https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1161

Wafula v Republic (Criminal Appeal E097 of 2021) [2026] KECA 1161 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1161 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E097 of 2021 MS Asike-Makhandia, HA Omondi & LK Kimaru, JJA June 12, 2026 Between Martin Nyongesa Wafula Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Bungoma (Riech, J.) dated 29th October 2020 HCCRC No. 24 of 2017) Judgment 1.Martin Nyongesa Wafula, the appellant herein, was charged in Bungoma HCCC No. 24 of 2017 for the offence of Murder contrary to Section 203 as read with 204 of the Penal Code, that on the 24th day of July, 2017 at Lunao Village, Mitua Location in Bungoma North Sub-County within Bungoma County, he murdered Jacob Yesulie Shikuku. He denied the information, and upon the full trial process, he was convicted and sentenced to serve twenty-five (25) years imprisonment in a judgment delivered 29th October, 2020 (Riechi, J). He is aggrieved by the outcome and has filed this appeal. At the hearing of the appeal, the appellant is represented by learned Counsel Miss Lumallas, whilst learned Prosecution Counsel Mr. Minishi holds brief for Miss Nyambane for the respondent. 2.This being a first appeal, it is our duty to subject the entire evidence to a fresh and exhaustive evaluation, bearing in mind however, that we did not have the advantage of seeing or hearing the witnesses testify, while at the same time giving due allowance for the trial court’s findings. This was well set out in decision of the predecessor of this Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 as follows:“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanour, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanour which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.” 3.The evidence as presented at the trial by Petronila Namukuru, PW1, was that on 24th July 2017, at about 9.00pm, while in the company of her husband Geoffrey (PW2), her two brothers in law, Wicky and Jacob, the deceased, the appellant, who was known to her as a neighbour for the previous 10 years, Peter and 2 other girls, whose names she did not know, arrived at her house where she was selling chang'aa; a quarrel thereafter erupted between the appellant and the deceased, and the deceased asked whether they wanted to beat him, in the same manner they had previously done, resulting in losing his teeth. PW1 said she wanted to go to sleep, so the appellant and his company left, saying they were going to a funeral vigil. The deceased left the house half an hour later. 4.After a while PW1 heard the voice of her neighbour Mourine pleading, “Don’t beat him”; She stepped out of the house, only to see the deceased approaching, bleeding from the side of the chest, while announcing that the appellant had finished him. In re-examination, the witness clarified that upon getting out of the house, she saw Mourine with a torch; and the latter also informed her that the appellant had assaulted the deceased. He was rushed to hospital, but he succumbed. 5.Wycliffe Nyongesa Sabuni, PW2, a brother to the deceased, confirmed being inside PW1’s house, in the company of PW1, her husband and the deceased. He was consuming liquor, when the appellant and his companions arrived – they all appeared drunk, and Peter stirred up a quarrel with the deceased, and was joined by the appellant, before leaving. The deceased left thereafter, only to return shortly, unable to talk, but with injuries on the chest. He too heard Mourine saying that the appellant had fought the deceased, and that the deceased was injured. 6.Dr. Patrick Masita, PW4 who conducted the post mortem on the body of the deceased, established that he had a penetrating chest injury, slicing between the 7th and 8th ribs, injuring the left lung; and that the cause of death was massive haemothorax due to the chest injury. 7.Sakila Juma, testifying as PW5, lived in the neighbourhood, and was attracted by screams outside her house. She got out and saw the appellant stab the deceased, who in turn picked a stick and hit the appellant. She was able to see all that was happening at about 9.00pm, with the aid of moonlight. Her testimony was that the appellant stabbed the deceased at the hip, although on re-examination, she stated the stab was around the kidney area. 8.Peter Juma Nalianya, a boda boda rider, testifying as PW5, also confirmed that while consuming alcohol in PW1’s home, the appellant arrived with his companions, but when they wanted to leave, the deceased held on to one girl. This incensed the appellant; and a fist fight erupted; eventually the deceased picked a stick, which he used to strike the appellant, in return, the appellant got hold of a knife which one of the girls had, and he used it to stab the deceased. Both the appellant and the deceased were known to PW5, who described them as his friends. 9.On the material date at about 6.00pm, Miriam Wekesa, PW6, had earlier on been in the company of the appellant and two other female companions, and had gone to a drinking den to get change for some money they had, they were all drunk, she left briefly, and was on her way back to the drinking den at about 6.00pm. She heard screams, and the voice of the appellant saying, “You are beating Peter”. She saw the appellant produce a knife, which he used to stab the deceased. 