https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1661

Vignel v Republic (Criminal Appeal E093 of 2023) [2026] KECA 1661 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1661 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E093 of 2023 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 31, 2026 Between Magero Ochieng Vignel Appellant and Republic Respondent (Being an appeal from the judgment of the High Court of Kenya at Homa- Bay (Kiarie Waweru Kiarie, J.) dated 3rd November, 2022inHCCRC No. 34 of 2020) Judgment 1.The appeal is against the conviction and sentence of the appellant, Magero Ochieng Vignel, by the High Court of Kenya at Homa Bay, (the trial court), in Criminal Case No. 34 of 2020. The appellant alongside his wife, Uzrah Anyango Ochieng, had faced an information charging them with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars were that on the night of 5th and 6th August 2020, at Andiwo village in Ndhiwa Sub-County within Homa Bay County, they jointly murdered Fauziah Marah (the deceased). They entered a plea of not guilty and soon thereafter their trial ensued in earnest. 2.The prosecution called a total of five witnesses. PW1 MAO, a minor, testified through her sister Dorothy Akoth Odhiambo, as an intermediary. She stated that she witnessed her father, the appellant, beating the deceased all over the body with a stick at their home. When exhausted the appellant placed the deceased on a chair to sleep but she did not wake up thereafter. The deceased’s mother, the co-accused was at the time in kitchen cooking but did nothing. 3.Pamela Anyango Ongweyo, PW2, a practitioner of alternative medicine testified that on the material night at about 1.30am, the appellant called her and informed her that the deceased was unwell and wanted her to attend to her. She however told him to bring the deceased to her house as she was suffering from painful leg. Later, the appellant brought the deceased on a motorcycle ridden by a Mr. Ombati. She however noted that the deceased was already dead. She then escorted the appellant back to his house where she saw broken sticks therein. Out of nowhere, the appellant asked her whether beating someone could lead to death. Dr. Peter Ogola, PW3, a medical practitioner, conducted the post-mortem on the body of the deceased. He found abrasions on the right shoulder and chest, bleeding beneath the scalp, and brain contusion. He concluded that the cause of death was severe head injury resulting from blunt trauma. 4.Hellen Adoyo Okinyi, PW4, a neighbour knew the deceased but did not know the circumstances of her death. She nonetheless confirmed that she went to the home after the death and identified the appellant in court as the father of the deceased. Lastly, PW5, PC Somson Cheruiyot, the investigating officer, testified that in the course of the investigations, he established that the appellant had beaten the deceased in the presence of the co-accused. He confirmed that the deceased was aged about three and a half years and died the same night of the assault. 5.Placed on his defence, the appellant, elected to give sworn testimony.He stated that while having supper as a family, he noticed that the deceased was weak and eating slowly. After she was done, he asked her to go and relieve herself. She overstayed and when the appellant went to check on her, he found that she had defecated on herself. He immediately opted to take her to PW2 for medical attention but upon arrival PW2 declared that the deceased had already passed on. He otherwise denied assaulting the deceased to death. DW2 Uzrah Anyango Ochieng, the appellant’s wife and co-accused, mother of the deceased supported the appellant’s defence. She however introduced the angle that the deceased while playing earlier in the day had fallen from a bench and injured herself. Otherwise, the appellant never assaulted the deceased. 6.In its judgment, the trial court held that the evidence did not point to the involvement of the appellant’s co-accused, that is, Uzrah Anyango Ochieng in the commission of the offence. That if anything it tended to exonerate her. Accordingly, it acquitted her of the information but found the appellant guilty of the less offence of manslaughter contrary section 202 as read with section 205 of the Penal Code on account of lack of malice aforethought. It held that although malice aforethought under section 206 of the Penal Code was not established to sustain a conviction for murder, the evidence demonstrated that the appellant inflicted excessive corporal punishment upon the deceased, which directly caused her death. The medical evidence confirmed that the cause of death was severe head injury consistent with blunt force trauma, and the testimonies of PW1, PW2, PW3 and PW5 placed the appellant at the scene and linked him to the fatal injuries. The appellant’s defence was rejected as inconsistent and contradicted by the medical findings. Consequently, the trial court convicted the appellant of manslaughter and sentenced him to 15 years’ imprisonment. 7.Aggrieved by the aforesaid conviction and sentence, the appellant filed the instant appeal on grounds that the trial court erred in law and fact in: its evaluation of the medical evidence and relying on the evidence of a minor given through an intermediary with poorly conducted voire dire examination; disregarding his alibi defence; basing his conviction on uncorroborated and poorly investigated case; not calling crucial witnesses to testify; and in not properly evaluating the evidence of PW1, PW2, and PW3. 8.When the appeal was called out for plenary hearing, the appellant was represented by Ms. Omollo, learned counsel while Ms. Oduor, learned prosecution counsel appeared for the respondent. Counsel elected to rely entirely on their respective written submissions that they had filed and exchanged in urging and opposing the appeal. 9.Counsel for the appellant reiterated that though the appellant was initially charged with murder but after full trial was convicted of a lesser offence of manslaughter, the conviction ought to be quashed as there was no evidence to sustain such conviction. 10.Counsel submitted that the trial court erred in its evaluation of the medical evidence. That the post-mortem report by Dr. Peter Ogola (PW3) indicated abrasions and bleeding beneath the scalp, with the cause of death being severe head injury. However, the same witness conceded that such injuries could also result from an accidental fall. Counsel argued that this weakened the prosecution’s case and created doubt that ought to have been resolved in favour of the appellant. 11.Further, counsel contended that the trial court improperly relied on the evidence of PW1, a minor who testified through an intermediary and as such, was biased and coached by the PW1 to falsely implicate the appellant. That the reception of PW1’s evidence through an intermediary offended section 127(2) of the Evidence Act, and the voire dire examination conducted did not adequately test the child’s obligation to speak the truth. Counsel stressed that the evidence of a child of tender years required corroboration under section 124 of the Evidence Act, which was lacking in this case. 12.Counsel further submitted that the evidence of PW2 was inconsistent and unreliable as she claimed that the appellant brought the deceased to her house at 3 a.m. when she was already dead, and yet in another breath she admitted to not seeing the deceased at all. She also alleged finding broken sticks in the appellant’s house but did not specify their nature, nor were they produced in court as exhibits. Counsel argued that no fingerprints were lifted from the alleged sticks to connect them to the appellant. 13.Counsel submitted that the evidence of PW5 was similarly contradictory. While he alleged that the appellant beat the deceased, he later admitted that the co-accused had told him that the appellant did not beat the deceased. He also introduced claims that the deceased cried whenever she saw her father, which were not corroborated by any other witness. 14.Counsel further submitted that crucial witnesses such as a Mr.Ombati the motorcycle rider who ferried the deceased and the appellant to the house of PW2 was not called to testify. This left gaps in the prosecution case which should have been resolved in favour of the appellant. Counsel argued that though the defence advanced by the appellant was cogent and unchallenged, the trial court disregarded it. It was contended that the trial court failed to appreciate that the appellant had no motive to harm his own child. On the contrary, the evidence showed that he attempted to seek medical help from PW2 to save her life. 15.In conclusion, counsel urged this Court to find that the prosecution failed to prove its case beyond reasonable doubt and allow the appeal as prayed. 16.In opposing the appeal counsel for the respondent submitted that the appellant was properly convicted and sentenced for the offence of manslaughter and therefore the appellant’s grounds of appeal were without merit. She argued that the prosecution evidence was credible, consistent, and well corroborated. PW1, testified that she saw the appellant beat her severally with a cane, after which she never woke up again. PW2 confirmed that the appellant brought the deceased to her house at night, already dead, and that when she went to the appellant’s house, she saw broken sticks. PW3, conducted the post-mortem and concluded that the cause of death was severe head injury. Counsel emphasized that this evidence squarely placed the appellant at the scene of crime and linked him to the fatal assault. 17.It was further submitted that the appellant owed the deceased, being his child, a duty of care. Instead, he resorted to excessive punishment which resulted in her untimely death. The incident was spontaneous, not premeditated, and therefore the trial court correctly found that malice aforethought, one of the key ingredients of murder was not proved, but nonetheless the ingredients of manslaughter were satisfied. 18.On the defence case, counsel submitted that it amounted to mere denials which did not displace the strong prosecution’s case. It was in any event, inconsistent and failed to explain the fatal injuries sustained by the deceased whilst in his custody. 19.Regarding sentence, counsel submitted that the 15 years imprisonment imposed was even lenient given that section 202 of the Penal Code prescribes life imprisonment for manslaughter as the ultimate sentence. She argued that the trial court exercised sentencing discretion judiciously and applied the correct sentencing principles. There was no miscarriage of justice, and therefore no basis for the interference with the sentence imposed. 20.This being a first appeal, we are enjoined to discharge our mandate as circumscribed in law by subjecting the entire record to a fresh and exhaustive scrutiny. In doing so, we are obligated to re-appraise, re-analyze and re-evaluate the evidence adduced before the trial court, and to weigh it against the applicable statutory, constitutional and jurisprudential standards before arriving at our own independent conclusions. We are nonetheless mindful of the settled principle that the trial court, having had the singular advantage of seeing and hearing the witnesses testify is best placed to assess their demeanor and credibility, and due allowance must be made for that advantage even as we exercise our appellate mandate. See Dickson Mwangi Munene & another v Republic [2014] eKLR. 21.We have duly reviewed the record, the rival submissions, authorities cited and the law. In our view, the only broad issue for determination in this appeal is whether the appellant’s conviction and sentence for manslaughter should stand. 22.The initial information facing the appellant was murder. To prove such an information, the prosecution had to establish the fact and cause of death of the deceased; that the death was as a result of an unlawful act of commission or omission on the part of the appellant; and, that such unlawful act was actuated by malice aforethought. Indeed in Roba Galma Wario v Republic [2015] eKLR, those ingredients were condensed as follows:“For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant; and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional.” 23.As to the death of the deceased and the cause thereof, this was really not in dispute. Indeed, the appellant conceded that the deceased died in his hands. He was even heard by PW2 querying whether beating someone can cause death. Both PW1 and PW2 too, saw the body of the deceased. Besides medical evidence by PW3 confirmed that the cause of death was severe head injury consistent with blunt force trauma. Was the appellant the one who caused the death? The evidence of PW1, a minor testifying through an intermediary, was that she saw her father, (the appellant) beat the deceased mercilessly with a cane all over her body, after which he placed her on a chair and she never woke up again. PW2 testified that the appellant brought the deceased to her house at night, already dead, and that she thereafter saw broken sticks in his house thereby corroborating the evidence of PW1. The appellant did not dispute this fact. Indeed, and as already stated he was even heard querying whether beating someone could lead to death. In essence the appellant admits that he was with the deceased shortly before she met her death. 24.The issue then is whether to believe the testimony of PW1 and PW2 or the appellant’s alibi. PW1 will have no reason to falsely testify against her father given her tender age. Much as the appellant claimed that the deceased died from natural causes, and that he sought help from a traditional healer and his wife supported this version, stating that the child convulsed and deteriorated rapidly following a fall from a bench earlier in the day; however, the trial court found this explanation inconsistent and contradicted by the medical evidence. 25.Much as the appellant claimed that PW1 could have been couched to falsely testify against him, he never advanced this theory when he cross- examined PW1 or indeed other witnesses. Obviously, the defence of the appellant in the light of the foregoing cannot hold water. 26.Given all the foregoing, could the trial court have entered a conviction on the information preferred? It must be appreciated from the outset that the appellant was the father of the deceased, a child of tender years, and the prosecution bore the burden of proving that the unlawful act was accompanied by the requisite mental element for the trial court to return a guilty verdict for murder. Section 203 of the Penal Code defines murder as the unlawful killing of another with malice aforethought, while section 206(a) and (b) sets out some the circumstances from which malice aforethought may be inferred. This Court in Jennifer Wanjiru Ng’ang’a v Republic [2018] eKLR, stated:“For a homicide to constitute the offence of murder under section 203 as read with 204 of the Penal Code, the offender must be shown to have caused the death by an unlawful act or omission and “of malice aforethought.” 27.Similarly, in Republic v Tubere s/o Ochen [1945] 12 EACA 63, the court laid down the factors to be considered in determining malice aforethought, including the nature of the weapon used, the manner of its use, the part of the body targeted, the severity of the injuries, and the conduct of the accused before, during, and after the incident. 28.Applying these considerations to the present case, the trial court correctly found that although the appellant inflicted excessive punishment on the deceased, there was no evidence of premeditation or intention to cause death or grievous harm. The weapon used was a stick and when the deceased exhibited serious injuries, the appellant immediately sought the intervention of a traditional healer to salvage the situation. This to us is not the conduct of a person determined to kill. The act was spontaneous and not accompanied by any malice aforethought therefor. Consequently, the offence of murder was not proved, but the unlawful killing satisfied the elements of manslaughter under section 202 of the Penal Code. 29.The appellant complained that the voire dire examination conducted in respect of PW1 was poorly conducted and therefore her evidence ought to have been disregarded. On this we need to underscore that there exists no rigid formula or codified procedure for the conduct of a voire dire examination by a trial court. What is paramount is that the inquiry undertaken by the trial court must be sufficient to ascertain whether the minor witness comprehends the duty of speaking the truth and, where a sworn statement is contemplated, whether the child appreciates the solemnity of an oath. The determination is reached on the basis of the answers elicited during the voire dire examination. In the present case, the trial court meticulously questioned PW1 to gauge her appreciation of truth-telling. From her responses, the court was satisfied that she possessed adequate intelligence to testify, though not under oath, and accordingly directed that her evidence be received under affirmation. The choice of affirmation was informed by her disclosure that she did not attend Sunday School, which rendered it inappropriate to administer an oath. 30.We emphasize further that the trial court posed questions to PW1 regarding her name, school, class, teacher’s identity and gender, her attendance at Sunday School, and whether she would tell the truth or lie. She answered intelligently and forthrightly. We are therefore unable to agree with the appellant's assertion that the mere omission to establish her understanding of an oath rendered the voire dire defective. In any event, such omission is not fatal to the prosecution’s case if there is other compelling evidence. 31.We have said enough to demonstrate that the voire dire examination met the legal threshold and did not contravene the manner in which the evidence of PW1 was received. Further, even if the same was not properly conducted, that does not per se vitiate the entire prosecution case as long as there is other independent and corroborative evidence. Indeed, there was such evidence. See Maripett Loonkomok v Republic [2015]. 32.This Court has consistently held that sentencing falls within the purview and discretion of the trial court, subject to the statutory underpinning. In Ogolla s/o Owuor v Republic [1954] EACA 270, the Court of appeal for Eastern Africa stated that an appellate court will not interfere with sentence imposed by the trial court unless the trial court acted on wrong principles, overlooked material factors, or imposed a sentence that is manifestly excessive. This principle was reaffirmed in Bernard Kimani Gacheru v Republic [2002] eKLR, where the Court emphasized that sentencing is a matter of discretion and interference is only warranted where that discretion is improperly exercised. 33.Further, in Francis Karioko Muruatetu & Another v Republic [2017] eKLR, the Supreme Court underscored the importance of individualized sentencing, proportionality, and consideration of mitigating circumstances. Applying these principles, the sentence of fifteen years imposed on the appellant was in our view well within the statutory limits, proportionate to the gravity of the offence, and cannot be said to be manifestly excessive. We have no doubt at all that the trial court exercised its discretion in sentencing judiciously and any intervention by this Court is therefore uncalled for. 34.Accordingly, we find no basis to interfere with either the conviction of the appellant for manslaughter or the sentence of 15 years’ imprisonment imposed on the appellant by the trial court. The appeal is devoid of merit and is hereby dismissed in its entirety. DATED AND DELIVERED AT KISUMU THIS 31ST DAY OF JULY, 2026.ASIKE-MAKHANDIAJUDGE OF APPEAL..................................E.C. MWITAJUDGE OF APPEAL..................................B. ONGAYAJUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR