Cheboi v Republic (Criminal Appeal E096 of 2021) [2026] KECA 934 (KLR) (15 May 2026) (Judgment)

Cheboi v Republic (Criminal Appeal E096 of 2021) [2026] KECA 934 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 934 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E096 of 2021 MS Asike-Makhandia, HA Omondi & LK Kimaru, JJA May 15, 2026 Between Matayo Wefula Cheboi Appellant and Republic Respondent (Being an appeal against the Judgment of the High Court of Kenya at Bugoma (Riech, J.) dated 2nd March 2021 in HCCRC No. 05 of 2017) Judgment 1.The appellant, Matayo Wefula Cheboi, was charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code. He was charged with the murder of one Mary Nanjala Matayo on the 20th day of February 2017 at Kisioyi Village, in Bumula Sub-County within Bungoma County. The appellant denied the charge. To prove its case, the prosecution called a total of 12 witnesses. Upon the trial court hearing the testimonies of the prosecution witnesses, the appellant was placed on his defence and thereafter, the court rendered its Judgment, holding that the charge had been proved beyond reasonable; and subsequently convicted and sentenced the appellant to serve thirty years (30) years imprisonment. Being aggrieved by the conviction and the sentence, the appellant instituted this appeal. 2.As the first appellate court, we must subject the evidence tendered in the trial court to thorough and exhaustive review, so as to reach our own independent conclusions in terms of Okeno v Republic [1973] EA 32, we therefore have a duty to set out the evidence tendered before the trial court which we do as hereunder. 3.The evidence presented at the trial through Protus Nyongesa Orido, PW1, was that on 20th February 2017 while inside his house at 7.00 a.m., he heard dogs barking outside while chasing someone. Upon getting out of the house, PW1 saw a person running away. He chased him and got hold of the person who identified himself as Matayo Wafula, son of Job Cheboi, the appellant herein. Shortly thereafter people arrived seemingly on the heels of the appellant whom they were pursuing. They informed PW1 that the appellant, alongside his father and mother had killed the deceased (who was the appellant’s grandmother). PW1 ordered the appellant to raise his hands, and noticed he had a blood-stained knife. The appellant was taken back to the home of the deceased where they confirmed that the deceased had been cut in the abdomen, with intestines protruding outside the body. Police officers were called to the scene and they re-arrested the appellant. 4.Gabriel Wekesa, testifying as PW2, was at his house when he heard screams emanating from the home of the deceased. In response, he went to the scene, where he found deceased inside her house, lying dead with the aforementioned injuries. He reported the matter to Mayanja police station. 5.Gabriel Wamba Werunga, PW3 who lived in the neighbourhood, was inside his house when he saw appellant's mother and sisters wailing saying deceased had died. He then saw the appellant under arrest. It was his evidence that he alongside other elders, had arbitrated a dispute between the appellant and deceased, when the deceased chased away the appellant from her house where he had been staying. At that time appellant had threatened that he will kill somebody. 6.The appellant’s step mother Ann Naliaka Cheboi, PW5 told the trial court that while inside her house at 7.00 p.m., she heard the appellant talking to someone. She got out and saw the appellant running away from the deceased’s house. She then went to the deceased’s house which was about 20 metres away; and found deceased lying down dead with injuries. She screamed and people came, but the crowd assumed that she and her husband were the ones who had inflicted the injuries on the deceased. Meanwhile the angry crowd on seeing the blood-stained knife which was said to have been used to inflict the injuries, got hold of it, and broke it. 7.In a statement under inquiry taken from the appellant by Chief Inspector of police, Abalae Wako, PW11, the appellant admitted strangling the deceased. Sergeant Harrison Gikandi Mugomo, PW12, accompanied other police officers to the scene of murder, where they found the deceased lying on the floor of the house, with a stab wound on the abdomen. He was given a blood-stained knife recovered from the appellant; and later on, obtained sample of blood of deceased, both of which he forwarded to Government analyst for DNA analysis. He later received a report which confirmed that blood samples on the knife belonged to the deceased. 8.In his sworn evidence, the appellant maintained that on the material date, he was at Mayanja stage, when he received information that his grandmother had died. He rushed home; and on arrival was informed that the body had already been taken by police. He went to the police station where he was arrested. The appellant denied earlier going to the home of deceased or even quarrelling with her. 9.In finding that the offence had been proved, the trial court considered the ingredients required to prove the offence of murder namely: the fact and cause of death; the unlawful act or omission causing the death; the existence of malice aforethought and positive identification of the accused as the person who inflicted the injury or committed the unlawful act or omission that caused the death of the deceased. With regard to death and its cause the learned judge took into account the evidence of PW1 PW2, PW3 and PW5 who all testified that the deceased had a stab wound on the abdomen leaving the intestines protruding outside her body. Doctor Harun Ombongi, PW4, who performed the post mortem on the body of the deceased on 24th February, 2017 indicated that the deceased had a penetrating abdominal injury wound measuring 6 cm by 15 cm deep, 4 bruises on the neck, internally there was a penetrating wound which had perforated the small glut and the aorta, leading to massive collection of blood in the plutonium cavity, leading to the conclusion that the cause of death was due to haemorrhagic shock as a result of the penetrating injury. 10.In finding that the unlawful act causing the death was as a result of the appellant’s actions, the learned judge referred to the testimony of PW12 to the effect that the recovered blood- stained knife recovered from the appellant and blood sample of deceased were taken to Government analyst whose outcome after analysis was that the blood stains on the knife matched that of the deceased; thereby confirming that the knife was the one used to stab the deceased. 11.With regard to malice aforethought, drawing from the definition in Section 206 of the Penal Code, the learned Judge held thus:“The person who inflicted the injuries on the deceased used a sharp object, a knife, stabbed her at vulnerable part of the body the abdomen and exerted such force and led the stab wound to go 15 cm deep in the abdomen. These circumstances show that the person intended to cause grievous harm or death of the deceased. These confirms the existence of the malice aforethought or mens reas (sic) to cause death.” 12.In determining that the appellant was the person who inflicted the fatal injuries, pointed out to the evidence presented by PW1 regarding his encounter with the appellant and the recovery of a blood-stained knife from him; the matching DNA outcome as contained in the government analysist’s report confirming that it was the same knife used in stabbing the deceased and the testimony of PW5 who saw the appellant running away from the deceased’s house. In rejecting the appellant’s defence that he was nowhere near the scene, the learned judge observed that the prosecution witnesses, particularly PW1, PW2 and PW5 all testified that the appellant was apprehended while running away from the scene; and eventually re-arrested by police officers at the scene. 13.This is the outcome that the appellant contests before this Court on grounds, that the learned trial Judge erred in law and in fact by: convicting the appellant for murder when the prosecution failed to prove the element of malice aforethought beyond reasonable doubt; relying on insufficient and inconsistent evidence of identification to convict the appellant; failing to adequately consider and appreciate the appellant's sworn defence statement, which raised reasonable doubt as to his guilt; by imposing an excessive sentence of thirty (30) years imprisonment, which failed to adequately take into account the mitigation factors presented. 14.At the hearing of the appeal, learned counsel Miss Lumallas appeared for the appellant, whilst Miss Mwaniki, learned prosecution counsel appeared for the respondent. 15.In arguing that the learned judge erred in convicting him for the offence of murder, yet the element of malice aforethought had not been established, the appellant contends that the evidence presented, through the post-mortem report attributing the death to haemorrhagic shock due to abdominal injury causing injury suggests that, while the injuries may have led to death, it may not conclusively prove an intent to kill or cause grievous bodily harm constituting murder. In this regard reference is made to the case of Roba Galma Wario v R Criminal Appeal [2015] eKLR, to contend that the evidence presented at worst ought to have pointed to manslaughter; and the court failed to consider the inconsistencies and contradictions in the testimonies of the prosecution witnesses. 16.In this regard, the appellant refers to the evidence of PW1 saying that he saw the appellant running in the company of his mother and father but never stated what happened with the two. That on the other hand PW2 testified that he found the deceased already dead after hearing screams from her home when he came. He argues that the witness did not see him attack the deceased and did not see any weapon. He also refers to the evidence of PW3 who testified that he saw PW5, the mother of the accused coming from the deceased's home crying and she told him that the deceased had been murdered, to argue that his evidence contradicted PW1’s evidence. 17.The appellant also points out that the evidence presented was that he was brought in by members of the public with a blood- stained knife; yet, the handling of the exhibit was questionable as police did not place the knife at the scene of the murder and on the accused. He also questions what happened to the other two people that PW10, Sergeant Richard Langat stated he booked in at the station in relation to the offence; and that subsequently only the appellant was charged. While multiple witnesses stated that the appellant was running away, the circumstances of his arrest and initial identification were varied, with PW1 stating that the father and mother were involved, and PW7 stating the appellant, his father Job Wafula, and mother Anna Naliaka were arrested. It is his contention that this indicates a potential for misidentification or group involvement not fully explored, casting doubt on the conclusive identification of the appellant as the singular perpetrator and if he indeed was involved in the crime charged. 18.With regard to the nature of injuries and cause of death, the evidence is faulted as being indirect and inconsistent that the prosecution did not challenge the defence advanced by the appellant, and simply left the court to interrogate such evidence. In reference to the evidence of PW11 who recorded the appellant's statement under inquiry, it was stated that the deceased was strangled, which contradicted what all the other prosecution witnesses said regarding the circumstances and cause of death. The appellant thus argues that PW1 never saw him attack the deceased; he reiterates that his testimony points out to being more than one assailant whose whereabouts were not disclosed nor was it mentioned whether they were ever interrogated on the murder and only PW5 recorded a statement. We are urged to take note that Anna Naliaka Cheboi, is the appellant’s step mother; and that the relationship makes it risky to rely on her statement.It is also submitted that PW2 explicitly stated he did not see the accused kill the deceased, and did not see any weapon, he only came at the scene when he heard screams and reported the matter to the police; that the evidence of PW3 contradicted both PW1 and PW2 as both stated only seeing PW5 at the scene of the murder while PW3 saw her and she was the one who informed him of the death of the deceased. 19.Arguing that malice aforethought was not established, the appellant submits that the evidence confirmed that the deceased and the appellant never had a history of animosity between themselves, nor did they socialize together, and that “this begs the question, "what then was the appellants malicious intention behind the murder of the deceased person?" This was a fact not proven by the prosecution as required. 20.The appellant maintains that in the present case, the prosecution's evidence was marred with inconsistencies, and lack of direct evidence linking him to the crime scene. Furthermore, that the High Court failed to adequately address the gaps in the chain of evidence. He laments that the murder weapon was handled and even broken by the mob and the police did not take time to analyze whether the crowd may have planted the murder weapon on him. 21.On sentence, we are urged to bear in mind that the same was punitive and to consider reducing it. 22.The respondent through its written submissions maintains that the death and the cause thereof was adequately established through the findings presented by PW4, who performed the post mortem on the body of the deceased and emphasis is laid on the findings that the injuries and cause of death were consistent with the testimonies of other prosecution witnesses that the injuries were inflicted by the appellant using a knife. The respondent further argues that actus reus was proved by the unlawful act or omission causing the death. 23.Drawing from the evidence of the witnesses who encountered the appellant as he fled from the scene, the recovery of what came to be concluded as the murder weapon, the DNA analysis, it is argued that the evidence confirmed that the knife was the one that was used by the appellant to stab the deceased. 24.As for the existence of malice aforethought, the respondent refers to the definition set out in Section 206 of the Penal Code and the pronouncements in Rex v Tubere s/o Ochen (1945) 12 EACA 63, where the Eastern Court of Appeal observed:“In determining existence or nonexistence of malice one has to look at the facts proving the weapon used, the manner in which it is used and part of the body injured."It is pointed out that the person who inflicted the injuries on the deceased used a sharp object, a knife to stab her at a vulnerable part of the body being the abdomen and exerted such force and led the stab wound to go 15 cm deep in the abdomen. These circumstances demonstrate that the existence of malice aforethought or mens rea to cause the death of the deceased, was adequately established.The respondent submits that some of the compelling evidence to infer malice aforethought is to be found in Ernest Asami Bwire Abanga alias Onyango v R (CACRA No. 32 of 1990) where the Court held:“the question of intention can be inferred from the true consequences of the unlawful acts or omission of the brutal killing, which was well planned and calculated to kill or to do grievous harm upon the deceased." 25.On the claim that the evidence relating to identification was insufficient and inconsistent to warrant a conviction, the respondent points out that from the evidence on record, PWI woke up and saw the dogs chasing someone; and confirmed that it was the appellant; that PW3 testified that the appellant and the deceased used to sleep in the same house; PW5 his step mother saw the appellant running away from the deceased's house; and members of the public apprehended the appellant and was brought him back to the home. The respondent contends that the appellant and most of the witnesses were people who hailed from the same locality, and knew each other well; therefore, there was no likelihood of a mistaken identity. In support of this argument, the respondent relies on the case of Wamunga vs R (1989) KLR 424 where the Court of Appeal held:“.... it is trite law that where the only evidence against a defendant is evidence on 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." 26.The respondent points out that evidence of recognition is more reliable in instances of identification, which has been well addressed in Leonard Kipkemoi vs R [2018] eKLR which observed that the factors to be considered with respect to recognition as set out in R vs Turnbull and Others (1976) 3 All ER 549 must always be borne in mind when a court is dealing with the question of identification, which includes how long the witness had the accused under observation; the distance; the lighting conditions, whether the observation was impeded in any way; whether the witness had ever seen the accused before and for how often; the time lapse between the original observation and the subsequent identification to the police; any material discrepancy between the description of the accused given to the police by the witness when first seen by him and his actual appearance In the above instance, it is safe to conclude that it was identification by recognition; of persons known to each other.With regard to the issue that the learned judge failed to adequately consider and appreciate the appellant's sworn defence statement, which raised reasonable doubt as to his guilt, it is pointed out that although the appellant raised a defence of alibi, that defence was made late in the day and an afterthought and thus, the trial judge was right in disregarding the same. The respondent submits that an alibi must be raised at the earliest opportunity in answer to the charge and once a defence of alibi is promptly and properly put up, the burden shifts to the prosecution to investigate it and rebut such evidence in order to prove the case against the accused beyond reasonable doubt. We are invited to consider the pronouncements in Karanja v Republic [1983] KLR 501, where 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." 27.The respondent submits that the alibi defence raised by the appellant was made late in the day and was therefore an afterthought and thus, the trial court judge was right in disregarding the same.In relation to the lament that the sentence of 30 years imprisonment is excessive sentence, and that the court failed to adequately take into account the mitigation factors presented, drawing from the case of Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2017) KESC 2 (KLR) (14 December 2017) (Judgment), (now referred to as Muruatetu I), the respondent argued that although the Supreme Court of Kenya held that the mandatory nature of the death sentence was unconstitutional, it clarified that the death sentence was valid in circumstances as a trial court shall deem fit to mete out. 28.In the present instance it is the respondent’s contention that the aggravating circumstances of the offence outweighed the mitigation the appellant offered. We are urged to take note that the appellant had not indicated the motive for committing the murder of his grandmother. Consequently, the respondent implores us to dismiss the appeal; uphold the conviction and the sentence imposed by the trial court. 29.Having carefully considered the grounds of appeal, the submissions by both parties, and the applicable law and our mandate, the following issues fall for our determination whether: the prosecution proved its case against the appellant beyond reasonable doubt; the trial court framed the correct issues for determination and properly evaluated the evidence; and whether the trial court misapplied the law, particularly in relation to identification and malice aforethought. On sentence the appellant’s counsel submitted that the sentence was punitive urged for its reduction. 30.With regard to 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.”There is no doubt therefore, that for a conviction for murder to stand, the prosecution must prove beyond reasonable doubt that the deceased died, establish the cause of death, 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. These elements must be sufficiently supported by evidence to eliminate any reasonable doubt concerning the accused's culpability. 31.In this appeal, the fact and cause of death is disputed, but the fact of death is undisputed. PW1 and PW2 testified to this fact. The postmortem report produced by PW4 confirmed that the deceased succumbed to massive intra-abdominal hemorrhage from a single penetrating injury to the abdomen, leading to aortic laceration, yet the appellant latches at a single paragraph in his statement of inquiry where he purportedly informed the police officer that he had strangled his grandmother. This position has no leg to stand upon as in any event, the appellant did not admit to making that statement, and he did not present any medical findings to suggest that the death could have been as a result of any other intervention, other than what the post mortem and prosecution witnesses’ evidence revealed! We are satisfied that the learned judge did not err in holding that the death of the deceased and the cause thereof was proved to the required standard. 32.The next issue is whether the appellant was responsible for the deceased’s death. The prosecution relied on the evidence of PW5, who placed the appellant at the scene, having seen him fleeing away from the deceased’s house soon after hearing sounds of distress therefrom. Then shortly there was the encounter with PW1 amid his flight, crowned with the offending weapon, which had all the tale tell signs of a wicked act; and the icing was made complete by the forensic report. 33.Admittedly, no witness saw the appellant inflict the fatal injuries, but the circumstantial evidence presented was compelling. The principle established in Republic v Kipkering Arap Koskei & Another [1949] 16 EACA 135 is directly applicable to the present case, where the court held that for circumstantial evidence to find a conviction, it must form a complete chain that leaves no reasonable doubt as to the accused’s guilt. Likewise, in the instant case, although no witness saw the appellant inflict the fatal injuries on the deceased, the circumstantial evidence presented was overwhelming and pointed exclusively to his culpability. There was no evidence suggesting the presence of any other person inside the deceased’s house, who could have inflicted those fatal injuries to the deceased. 34.It is our considered view, that the appellant’s flight from the scene immediately after the incident further strengthens the inference of his guilt. See Malowa v Republic [1980] KLR 110, where this Court held that:“The conduct of an accused person immediately after the commission of an offence may provide strong circumstantial evidence of guilt.”Obviously, the flight of the appellant from the scene of crime was not an innocent act. 35.On malice aforethought, Section 206 of the Penal Code gives various scenarios that amount to malice aforethought. 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. 36.Indeed, as cited by the respondent, in Republic v Tumbere 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 abdomen, of the deceased, a critical part of the body containing vital organs. The circumstances here indicate that the act was neither accidental nor impulsive but rather intentional and premeditated. The matter was not even helped by the appellant's immediate flight from the scene, as well as the immediate recovery of the offending weapon from his person. He was certainly aware of the gravity of his actions. 37.The alibi defence raised, was in our considered view rightfully dismissed as it was displaced by the strong prosecution’s evidence replete with witnesses who saw, recognised and apprehended the appellant. 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 circumstantial evidence was strong enough to displace it, which was the case here. See Bosco Ndungu Kinyanjui v Republic [2015] KECA 189 (KLR). 38.The final issue for determination in this appeal is whether the sentence of thirty (30) years’ imprisonment imposed upon the appellant was harsh and excessive in the circumstances. We paraphrase from the case of Frank Turo vs Republic, Criminal Appeal No. 157 of 2017 (unreported) (Judgment delivered on 6th October 2023), where this Court expressed itself forcefully about gender-based homicides and femicides thus:“However, we note that this was a horrific gender- based violence perpetrated on an elderly woman. The Appellant, attacked her inside her own house, at probably the space she felt most secure He then proceeded to mete out atavistic violence on her….”Our finding is that the appellant has not demonstrated to our satisfaction that the trial court overlooked material factors, or considered irrelevant matters. Our own reassessment, establishes no basis to warrant interfering with the sentence; the offence in question is of a grave and serious nature, and cannot fault the trial Court for imposing the sentence that it did. 39.The upshot is that we are satisfied that the appellant was properly convicted and sentenced by the trial court. The appeal on both conviction and sentence is hereby dismissed. DATED AND DELIVERED AT KISUMU THIS 15TH DAY OF MAY, 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