https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1620

Mochanga v Republic (Criminal Appeal E060 of 2023) [2026] KECA 1620 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1620 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E060 of 2023 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 31, 2026 Between Leshan Joshua Mochanga Appellant and Republic Respondent (Being an appeal against the Judgment of the High Court of Kenya at Kisii (Ougo, J.) dated 31st October, 2022 in HCCRA No. 46 of 2019) Judgment 1.The appellant, Leshan Joshua Mochanga, was charged with the offence of murder contrary to section 203 as read with Section 204 of the Penal Code. The particulars of the offence were that on 14th June, 2009 at Kerema Village in North Masaba Location, Masaba South Sub-County within Kisii County, the appellant murdered James Oigo Mochanga. He denied the charge. 2.The prosecution called four witnesses. A summary of the prosecution’s case was that the appellant and the deceased were brothers. On 14th June, 2009, the appellant got into a disagreement with the deceased because of beating the deceased’s children. The appellant stabbed the deceased with a spear, causing his instant death. The appellant disappeared for almost 10 years and was only arrested in 2019 when he returned home for a cleansing ceremony prepared by his family. 3.In his defence, the appellant’s sworn testimony was that he was in Mpeketoni on 14th June, 2009 when his brother was killed. He denied killing the deceased. 4.The High Court of Kenya at Kisii delivered judgment in the matter on 31st October, 2022, finding that the prosecution had proved the offence of murder beyond reasonable doubt. The appellant was accordingly convicted of the murder of the deceased and sentenced to 30 years' imprisonment. 5.In finding that the prosecution had established malice aforethought beyond reasonable doubt, the learned trial Judge (R. E. Ougo, J.) stated as follows;“18.The last issue for determination is whether the accused killed the deceased with malice aforethought. Section 206 of the Penal Code provides that malice aforethought includes-a.an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;b.knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;c.an intent to commit a felony;d.an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.19.Malice can be inferred from the weapon used and the place of injury. There was evidence that the accused person returned to the deceased’s home equipped with a spear. Pw2 testified that he also carried a bright torch. It can only be inferred that the accused person did not want to miss his target, the deceased. Pw2 testified that he shone the torch on the deceased and threw the spear piercing his neck. The accused person was then heard bragging immediately after killing the deceased that he had finished his enemy. The deceased had the intention to do grievous harm within the meaning of section 206 of the Penal Code.” 6.Dissatisfied with the trial court’s decision, the appellant lodged an appeal to this Court against both the conviction and sentence. The memorandum of appeal dated 4th May, 2026 sets out five grounds of appeal, which are;a.The trial court erred in law and fact by convicting the appellant based on the evidence of recognition of voice and walking style which was insufficient, unreliable and conducted under difficult conditions at 8.00pm at night while the attacker was wearing a mask thereby failing to exercise the requisite special caution required for identification evidence;b.The trial court erred by finding that the prosecution had proved its case to the required legal standard despite the absence of any direct eye witness who saw the attacker’s face or any forensic evidence of fingerprints or DNA linking the appellant to the alleged murder weapon which was a spear and the prosecution relied on impartial witnesses who were present at the homestead including the parents of the deceased and the appellant;c.The trial court erred in inferring malice aforethought solely from the nature of the weapon and injury but without sufficient evidence to prove the appellant’s specific intent to kill or cause grievous harm especially given the alleged preceding provocation involving a family disagreement;d.The 30 years’ sentence is manifestly excessive and inappropriate in the circumstances of the case where the prosecution’s case was entirely circumstantial and the deceased was the aggressor in the circumstances as the appellant’s mitigation that he was a first offender with young school going children not taken into consideration; ande.The trial court gave undue consideration on the pre- sentence report which was not evidence tested in cross-examination in circumstances that the offence occurred ten (10) years ago.The appellant prayed that the decision of the trial court be quashed and set aside and that he be set at liberty forthwith. In the alternative, he prayed that the appeal be allowed on the limb that he lacked malice aforethought in committing the offence, and he be convicted of the lesser offence of manslaughter. That this Court be pleased to resentence him. 7.This appeal came up for hearing on 13th May, 2026. The appellant appeared in person virtually from prison and was represented by learned counsel, Mr. Ogenga. The learned prosecution counsel, Mr. Okeyo, appeared for the respondent.The respondent conceded the appeal on conviction for murder and urged the Court to convict the appellant for the offence of manslaughter. Subsequently, this Court proceeded to hear the parties’ arguments on sentence for the offence of manslaughter. 8.Relying on the appellant’s submissions dated 4th May, 2026, Mr. Ogenga submitted that the learned trial Judge relied entirely on the pre-sentencing report that was adverse to the appellant. That the pre-sentencing report was neither tested on cross- examination nor was its veracity tested in sentencing the appellant to 30 years’ imprisonment. Counsel stated that there were multiple arguments between the deceased and the appellant, and that the appellant has always been remorseful for the offence, given that the deceased was his brother. That the death of the deceased was likely an accident. Counsel further noted that considering the appellant’s mitigation that he is a father of small children, a sentence of 30 years was excessive and harsh. He urged this Court to consider the directions on sentencing set out in Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] KESC 31 (KLR). 9.The respondent did not file any written submissions. Mr. Okeyo left it to the Court to decide on the appropriate sentence. 10.The principles guiding our jurisdiction as a first appellate court were set out in Okeno vs. Republic (1972) EA 32 as follows;An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala vs. R. (1957) EA. 570). 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 finding and conclusion; 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, see Peters vs. Sunday Post [1958] E.A 424.” 11.We have considered the appellant’s grounds of appeal and the submissions made for the parties. We sieve out the issues for determination to include whether we should uphold the parties’ agreement to reduce the charge and conviction for murder to manslaughter and whether the sentence of imprisonment for thirty (30) years was unlawful, harsh and excessive, in the circumstances. 12.The guiding principle is that when this Court considers upholding a murder conviction contrary to an agreement between the prosecution and the appellant to reduce the charge to manslaughter, the Court assesses if the evidence proves malice aforethought. Since plea agreements do not bind the Court, we will independently evaluate the circumstances of the killing. 13.Did the prosecution establish malice aforethought, beyond reasonable doubt? In finding that the prosecution had established malice aforethought beyond reasonable doubt, the trial court stated as follows;“18.The last issue for determination is whether the accused killed the deceased with malice aforethought. Section 206 of the Penal Code provides that malice aforethought includes-a.an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;b.knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;c.an intent to commit a felony;d.an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.19.Malice can be inferred from the weapon used and the place of injury. There was evidence that the accused person returned to the deceased’s home equipped with a spear. Pw2 testified that he also carried a bright torch. It can only be inferred that the accused person did not want to miss his target, the deceased. Pw2 testified that he shone the torch on the deceased and threw the spear piercing his neck. The accused person was then heard bragging immediately after killing the deceased that he had finished his enemy. The deceased had the intention to do grievous harm within the meaning of section 206 of the Penal Code.” 14.In urging us that malice aforethought had not been established, Mr. Okeyo and Mr. Ogenga agreeing, stated that the weapon the appellant had used to kill his brother in issue was never identified. However, PW2’s evidence was graphic and detailed and it was as follows : “It was on a Sunday 14th June 2009; the appellant had earlier in the day PW2 together with PW2’s brother Ben and sister Naomi; PW2’s mother reported the incident of the beating to the deceased on the evening of that Sunday; the appellant overheard the same while on the road; PW2 heard the appellant saying, “you are talking about me, wait for me in 5 minutes”; PW1 stated they ran into the house; further, ‘The accused shone a torch on my father. He shot him with a spear. He shot him on the left of the neck. I identify the spear. (MFI – I identified)”; the appellant ran off from the door and his father explained that the appellant had finished him on that day. 15.PW3 was Dr. Achoki Daniel who carried out the postmortem on the deceased on 22nd June, 2009 at Gucha Nursing Home. He testified that the deceased had a deep wound on the front aspect of left jaw bone and death was due to hemorrhage shock due to the excess bleeding. Further, there was maxillary atom that was cut causing a lot of bleeding. 16.PW4 was the investigating police officer. He confirmed that the spear which was produced was the weapon the appellant had used to kill his brother but no finger prints or DNA had been undertaken in relation to the weapon. 17.We have re-examined and re-evaluated the evidence. We are satisfied that the learned trial Judge did not err in finding that malice aforethought had been established beyond reasonable doubt per section 206 of the Penal Code. The appellant had an intention to cause the death of or to do grievous harm to his brother by deliberately designing to get the spear and proceeding to aim it at the brother’s head. He had knowledge that the act of aiming the spear at his brother would probably cause the death of or grievous harm to him. We find that the appellant unlawfully designed and acted to kill his brother with malice aforethought and we overrule the parties’ agreement to substitute the charge and conviction for the offence of murder with the one of manslaughter. 18.The second issue for our determination is whether the sentence of imprisonment for thirty (30) years was unlawful, harsh and excessive, in the circumstances. 19.The Supreme Court in Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] KESC 31 (KLR), stated that to avoid a lacuna, the following guidelines with regard to mitigating factors are applicable in a sentence for the conviction of a murder charge –a.the age of the offender;b.being a first offender;c.whether the offender pleaded guilty;d.character and record of the offender;e.commission of the offence in response to gender-based violence;f.the manner in which the offence was committed on the victim;g.the physical and the psychological effect of the offence on the victim’s family;h.remorsefulness of the offender;i.the possibility of reform and social re-adaptation of the offender; and,j.any other factor the court considers relevant. 20.The trial court’s ruling on sentence was dated and delivered on 1st December, 2022. The trial court considered the pre-sentence report dated 24th November, 2022 and which indicated as follows: the appellant was then 40 years old; he was a first offender; he was a nuisance in the community; he had been assaulting his parents and he had crushed his father’s legs who was walking on crutches; he had hit his mother with a brick stone on her chest and as a result her mother suffered a breathing problem; he had made the deceased’s widow to close her business due to his harassments; he was not remorseful at all and said that the deceased was born out of wedlock and that that the deceased’s widow did not respect him; he had failed to honour the amnesty given by the family and the community after he resurfaced from his hideout as he had failed to change his bad conduct; he was a bad person with bad records right from his parents and the community at large; and, his parents, siblings, deceased’s widow, and the local administration had all recommended a custodial sentence. The trial court considered that the mitigation advanced for the appellant was completely inconsistent with the presentence report. The trial court further considered that section 204 of the Penal Code prescribed death as the ultimate sentence for murder but in exercise of discretion imposed the sentence of 30 years imprisonment against the appellant. 21.We find that the trial court correctly exercised the discretion to sentence judiciously and in full satisfaction of the factors envisaged by the Supreme Court in Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] KESC 31 (KLR). We have particularly noted that the appellant went into a long hideout after committing the offence; the appellant unlawfully killed his brother after his unlawful action of beating the brother’s children upon no shown good reason; the character and record of the appellant shows he is a bad person who has no respect for other persons including his own parents whom he has unremorsefully continued to attack and injure; he has made life unbearable for the deceased’s family including resulting in closure of business by the deceased’s widow; he deliberately and violently murdered the deceased and in an abnormal manner congratulated himself in satisfaction for that extremely unlawful and painful action; and, the murder continues to be unbearable physically and psychologically to the deceased’s family, siblings, parents and the community at large. 22.In the premises, we confirm the conviction of the appellant for the offence of murder contrary to section 203 as read with section 204 of the Penal Code and the sentence of imprisonment for 30 years running effective the date of the sentence, 1st December, 2022. DATED AND DELIVERED AT KISUMU THIS 31ST DAY OF JULY, 2026.ASIKE-MAKHANDIA………………………………………………………………JUDGE OF APPEALE. C. MWITA………………………………………………………………JUDGE OF APPEALB. ONGAYA………………………………………………………………JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR