by the prosecution is raft with fault, and had the effect of shifting the evidentiary burden of proving the commission of the offence beyond reasonable doubt to the appellant to give a reasonable explanation of his innocence for a crime he did not commit contrary to the presumption of innocence which is a fundamental right under Article 50(2)(a) of the Constitution. 25.It was the appellant’s case that the only conclusion that can be arrived at is that the trial Judge erred in law, and in fact, by basing the conviction and sentence on assu mptions and uncorroborated circumstantial evidence. There were or are too many questions on the evidence adduced by the prosecution such that it cannot be inferred by any reasonable person that they have established the required evidentiary standard of beyond reasonable doubt. Both the trial Court and the prosecution, it was submitted, failed to show that there was an unlawful act or omission attributable to the appellant that led to the death of the deceased, short of which, this appellate Court would be within the exercise of the purview of its powers, to set aside the conviction of the trial Court, and acquit the appellant. We were urged to do so. 26.On behalf of the respondent, it was submitted that there was no doubt about the death of the deceased. At the autopsy witnessed by PW1 and PW2, it was concluded by the doctor that the cause of death was “asphyxia due to strangulation” based on the fact that a rope was found around the deceased’s neck, the deceased clothing tightly knotted around his remaining left forearm and a rope around his waist. Although the doctor’s opinion was that, due to the state of decomposition of the body, it was difficult to determine the exact cause of death, the respondent relied on the case of Ndungu v. Republic [1985] KLR 487, in which the case of R v. Cheya [1973] EA 500 was cited in highlighting the fact that in some cases death can be established without medical evidence. To the respondent, the fact that there were no blood stains on the deceased’s clothing ruled out the possibility that the deceased could have been eaten by wild animals or attacked by Somali herdsmen considering the fact that the deceased’s hands and neck were tied. In the respondent’s submission, based on the post mortem report, there was no doubt that the cause of death was unlawful. 27.As regards the identity of the appellant as one of the people who committed the unlawful act leading to the death of deceased, the respondent appreciated the fact that there was no eye witness to the murder and that the entire case for the prosecution was built upon circumstantial evidence. Citing this Court’s decision in R. v. Kipkering Arap Koske & Another, 16 EACA 135, it was submitted that there were several incriminating pieces of evidence pointing to the guilt of the appellant and his co-accused and these were: the fact that the appellant and his co accused were the last known persons to have seen the deceased alive having been left in the deceased’s comp[any by PW1; that on being asked the whereabouts of the deceased, the appellant told PW2 and the search party that the deceased had gone home to Kalwa; that the appellant did not give an explanation of when he last saw the deceased; and that the body of the deceased was discovered in the forest hidden in a thicket extensively decomposed indicating that it had been there for some days in a state which showed that he had been strangled. From those circumstances, the respondent submitted that the appellant had a clear opportunity to commit the crime. 28.It was noted that the appellant did not make any effort in tracing the deceased family to inform them that the deceased had been attacked by Somalis as the 1st accused had allegedly informed him. Instead, during the search, he tried to mislead them to another direction from where the body actually was. The respondent posed the question of what the deceased’s body was doing in the forest if he had gone home as the appellant said. It was submitted that there was nothing to point to any other person other than the appellant and his co-accused, who had common intention, as the persons who could explain his death and disappearance. In the respondent’s submission, both the appellant and Jonathan had a common intention. 29.As regards malice aforethought, the respondent cited Section 206 of the Penal Code which sets out the circumstances under which the intention to kill commonly referred to as the mens rea, murder shall be established and submitted, on the authority of the case of Mabel Kavati & Anr. v Republic [2014] eKLR Criminal Appeal No 509 of 2010, that malice aforethought can also be inferred from the acts of an accused person. It was noted that there was evidence of disagreements as testified by PW1 although the witness termed them minor quarrels over water. Be that as it may, it was contended, the appellant and Jonathan were the only persons who could explain the whereabouts of the deceased as they were the last known persons to have been with him alive and the appellant was also found to have been stealing charcoal belonging to the deceased. Their conduct, it was submitted, was inconsistent with that of innocent people. 30.According to the respondent, the only explanation was that the appellant strangled the deceased and dumped his body in the bush. He then took his charcoal with intention to sell it and moved on with his life thinking he could get away with it. After strangling the deceased, they left him in the bush with his hands tied to be devoured by hyenas. Considering the totality of the evidence adduced before the trial court, it was submitted that the prosecution case was proved beyond reasonable doubt in terms of the standard of proof envisaged under Section 107 of the Evidence Act. 31.Regarding the appellant’s defence, it was submitted that the learned Judge delivered a very elaborate judgment in which the appellant’s defence was summarized and analysed. However, the defence was a mere denial, that only dealt with how he was arrested without explaining how he parted company with the deceased. In this regard, the respondent relied on Section 111 of the Evidence Act and the case of Stephen Haruna v The Attorney General of the Federation [2012] LPELP 782 where the doctrine of last seen with was expounded on. 32.On the sentence, the respondent took the view that the case was most deserving of the death sentence because the deceased must have met his death in the cruellest manner and his body dumped like a dog. However, the learned Judge exercised his discretion after hearing his mitigation and meted a lenient sentence against him. We were urged not to interfere with the 25 years imprisonment. 33.In the respondent’s view, the circumstances prove that the case pointed unerringly to the appellant as the perpetrator of the offence of murder. There existed no room for co- existence of circumstances weakening that inference. We were urged to find that the appellant was rightfully convicted for the offence of murder contrary to Section 203 of the Penal Code. 34.We have considered the grounds of appeal and the evidence on record, the respective submissions filed by and on behalf of the appellant and by the respondent. Our mandate, sitting as a first appellate Court, is set out in Rule 31(1)(a) of the Rules of this Court, which provides as follows:“(1)On an appeal from a decision of a superior court acting in the exercise of its original jurisdiction, the Court shall have power—a.to re-appraise the evidence and to draw inferences of fact; …”’ 35.That this Court is enjoined, in a first appeal, to undertake a fresh and exhaustive examination and reach its own decision on the evidence on record, was affirmed by this Court’s predecessor in Okeno v Republic (1972) EA 32 in the following terms:“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusion. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.” 36.The offence of murder, with which the appellant was charged, is provided for in Section 203 of the Penal Code which states that:“Any person who, of malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder.” 37.The ingredients of the offence were stated by this Court in case of Chiragu & Another v Republic [2021] KECA 342 (KLR) where it held that:“The prosecution in an information of murder has the singular task of proving the following three ingredients in order to secure a conviction; that the death of the deceased occurred; that the death was caused by an unlawful act of commission or omission by the appellant and that the appellant had malice aforethought as he committed the said act.” 38.That the deceased died is not contested. In fact, both the prosecution and the defence agree on this fact. As regards the issue whether the deceased’s death was unlawful, we did not hear the appellant contest that fact. There was no evidence that the deceased was ailing. To the contrary, he was an active person who was, before his death, engaged in the activity of charcoal burning. From the state in which the body was found with a rope tight around his neck, his arm tied with a piece of cloth and a rope tied in his waist, coupled by the conclusion in the post mortem report that the probable cause of death was asphyxia resulting from strangulation, there can be no doubt as regards the unlawfulness of the deceased’s death. 39.The issue in contention was whether it was the appellant who caused the deceased’s death and if so, whether there was malice aforethought. It is not in doubt that the conviction of the appellant was based on circumstantial evidence. Whereas it is appreciated that a charge may be sustained based on circumstantial evidence, the courts have established a threshold to be met in order to base conviction thereon. In Sawe v Rep [2003] KLR 364 this Court held that.“In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt; Circumstantial evidence can be a basis of a conviction only if there is no other existing circumstances weakening the chain of circumstances relied on; The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused.” 40.This Court in Abanga alias Onyango v Rep CR. A No.32 of 1990 (UR) set out the principles to apply in order to determine whether the circumstantial evidence adduced in a case are sufficient to sustain a conviction in the following terms:“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.” 41.Therefore, for a trial court to find an accused person guilty, based on circumstantial evidence, the inculpatory facts must be incompatible with his innocence and be incapable of explanation upon any other hypothesis than that of his guilt. In this case the inculpatory facts relied upon in convicting the appellant and Jonathan were that they were the last people to be seen with the deceased alive. The principle of “last seen with” applies to our courts by virtue of Section 111(1) of the Evidence Act which provides that:“(1)When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact, especially within the knowledge of such person is upon him: Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether in cross-examination or otherwise, that such circumstances or facts exist Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt of the accused person in respect of that offence.” 42.This Court in the case of Kimani v Republic [2023] KECA 1390 (KLR) held that:“The doctrine of ‘last seen alive’ is based on circumstantial evidence where the law prescribes that the person last seen with the deceased before their death was responsible for his or her death and the accused is expected to provide an explanation as to what happened.” 43.And in the case of Moingo & Another v Republic [2022] KECA 6 (KLR) the Court reiterated that:“The fact that the deceased was last seen in the hands and restraint of the appellants, a prima facie case was established to require the appellants to give a reasonable explanation as to what befell him. Even though the onus of proof in criminal cases always rests squarely on the prosecution at all times, the Last Seen doctrine in the prosecution of murder or culpable homicide cases is that, where the deceased was last seen with the accused, there is a duty placed on the accused to give an explanation relating to how the deceased met his/or her death. In the absence of any explanation, the court is justified in drawing an inference that the accused killed the deceased).”See also Ngeno v Republic (Criminal Appeal 24 of 2016) [2024] KECA 757 (KLR). 44.In this case, PW1’s evidence was that in September 2015, together with the deceased, the appellant and Jonathan, they were in Madongoi forest burning charcoal. At one point he left the others and returned home to Kalwa to check on his expectant wife. While nothing serious happened during the time they spent in the forest, PW1 remembered one incident where the deceased disagreed with the appellant and Jonathan over the use of the scarce water in the area arising from the deceased’s denial of the use of that commodity by the other two. 45.While at home PW1 received a call from PW3, a relative from Madongoi, inquiring about the whereabouts of the deceased who he had not seen for some time, but had seen the appellant harvesting the deceased’s charcoal. It was then that PW1 decided to return to Madongoi and was confronted with the death of the deceased. The appellant then informed him that the deceased might have been killed by Jonathan who had relocated. 46.According to PW2, the last time he saw the deceased was on 12th October 2015 when he was at the river and the deceased was fetching water. For the next two days, he never saw him yet the deceased used to fetch water every day. When he met the appellant on 15th October 2015, the appellant informed him that the deceased had returned home to Kalwa. It was then that he relayed the information to PW1 who denied that the deceased was at home and promised to return to Madongoi. Since by 17th October 2015, PW1 had not returned, PW2 decided to go to the charcoal burning place where he found, the appellant, Jonathan and his son and one Mtemi Mgweso. He then reported the matter to the village elder who called for a search. Both the appellant and Jonathan did not however turn up. When eventually, the appellant was traced he informed the search party that he had been informed by Jonathan that the deceased had returned home after he was speared by the Somalis. During the search, the appellant tried to mislead the search party away from the direction where the body was recovered. The appellant divulged that Jonathan had gone to Boka. A report had earlier been made by PW2 that he saw the appellant harvesting the deceased’s charcoal. 47.From the foregoing, certain events come out. The appellant and Jonathan were the last people who could be accounted to have seen the deceased alive. When asked the whereabouts of the deceased, the appellant stated that he had gone home after being assaulted by the Somalis. There was no evidence that he relayed this information to anybody including PW2 who was residing not too far away from them and was related to the deceased. Later he changed his story saying that he could have been killed by Jonathan whom he knew had gone to Boka. He again did not disclose his suspicions to anyone before he was confronted. His conduct of trying to mislead the search party exposed him. Before then he had been seen harvesting the deceased’s charcoal. A consideration of the foregoing events, absent any explanation from the appellant, could only lead to the conclusion that the appellant was part of the scheme to kill or harm the deceased. 48.The manner in which the body was found ruled out any possibility of the deceased having been killed by animals.The appellant’s contention that the deceased had gone home was clearly untrue and was meant to mislead the team away for the forest where he knew the body of the deceased was. Instead of dealing with the said events, the appellant’s evidence did not challenge the prosecution’s evidence as he only dealt with the manner in which he was arrested. In Rafaeri Munya alias Rafaeri Kibuka v Reginam (1953) 20 EACA 226, the appellant there was convicted of murder and the case against him was mainly based on circumstantial evidence. In his sworn evidence at the trial, he made some denials which were obviously false. It was held that:“The force of suspicious circumstances is augmented where the person accused attempts no explanation of facts which he may reasonably be expected to be able and interested to explain; false, incredible or contradictory statements given by way of explanation, if disapproved or disbelieved become of substantive inculpatory effect”. 49.Explaining the above position, this Court in Abanga alias Onyango v Republic (supra) held that:“This case in our view does not in any way go against the basic legal principle that the burden of proving a criminal charge beyond doubt is solely and squarely upon the prosecution. But it`s a basic holding, namely that when an accused person tells an obvious and deliberate lie which is disproved or disbelieved, then such a lie is capable of providing corroboration to other independent available evidence.” 50.As regards malice aforethought, this Court (Kwach, Omolo & Bosire, JJA) in Dida Ali Mohmmed v R Nakuru Court of Appeal Criminal Appeal No. 178 of 2000 expressed itself as follows:“Mr Amingá for the appellant submitted before us that the learned trial Judge did not consider an important ingredient of motive for the killing. With due respect to him, and this he conceded when we pointed it out to him that motive is not a material element in establishing guilt. [See section 9(3) of the Penal Code]…But perhaps what Mr Amingá had in mind is the element of mens rea. Assuming that is so, we say this. The learned trial judge did not specifically advert to the issue. That indeed was an error. However, the evidence which he accepted clearly shows that the appellant killed the deceased with the necessary malice aforethought. Medical evidence shows that pressure was applied to the deceased’s neck which suffocated her. From that evidence, it is quite clear that by pressing against the deceased’s neck the appellant intended to cause the deceased grievous harm or death.” 51.In this case, the evidence shows that the deceased’s death was caused by strangulation. 52.We appreciate that there were some inconsistencies between the evidence of PW1 to PW4 but having subjected those inconsistencies to scrutiny, in the exercise of our duty as a first appellate court, we find them to be minor in nature and as was held by this Court in Willis Ochieng Odero v Republic [2006] eKLR, inconsistencies, per se, is not a ground for quashing the conviction in view of the provisions of Section 382 of the Criminal Procedure Code. As held by this Court in John Nyaga Njuki & Others v Republic Nakuru Criminal Appeal No. 160 of 2000 [2002] eKLR, where discrepancies in the evidence do not affect an otherwise proved case against the accused, a court is entitled to overlook those discrepancies and proceed to convict. 53.The statement by the appellant in his defence did not touch on the events that happened after PW1 left the forest. He did not explain the point at which he departed ways with the deceased. These were facts which were within his own knowledge. Instead, he restricted himself to what took place on his day of arrest. His defence, which cannot even be termed as a bare denial as it did not address the pertinent facts against him, was no defence. As was held by this Court in Isaac Njogu Gichiri v Republic [2010] eKLR:“With regard to failure by the superior court to give due consideration to the appellant’s defence we wish to state that his defence was a mere denial of the charge and the sequence of events of his arrest. The trial court stated after narrating it thus: ‘I find that the defence of the 5th accused is not true.’ We would not have expected the trial Magistrate to say more because the appellant said nothing about the events of 8th October, 1998. On this, the superior court stated: ‘The trial Magistrate was also right in rejecting the defence of the appellant in the circumstances.’ We agree with this confirmation.” 54.Having subjected the evidence to fresh scrutiny, we find that the decision of the learned trial Judge was based on sound evidence and we have no reason to interfere. As regards the sentence, 25 years for the offence of murder is, in our view lawful and reasonable and there is no reason for us to disturb it. However, the learned Judge did not allude to the period spent by the appellant while in custody. From the appellant’s own evidence and our own perusal of the record, the appellant was arrested on 25th October 2015. His conviction and sentence was on 28th February 2019. For that whole period the appellant was in custody. We direct, pursuant to section 333(2) of the Criminal Procedure Code, that the period be taken into account in computing his sentence. 55.Save for the foregoing, the appeal otherwise fails and is dismissed. 56.We so order. DATED AND DELIVERED AT NAIROBI THIS 31STDAY OF JULY, 2026.P. O. KIAGE……………………………..JUDGE OF APPEAL JAMILA MOHAMMED……………………………..JUDGE OF APPEALG. V. ODUNGA……………………………..JUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRAR