Leshian & another v Republic (Criminal Appeal E019 of 2022) [2026] KECA 1422 (KLR) (10 July 2026) (Judgment)

Leshian & another v Republic (Criminal Appeal E019 of 2022) [2026] KECA 1422 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1422 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E019 of 2022 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 10, 2026 Between Robinson Leshian 1st Appellant Benard Nyakundi Muchere 2nd Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Kisii (Ougo, J.) dated 18th December, 2020 in HCCRC No. 22 of 2019) Judgment 1.Robinson Lashan and Benard Nyakundi Muchere were arraigned before the High Court of Kenya at Kisii (the trial court) on the information charging them with murder contrary to section 203 read with section 204 of the Penal Code. Particulars of the information were that at an unknown time on 23rd May 2019 at Leman Bar and Restaurant in Kisii township, within Kisii Central Sub County, they murdered Dennis Omwansu Moreka (the deceased). 2.A brief summary of the prosecution’s case was that on 23rd May 2019 at 5. 00 a.m, the deceased left home without informing his wife Linet Bosibori Nyakundi, (PW1) where he was going only for PW1 to be informed later that day that deceased had been found dead. 3.On the morning of 23rd May 2019, Dennis Mayaka Nyakundi, (PW3) the deceased’s brother-in-law, while going about his business in Kisii town, heard of discovery of a body near St. Jude’s Building, rushed to the scene only to find that the body was that of his brother-in-law. Police officers came and took the body to the mortuary. 4.PW4 Amos Agusa (PW4) was at a boda boda stage near St. Jude’s building at about 7 am in the morning when he saw three people, including the 1st appellant, carrying a person who appeared drunk into a waiting vehicle before the vehicle drove off; Doctor Benjamin Maibile, (PW5) the pathologist, conducted a post mortem on 25th May 2019 and produced a post mortem report. Examination revealed blood from the nose and bruises on the left upper arm and back. On opening the body, there was blood in the chest cavity about 1 and half to 2 litres, the lungs had native contusions and the liver had signs that the deceased was a chronic drinker. He determined the cause of death to be chest injuries due to blunt force trauma. 5.Lawrence Ongera Ombui (PW6) the taxi driver who was requested to take the deceased’s body from St. Jude’s building to hospital, stated that the 1st appellant was one of the people who took the deceased’s body to the vehicle, he took the deceased to hospital but was pronounced dead on arrival. The body was later taken to the mortuary. 6.Evans Ngote Orero, (PW7) was at Lemana Bar and Restaurant having a drink and playing pool on the morning of 23rd May 2019, when suddenly a commotion ensured, someone fell down, he saw the 1st appellant pouring water on the person who was crying for help while the 2nd appellant assaulted him and a lady at the counter pleading with them not to kill the person. PW7 later left the bar and did not know what happened thereafter. 7.PW8. CPL Kenedy Nyangwa was called to the scene and they took the body to the mortuary. Witness statements were recorded and after investigation, the appellants were charged with the offence. 8.In his defence, the 1st appellant denied committing the offence, stated that he was on duty on 22nd May 2019 and left the following morning at 6.00. At 8am, he was called back to the place of work to assist in taking a sick person to hospital. On his part, the 2nd appellant stated that he left duty on 22nd May 2019 and went home. He went back to work on 24th May 2019 and that was when he learnt of the incident that had happened at the place of work. He was arrested when he went to the police station to check on the manager who had been arrested. 9.At the end of the trial, the trial court found that the prosecution had proved its case against the appellants, convicted them and sentenced each of them to serve twenty (20) years imprisonment. The appellants were dissatisfied with both conviction and the sentence and filed separate appeals but their advocate filed a joint memorandum of appeal dated 19th February 2026, and raised five grounds, contesting the findings of the trial court, which we need not reproduce in this judgment. They urged this Court to allow the appeal, quash the conviction and setting aside the sentence. In the alternative, they urged the Court to substitute the conviction for murder with a finding of manslaughter. 10.When this appeal came up for plenary hearing on 27th April 2026, Mr. Ogenga, learned counsel appeared for the appellants, while learned counsel Mr. Okeyo was present for the prosecution and upon the Court engaging both counsel on whether the circumstances under which the offence was committed pointed to a case of murder, Mr. Okeyo, learned prosecution counsel, graciously conceded to the appeal against conviction for murder. Mr. Ogenga, learned counsel for the appellants not objecting, the conviction for murder was set aside and substituted with a conviction on manslaughter. Counsel then addressed us on sentence only. 11.Mr. Ogenga argued that the sentence of twenty (20) years is excessive, taking into account the appellants’ mitigation before the trial court. Learned counsel further submitted that the appellants had been in prison since they were arrested in 2019 and urged us to reduce the sentence to the period served. 12.Mr. Okeyo, on his part, urged us not to interfere with the sentence. Learned prosecution counsel argued that the deceased was a young man aged 36 years whose career was abruptly cut short and it had not been shown that the deceased provoked the appellants as to lead to the unlawful act thus, he urged us not to interfere with the sentence. 13.We have carefully considered respective arguments by counsel for the parties on sentence. Sentence is a matter of discretion and the conditions upon which an appellate court may interfere with the sentence imposed by a trial court were set out in the case of Bernard Kimani Gacheru v. Republic [2002] eKLR where this Court held as follows:“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will note easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist” 14.In the case of Ogolla s/o Owuor v Republic, [1954] EACA 270, the predecessor to this Court stated that the appellate court does not alter a sentence unless the trial Judge acted upon wrong principles or overlooked some material factors. 15.The appellants before us were sentenced to 20 years imprisonment each upon being convicted for the offence of murder. The conviction for murder having, however, been reduced to manslaughter, the sentence of twenty (20) years is not, in our view, commensurate with the mitigating circumstances of this case. There is no evidence that the appellants’ action was premeditated, what provoked the situation, cause of the commotion and why the appellants acted as they did and the role the appellant may have played, if at all. Not that the appellants’ acts are excusable. 16.A perusal of the trial court’s record on sentencing, shows that the appellants gave mitigation through their counsel who stated that the 1st appellant was not married but was engaged and as a young man, desired to engage in meaningful life. The 2nd appellant told the trial court that he was married with young children who depended on him as the sole breadwinner. The prosecution counsel did not have records and the appellants must therefore be treated as first offenders. After considering the mitigation and noting that the deceased’s wife was still bitter for losing a husband, the trial court imposed a custodial sentence of twenty (20) years against each of the appellants. 17.For our part, taking into account the circumstances under which the offence was committed, the appellants’ mitigation and the fact that they are first offenders, we are of the view, that the sentence of twenty (20) years is excessive and is not commensurate with the objectives of sentencing. 18.Consequently, the appeal against sentence is allowed, the sentence of twenty (20) years against each of the appellants is hereby set aside and in place therefor, each appellant is sentenced to twelve (12) years imprisonment. 19.Although the appellants were granted bond, the record does not show that they were released. The sentence of twelve (12) years imprisonment for each appellant shall therefore run from 3rd June 2019 when they were first produced before the court. DATED AND DELIVERED AT KISUMU THIS 10TH 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 original.Deputy Registrar