10.PC John Kulecho, the investigating officer, PW7 who visited the scene of crime, established that a conflict arose between the appellant and the deceased, over a female named Mary Nelima. 11.In his sworn statement, the appellant claimed to have been at the construction site; and was not aware of the happenings of the date in question. He confirmed that he used to seduce Mary, but denied that he killed the deceased due to threatened amorous interests, and also insisted that he did not know PW6 at all. 12.The learned trial judge in his decision found that all the ingredients necessary to prove the offence of murder had been satisfied, pointing out that the fact and cause of death was not disputed; and was adequately confirmed by the post mortem report; The learned judge paid due regard to the alibi defence raised, acknowledging that once an accused person raises such a defence, and that the burden of proving that defence, does not lie on the person charged, save that such a defence must be raised at the earliest opportunity possible. That in this instance, the presence of the appellant was confirmed by persons who knew him very well, namely PW1 whose evidence as to how the appellant conducted himself, was the same evidence given by Pw4 Shakilla Juma, Pw5 Peter Juma, Pw6 Miriam Nelima Wekesa. The learned judge stated thus:“All these witnesses knew the accused well and their evidence that he was with the them is in my view credible. The evidence of these witnesses place accused at the scene where the offence occurred and therefore has displaced his alibi.” 13.On the question as to whether it was the appellant who inflicted the injuries from which the deceased succumbed, the learned judge observed that on arrival at the scene, PW4 saw the deceased pick a stick and hit the appellant, who in turn took a knife from Winnie, one of the girls in his company, and stabbed deceased near the hip, and as the deceased begun to scream, the appellant ran away; that PW4 was able to see the events using the light from the moonlight; that this evidence was echoed by PW6, Miriam Nelima who was also attracted by the screams and when she went there she saw the appellant remove a knife and stab the deceased on the ribs. That PW5 who was with the appellant and deceased, described how the appellant and the deceased started fighting over a girl who was with the appellant; how things quickly degenerated when the deceased picked a stick and hit the appellant, who then got a knife from one of the girls and stabbed the deceased on the abdomen. He was able to observe and see what happened with the help of the moonlight. 14.In rejecting the defence, learned judge quipped thus:“…. testified that there was a fight between the accused and deceased. They were outside and were able to see what happened by use of moonlight. The witnesses Pw4 Pw5 and Pw6 saw the accused stab the deceased on the material night. There was sufficient moonlight to enable them see what happened. They were consistent and credible witnesses…” 15.Before meting out the sentence, the trial court was informed that the appellant was a first offender, that his wife had abandoned the matrimonial home, leaving behind a young child who as a result, was living with the grandmother; that the appellant had been in prison custody throughout the trial, was remorseful, and had reformed. Acknowledging this plea in mitigation, the learned judge nonetheless pointed out that the offence was serious, and a life had been lost, hence the 25 years imprisonment. 16.The appellant being dissatisfied with the outcome, challenges the conviction and sentence in the Memorandum of Appeal dated 5th November 2025, on grounds that the learned trial Judge erred in law and fact: in finding that the prosecution proved the information of murder beyond reasonable doubt; by relying on contradictory and inconsistent evidence of prosecution witnesses regarding the circumstances of the stabbing, visibility at the scene, and the identification of the perpetrator; by dismissing the alibi defence without sufficient reason, contrary to the settled principle that the burden to disprove an alibi rest solely upon the prosecution; failed to adequately evaluate and reconcile material inconsistencies concerning visibility (moonlight versus torchlight) and the source of the murder weapon, leading to an unsafe conviction. 17.It was also contended that the learned trial Judge erred in law and fact by failing to draw an adverse inference against the prosecution for failing to call material witnesses, including Mary Nelima Wamalwa and Godfrey Alfayo Wanani, contrary to Section 143 of the Evidence Act; and that the sentence of twenty-five (25) years imprisonment was harsh and excessive in the circumstances, the court having failed to adequately consider the appellant's mitigation, status as a first offender, and the surrounding circumstances of the incident. 18.The appellant prays that the appeal be allowed; the conviction be quashed, the sentence be set aside; and the appellant be released forthwith. Alternatively, the appellant prays that the sentence be reviewed and reduced in view of the mitigating circumstances.That the sentence of twenty-five (25) years imprisonment was harsh and excessive in the circumstances, the court having failed to adequately consider the appellant's mitigation, status as a first offender, and the surrounding circumstances of the incident. 19.In the written submissions, the appellant contends that the conviction was unsafe, being based on contradictory, inconsistent, and unreliable evidence, and that the sentence of twenty-five (25) years imprisonment imposed was harsh, excessive, and disproportionate in the circumstances. 20.As regards whether the learned trial Judge erred in relying on contradictory and unreliable identification evidence; the appellant submits that the was a myriad of contradictions on visibility as the incident occurred at night. In this regard the appellant refers to the evidence of PW1, Petronila Namukuru who stated in cross-examination that: "there was no light outside" and that they only used a torch; that conversely, PW4, PW5, and PW6 testified that there was "bright moonlight" sufficient for identification. 21.The appellants lament that the learned Judge relied on the latter version without addressing this material inconsistency, yet visibility is critical in assessing the reliability of identification evidence. In this regard the appellants rely on the case of Wamunga v Republic [1989| KLR 424, where this Court, differently constituted, held:“It is trite law that where the only evidence against a defendant is identification by one or more witnesses, the court must examine such evidence with the greatest care." 22.We are also urged to consider Maitanyi v Republic [1986] KLR 198, which emphasized that the conditions for visibility must be carefully tested; failure to do so renders identification evidence unsafe; and that the inconsistency between "bright moonlight" and "no light outside" was not reconciled, rendering the alleged identification of the appellant unreliable and unsafe to sustain a conviction. 23.The appellants point out that there were also contradictions regarding the source of the murder weapon as the prosecution witnesses gave conflicting accounts regarding the origin and use of the alleged murder weapon. Reference is made to the evidence of PW4’s testimony that "a girl named Winnie removed a knife intending to stab someone, and the appellant disarmed her and then stabbed the deceased; yet PW5 claimed that the appellant "took a knife from a girl named Mary and stabbed the deceased."; whilst PW1 admitted she "did not see who stabbed Jacob." 24.Consequently, the appellants urge us to find the contradictions go to the core of the prosecution’s case drawing from the case of Ndungu Kimanyi v Republic [1979] KLR 282, where the Court of Appeal held that:“A witness upon whose evidence it is proposed to rely should not create the impression of untrustworthiness, and the evidence should be internally consistent."The trial court's failure to resolve these contradictions or give reasons for preferring one version over another was a misdirection in law. 25.The appellant further submits that he testified regarding his whereabouts on the material day and whereas the learned Judge acknowledged that an alibi does not shift the burden of proof, he failed to demonstrate how the prosecution disproved the appellant's alibi. Drawing from Wang'ombe v Republic [1980] KLR 149, it was held that:“The burden of disproving an alibi rest on the prosecution, and the accused need not establish that his alibi is true."The appellant submits that the learned Judge's failure to reconcile the inconsistent eyewitness testimony with the unshaken alibi rendered the conviction unsafe. 26.The other issue raised by the appellants is that the failure to call material witnesses prejudiced his right to a fair trial. In this regard it is pointed out that two critical witnesses - Mary Nelima Wamalwa and Godfrey Alfayo Wanani – were summoned but never testified; in particular, Mary was allegedly in possession of the murder weapon before the incident. That whereas under Section 143 of the Evidence Act, the prosecution is not bound to call a multitude of witnesses, it must nevertheless call those necessary to establish the charge. 27.In support of this proposition, the appellant relies on Bukenya & Others v Uganda [1972] EA 549, where the Court held:“The prosecution must make available all witnesses necessary to establish the truth, even if their evidence may be inconsistent with its case."It is thus argued that the trial court failed to draw an adverse inference from the prosecution's omission, thereby prejudicing the appellant's right to a fair trial under Article 50 of the Constitution. 28.Finally, on sentence, the appellant submits that he was sentenced to 25 years imprisonment, despite clear mitigating factors including being a first offender; remorseful; he had a young child dependent on him; and the incident arose from a drunken brawl rather than a premeditated act. 29.The appellant cites the case of Francis Karioko Muruatetu & Another v Republic [2017] eKLR, where the Supreme Court underscored the need for individualized sentencing that considers mitigating factors, offender circumstances, and proportionality. The appellant laments that the trial court failed to apply these principles and to take into account the period the he spent in custody, contrary to Section 333(2) of the Criminal Procedure Code. In the circumstances, he urges us to find that the sentence of 25 years was manifestly harsh and failed to reflect the rehabilitative and proportional objectives of punishment. And suggests a sentence not exceeding ten (10) years imprisonment be considered as appropriate. 30.He thus prays that the appeal be allowed; quashes the conviction and sets aside the sentence; and orders the Appellant's immediate release. Alternatively, and without prejudice to the foregoing, the appellant prays that this Court substitutes the conviction for manslaughter under Section 202 of the Penal Code and impose a reduced and proportionate sentence. 31.In opposing the appeal, the respondent identifies the following issues for determination:a.Whether identification was proper,b.whether the ingredients of the offence were proved beyond reasonable doubt,c.whether the trial court erred in law in disregarding the defence of alibi,d.whether the sentence meted out was within the law. 32.As regards proper identification, the respondent relies on the decision in Abdalla Bin Wendo v R [1953] 20 EACA 166 which stated that:“Subject to certain well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification especially when it is known that the conditions favouring correct identification were difficult.” 33.The respondent points out to the testimony of PW1 who saw the appellant enter into her house; and witnessed him quarrel with the deceased over one of the two girls; the evidence of PW2 which corroborated what PW1 stated; as well as the corroboration of the evidence by PW4, PW5 and PW6, all of which placed the appellant at the two places of encounter with the deceased, on the date in question. The respondent submits that on the date of the offence, the witnesses confirmed that there was moonlight; and PW1 on re-examination confirmed that one Mourine had a torch, which was corroborated by the evidence of PW2. The respondent reiterates that the appellant was positively identified; and the identification was not mere identification but recognition by the prosecution witnesses who were at the scene. 34.As to whether the evidence proved the ingredients of the offence, taking into account what constitutes malice aforethought under section 206 of the Penal Code, the respondent draws from Sango Mohamed Sango & another v Republic [2015] КЕСA 178 (KLR) where the court held as follows;On the question of malice aforethought, the court is entitled, in determining its presence or absence, to take into account among other things, factors such as the part of the body that was targeted, the type of weapon used, if any, and the type of injuries inflicted upon the deceased. 35.The respondent points out that in this case, the gory nature of the injuries inflicted upon the deceased which resulted in instant death were consistent with an assault intended to cause no less than death; that the injuries, inflicted with a dangerous weapon like a knife, is consistent with the unlawful killing of the deceased actuated by malice aforethought. 36.It is further submitted that in the instant case, PW4 Doctor Patrick Musita who performed a Post Mortem on the body of the deceased on external examination he stated that the deceased had abrasion injuries on the lower leg, penetrating chest injury 4cm between the 7th and 8th rib extending to the diaphragm with left lung injured. PW3 formed an opinion that the cause of death was bleeding as a result of the penetrating injury to the chest. The appellant disarmed a girl who had a knife and stabbed the deceased near the hip. The deceased started screaming and the appellant ran away. The injuries inflicted to the deceased and the fact that the appellant was quarrelling with the deceased over one of the girls clearly portray malice aforethought. That, PW4, PW5 and PW6 witnessed the appellant stab the deceased with a knife, thus the actus reus was proved beyond reasonable doubt. 37.With regard to the alibi defence, the respondent refers to the case of Victor Mwenda Mulinge v R, [2014] eKLR where this Court rendered itself thus on the issue of alibi:"It is trite law that the burden of proving the falsity, if at all, of an accused's defence of alibi lies on the prosecution; see Karanja v R, [1983] KLR 501 ... this Court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused's guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigation and thereby prevent any suggestion that the defence was an afterthought." 38.It is submitted that in the present appeal, that the question the alibi defence did not raise reasonable doubt in the prosecution case. Citing the case of R vs Sukha Singh s/o Wazir Singh & Others (1939) 6EACA 145 where the court held that:“if a person is accused of anything and his defence is an alibi, he should bring forward that alibi as soon as he can because, , firstly, if he does not bring it forward until months afterwards, there's a naturally a doubt as to whether the has not been preparing it in the interval, and secondly, if he brings it forward at the earliest possible moment, it will give the prosecution an opportunity of inquiring into that alibi and if they are satisfied as to its genuineness proceedings will be stopped." 39.The respondent argues that from the facts on record a strong and watertight case was made against the appellant. It is contended that the evidence of the prosecution witnesses corroborated each other and formed a clear and logical sequence of events establishing the appellant's guilt. That the alibi was raised late at the defence hearing, and as such, the prosecution did not have the opportunity to disapprove the same by leading evidence that the appellant was at the crime scene; and that his defence was a mere afterthought. 