https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1311

Longurangule & another v Republic (Criminal Appeal E174 of 2022) [2026] KECA 1311 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1311 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Criminal Appeal E174 of 2022 PM Gachoka, WK Korir & L Ndolo, JJA July 10, 2026 Between Yego Longurangule 1st Appellant Samson Lodomo 2nd Appellant and Republic Respondent (Appeal from the judgment of the High Court at Kapenguria (R. Sitati, J) delivered on 9th December 2018 in HCCR. No 4 of 2017) Judgment 1.The 1st and 2nd appellants, Yego Longurangule (Yego) and Samson Lodomo (Samson) were charged with the offence of murder, contrary to section 203 as read with section 204 of the Penal Code, particulars being that on 21st December 2016, at about 2030 hours at Murwangor village in Kapulio Location within Kacheliba Division of North Pokot Sub- County in West Pokot County, jointly with another not before court, they murdered Siwyapat Lowyapeta. 2.The appellants were tried and convicted by the High Court at Kapenguria (R. Sitati, J) and were each sentenced to 30 years’ imprisonment. Being dissatisfied with the judgment of the High Court, they have come to this Court on a first appeal. 3.In his grounds of appeal, the 1st appellant claims that he was not accorded a fair trial, that there was no sufficient evidence to support the conviction, that there was no medical evidence to prove death, and that the trial court did not comply with sections 144(1) and 150 of the Criminal Procedure Code. On his part, the 2nd appellant added that he had been misled by the Probation Officer to admit guilt. 4.The offence of murder is defined in section 203 of the Penal Code as follows:203.Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. 5.The ingredients of the offence of murder were summarised in the case of Anthony Ndegwa Ngari vs. Republic [2014] eKLR as follows:a.proof and cause of death of the deceased;b.that the accused committed the unlawful act which caused the death of the deceased; andc.that the accused had malice aforethought. 6.With regard to malice aforethought, section 206 of the Penal Code provides as follows:206.Malice aforethoughtMalice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances-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. 7.This being a first appeal, we will tread on the track laid out in the oft-cited case of Okeno vs. Republic [1972] EA 32 where the duty of a first appellate court was set out 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 v R [1957] EA 366) and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M. Ruwala v 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 findings and conclusions. It must make its own findings and draw its own conclusions. Only then can it decide whether the…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…” 8.At the trial, the prosecution called eight (8) witnesses. Julius Siywat, a son of the deceased, testified as PW1. He told the trial court that on 21st December 2016 at around 8:30 pm, he was at home when the 1st and 2nd appellants, together with one Mukereng Korir, came to the homestead while drunk and armed with clubs. PW1 added that the three, who were well known to him and whom he recognised by the light of a hurricane lamp, stated that they were on a mission to kill someone; they claimed that the deceased was a witch. 9.As PW1 ran to call for help, the three physically assaulted the deceased and torched his house. The house was reduced to ashes and the body of the deceased was burnt beyond recognition, making it impossible for a post mortem examination to be conducted. A certificate of death, showing the cause of death of the deceased as house fire, was produced. 10.Chepochemosoi Siywat (PW2), the widow of the deceased, testified that she was at home with the deceased when the 1st and 2nd appellants, whom she described as her children, arrived at the home armed. She recognised the assailants by the light of a hurricane lamp and saw them torch the house before she fled in fear. 11.Stephen Siywat (PW3) another son of the deceased and brother to PW1, testified that he received a telephone call from his brother informing him that their father had been killed and his body burnt beyond recognition. Upon arriving home, PW3 confirmed that the body of the deceased had been burnt beyond recognition and that it was not possible to conduct a post mortem examination. 12.Margaret Julius (PW4), the daughter in law of the deceased, was at home when the 1st and 2nd appellants arrived, armed with clubs and stones. They forced her to open the door while declaring that someone would die. She recognised them by their voice and the light of a hurricane lamp. The 2nd appellant roughed her up and when she fell, he kicked her. They asked her for a matchbox and when they did not get it the 1st appellant took the hurricane lamp from PW4 and threw it at the grass thatched roof of the house of the deceased. The witness saw the house catch fire before fleeing in fear. 13.PW5, Joseph Lopere a neighbour of the deceased, met PW4 as she fled while begging him to go and rescue her two children whom she had left behind in the house of the deceased. Lopere managed to rescue the children who were asleep. He told the trial court that he found the assailants at the scene, armed with stones and clubs. 14.PW6 was Peter Atondongorok, chairman of the local ‘nyumba kumi’ security group. He testified that he was called at night by a Kenya Police Reservist and notified of the incident at the home of the deceased. He called the police and proceeded to the scene where he confirmed that the deceased had been killed and his body burnt beyond recognition. 15.PW7, No. 211729 IP Anthony Omusugu was, at the material time, attached at Kanyerus Police Post in West Pokot County. He received a call from the ‘nyumba kumi’ chairman and proceeded to the scene alongside other officers. PW8 CI Linus Kimoboi, Officer Commanding Kacheliba Police Station took over the scene of crime from PW7. 16.When put on their defence, the appellants gave sworn statements without calling any witnesses. 17.From the record, it is evident that the conviction of the appellants was based largely on their identification as the assailants that ended the life of the deceased. We are aware of the safeguards to be applied in such a case. In the persuasive decision in R vs. Turnbull [1976] 3 ALL ER 551 Lord Widgery CJ cautioned that:“the quality of identification evidence is critical, if the quality is good and remains good at the close of the defence case, the danger of mistaken identification is lessened, but the poorer the quality, the greater the danger.” 18.In its decision in Wamunga vs. Republic [1989] KECA 47 this Court stated the following:“Where the only evidence against a defendant is evidence of identification or recognition a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction.” 19.In distinguishing recognition from identification, Madan JA in Anjononi & Others vs. Republic [1980] KLR stated thus:“…recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.” 20.From the evidence adduced before the trial court, which we have considered, re-evaluated and summarised, the attack on the deceased was witnessed first-hand by at least three witnesses (PW1, PW2 and PW4). The three eyewitnesses affirmed that the appellants were their close relatives and were well known to them. Indeed, they were able to recognise not only their faces but also their voices. 21.Further, PW1 and PW4 testified having heard the appellants declare that someone would die that night. Additionally, there is evidence that the assailants were armed with clubs and stones, that they asked for a matchbox and when they did not get it, they snatched a lit hurricane lamp from PW4, which they used to torch the house of the deceased. 22.When put on their defence, the appellants, while admitting having been at the scene on the fateful night of 21st December 2016, ostensibly looking for traditional brew, denied attacking the deceased or torching his house. They even suggested that PW1 may have been responsible for the attack, in retaliation for the death of his cow, which they alleged had been bewitched by the deceased. The tale peddled by the appellants was however not supported by any independent evidence and we, like the trial court, reject it. 23.In the circumstances we, are satisfied that the appellants were positively identified as the assailants who attacked the deceased and torched his house, burning his body beyond recognition. They came to the home of the deceased armed and making a declaration that they were ready to kill. The appellants are people who were well known to PW1, PW2, and PW4. The conditions for their identification were good as there was a lamp, and they engaged the witnesses, saying that they would kill someone. Their voices were known to the witnesses, so there is no doubt that they are the ones who attacked the deceased and burned his house. 24.In our view, there was a common intention on the part of the appellants. In this regard, we draw guidance from section 21 of the Penal Code, which provides as follows:21.Common intentionWhen two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence. 25.The concept of common intention was extrapolated in Solomon Munga vs. Republic [1965] EA 363 in the following terms:“If several persons combine for an unlawful purpose and one of them kills a man, it is murder in all who are present whether they fatally aided or abated or not, provided that the death was caused by an act of someone of the party in the course of the endeavour to effect the common object of the assembly.” 26.In Republic vs Tabulayenka s/o Kirya [1943] EACA the East African Court of Appeal held that a common intention may be inferred from the presence of the assailants at the scene or their actions or omission to dissociate themselves from the unlawful act. 27.The 1st appellant claims that he was not accorded a fair trial. However, looking at the record, both appellants were present throughout the trial and all the witnesses were cross- examined by the appellants’ counsel. At the close of the prosecution case, the learned trial Judge considered the evidence and being satisfied that the appellants had a case to answer, put them on their defence. The appellants gave sworn evidence and at no time did they claim that they were not accorded a fair trial. 28.The other ground is that the death was not proved by medical evidence. This is because there was no post-mortem examination as the body of the deceased had been burnt beyond recognition. The question then is whether the absence of medical evidence in the form of a post-mortem report was fatal to the prosecution case. We think not; while medical evidence would be desirable, if it cannot be availed because the murder rendered the remains incapable of providing a profile for an autopsy, that cannot be a ground to let the assailant walk free. This was the holding in Wahih & Another vs. Uganda [1968] EA 278 where the East African Court of Appeal held that:“…such evidence is always desirable and usually essential, but there are exceptions. There have, for example, been general cases…where persons have been convicted of murder, although the body of the victim was never found and the case against the appellant depended entirely on circumstantial evidence. There may be other cases where medical evidence is lacking but where there is direct evidence of an assault so violent that it could not but have caused immediate death.” 29.The appeal in our hands falls in the latter category. As we have already demonstrated, there was direct evidence not only placing the appellants at the scene, but also linking them with the concerted action of assaulting the deceased and literally setting him on fire. Lack of medical evidence did not, in any way, shake the prosecution case. Indeed, the appellants themselves agree that they were at the scene and that the deceased died but deny that they were responsible for the death. So, the question of the death was not in dispute throughout the trial. The question was who was responsible. 30.The appellants further argue that the trial court failed to comply with the provisions of sections 114(1) and 150 of the Criminal Procedure Code. These provisions deal with summoning and examination of witnesses. The appellants did not indicate any witness they would have wished to examine but was not availed. Moreover, as held in Mwangi vs. Republic [1984] KLR 595:“Whether a witness should be called by the prosecution is a matter within the discretion of the prosecution and the court will not interfere with that discretion unless it may be shown that the prosecution was influenced by some oblique motive.” 31.The 2nd appellant claimed that he was misled by the Probation Officer to admit to the death, but this claim was not substantiated. In any event, the trial court reached its verdict before calling for a probation report as part of the pre- sentencing process. This ground is therefore also without basis. 32.We think we have said enough to demonstrate that the grounds of appeal on the conviction have no merit and that the conviction of the appellants was safe. 33.Finally, we will address the issue of the sentence that was imposed. The learned trial Judge, in exercise of her discretion, sentenced each appellant to serve 30 years’ imprisonment. 34.It is trite that sentencing is an exercise of discretion by the trial court. An appellate court will not easily interfere with this discretion unless the sentence meted out by the trial court is manifestly excessive or the trial court was clearly misguided (see Bernard Kimani Gacheru vs. Republic [2002] eKLR). 35.The record shows that in sentencing the appellants, the learned trial Judge took into account the aggravating circumstances in which the offence was committed. The deceased met his death in a most cruel manner and the 30 years’ imprisonment imposed on each appellant cannot be said to be excessive. We are satisfied that the trial court properly exercised its discretion and we decline the invitation to interfere with the sentence. 36.Ultimately, this appeal fails on both conviction and sentence and is dismissed in its entirety. DATED AND DELIVERED AT ELDORET THIS 10TH DAY OF JULY, 2026.M. GACHOKA C.Arb, FCIArb....................................JUDGE OF APPEALW. KORIR....................................JUDGE OF APPEALL.M. NDOLO....................................JUDGE OF APPEALI certify that this is a true copy of the original.Deputy Registrar