40.In regards to whether the sentence meted out was harsh and cruel in the circumstances, the respondent cites the case of Francis Karioko Muruatetu & Another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] eKLR where the Supreme Court of Kenya stated that mitigating factors ought to guide the courts in regard to sentence for the charge of murder; and that the exercise of the discretionary power of the court during sentencing is on a case-to-case basis. We are urged to embrace the recent pronouncement by this Court (differently constituted) in Nyeri, Criminal Appeal No. 22 of 2017, John Bundi Koome vs Republic delivered on 7th October, 2022, where the Court declined to depart from the decision of the subordinate court in their finding and held as follows;“In relation to sentence, the appellant feels that his mitigation was not given adequate weight. The trial court record shows that the appellant was a first offender, had two children, was an orphan and had two siblings under his care. The court considered that mitigation and found that due to the prevalence of such cases, and the offence carrying a mandatory sentence, the appellant deserved the life imprisonment. The sentence imposed on him was lawful and not unconstitutional as alleged. The sentence of life imprisonment was imposed upon the appellant by the trial magistrate who took into account the appellant's mitigation and the circumstances of the offence.Taking a cue from the foregoing, we are urged to find that the sentence meted out to the appellant by trial court was proper and lawful having been duly provided for in law. 41.Having carefully considered the grounds of appeal, the submissions by both parties, and the applicable law and our above mandate, the following issues fall for our determination:i.whether the prosecution proved its case against the appellant beyond reasonable doubt;ii.whether the trial court misapplied the law, particularly in relation to identification and malice aforethought;iii.and whether the sentence was too harsh under the circumstances 42.On the first issue, the appellant was convicted for murder under Section 203 of the Penal Code, which defines the offence as follows:“Any person who, with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder.”For a conviction on an information of murder to stand, the prosecution must prove beyond reasonable doubt that the deceased died, establish the cause thereof, demonstrate that the accused person committed the unlawful act leading to the death, and show that the accused in so doing acted with malice aforethought. See section 206 of the Penal Code. These elements must be sufficiently supported by evidence to eliminate any reasonable doubt concerning the accused's culpability. 43.In the present appeal, the fact and cause of death are undisputed; the deceased died, having succumbed to injuries inflicted on his chest. The post mortem report produced confirmed that the deceased succumbed to massive haemothorax from a single penetrating injury to the chest cavity, which grazed the left lung. The trial court was therefore right in holding that the death of the deceased and the cause thereof was proved to the required standard. 44.The next issue is whether the appellant was responsible for the deceased’s death. The prosecution relied on the evidence of PW1 and PW2, PW4, PW5 and PW6, who not only placed the appellant at the scene of crime, but saw the altercation and the infliction of the injury. As observed by the trial court, the trail of interaction and confrontation begun inside PW1’s house, the appellant was known to the witnesses, the interaction was not a fleeting glance, but lasted long enough to result in some verbal and physical exchange. The confrontation resumed outside the house under moonlight- we take note that the appellant did not deny that there was moonlight, and the prosecution witnesses who arrived at the scene, consistently referred to the moon illuminating to fighting duo, and that Mourine had a torch. 45.There is nothing to suggest mistaken identity as these were people who had been together, infact PW5 was in the company of the appellant, inside the drinking den, then they left together, and he witnessed the altercation. Second, the appellant was well known to PW1 therefore ruling out the possibility of mistaken identification. The appellant did not dispute the fact that he was well known to PW1. Indeed, this was a case of recognition as opposed to identification of a stranger in difficult circumstances., and we do not detect any error on the part of the trial court as regards the identity of the person who inflicted the fatal injury. 46.He also complained that crucial witnesses such as the deceased’s brother Geoffrey, and one Mourine were not called to testify. We are alive to the holding in the case of Bukenya & Others v Uganda (1972) EA 549 that the prosecution has a duty to call all witnesses necessary to establish the truth, and failure to do so entitles the court to draw adverse inference that such evidence would have been unfavourable to the prosecution case and perhaps in favour of the accused. The contention here is that the omission to call those key witnesses weakened the prosecution’s case and should have led to an acquittal of the appellant, particularly with regard to opportunity for identification. 47.Certainly there were two individuals mentioned, but who did not testify. Was that failure to call them fatal? Geoffrey was inside PW1’s house and it is not demonstrated what he could have said that would have been different from what all other witnesses consistently stated. Indeed, the submission is unfounded, as PW1 and PW2, PW5 and PW6 sufficiently identified the appellant at the scene of crime. The issue regarding opportunity for identification in so far as Mourine had a torch or not, also falls on a quicksand, as the identifying witnesses clearly stated they were able to see the duo with the aid of the moonlight. We draw from the case of Nganga v Republic [1981] KLR 483, that the prosecution was not obligated to call every possible witness, provided that the evidence presented was sufficient to sustain a conviction. In the circumstances of this case, the witnesses marshalled by the prosecution were adequate. 48.On the appellant’s alibi defence, we are satisfied that the trial court rightfully dismissed it as it was displaced by the strong prosecution’s evidence. The law requires that the prosecution disapprove an alibi beyond reasonable doubt, but where an alibi is weak and unsupported, a court may reject it. The trial court was not obligated to accept the alibi if the prosecution evidence was strong enough to displace it. See Bosco Ndungu Kinyanjui v Republic, [2015] KECA 189 (KLR). 49.The totality of the evidence clearly pointed to the appellant as the one who snuffed the life out of the deceased; the death and cause was adequately established through the findings presented in the post mortem on the body of the deceased and emphasis is laid on the findings that the injuries and cause of death consistent with the testimonies of other prosecution witnesses that the injuries were inflicted by the appellant using a knife. Indeed, actus reus was proved therefor. But was the element of mens rea satisfactorily established? Learned counsel Miss Lumalas who appeared for the appellant, submitted that this was manslaughter not murder. Section 206 of the Penal Code gives various scenarios that amount to malice aforethought, a key ingredient of murder. It is to this effect:Malice 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.For purposes of this appeal, however the scenario best suited are: an intention to cause death or grievous harm; knowledge that the act would probably result in death or grievous harm; or an intent to commit a felony. 50.In Republic v Tubere S/O Ochen (1945) 12 EACA 63, the court outlined several factors essential in determining malice aforethought, including the nature of the weapon used, the manner in which it was applied, the specific body part targeted, and the conduct of the accused before and after the incident. In the present case, the appellant wielded a knife, a dangerous weapon, and deliberately inflicted a single penetrating injury to the chest, a critical part of the body containing vital organs including the lungs. 51.The question which remains is whether this was a premeditated action or impulsive conduct, spurred by the raging sparks of amorous dominance, subsequent to perceived a real threat to the very object of interest. It is clear to us, from the evidence presented, that the appellant did not have a knife, rather, it was one of his female companions who had a knife, and as the fist fight degenerated, the deceased picked a stick and hit the appellant, who in retaliation, grabbed the knife from his companion and stabbed the deceased, resulting in the unlawful killing of the deceased. 52.In our considered view, the prevailing facts fits in well with the offence created under section 202 of the Penal Code, that the unlawful act, though not premeditated, and arising out of the heat of the moment, nonetheless robbed the life of another human being. Consequently, we are persuaded that the learned judge erred in convicting the appellant of murder, when the evidence demonstrated manslaughter. 53.Consequently, in compliance with the provisions of section 179 (1) of the Criminal Procedure Code, we allow the appeal, quash the conviction and set aside the sentence imposed. In lieu thereof, substitute with a conviction for the offence of Manslaughter contrary to section 202 as read with section 205 of the Penal Code. 54.The final issue for our determination is the sentence we should impose. We acknowledge that sentencing is a judicial function that must be exercised within the confines of the law, taking into account the gravity of the offence, the circumstances under which it was committed, and any mitigating or aggravating factors. The appellant’s counsel urges us to consider that the appellant recently lost both parents. Having reduced the offence to manslaughter, we take cognisance that under section 205 of the Penal Code, the punishment provided is that:Any person who commits the felony of manslaughter is liable to imprisonment for life. 55.The appellant has been in prison since 3rd August, 2017 when he was arraigned in court, and he remained in custody throughout the trial. He has expressed remorse even at the time of sentence; we take into consideration the circumstances surrounding the incident, and we are persuaded that the 25 year sentence was too harsh, We therefore set aside the sentence, and substitute it with a term of 10 years imprisonment which shall run from 3rd August 2017, when he was first arraigned in court. It is this limited extent that the appeal succeeds. DATED AND DELIVERED AT KISUMU THIS 12TH DAY OF JUNE, 2026.ASIKE-MAKHANDIA.....................................JUDGE OF APPEALH. A. OMONDI.....................................JUDGE OF APPEALL. KIMARU.....................................JUDGE OF APPEALI certify that this is a true copy of the original.Deputy Registrar