https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1406

Oloo v Republic (Criminal Appeal E285 of 2022) [2026] KECA 1406 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1406 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E285 of 2022 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 10, 2026 Between Maurice Odiwuor Oloo Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Siaya (R.E. Aburili J.) dated 14th March 2022inHCCRC No. 20 of 2018) Judgment 1.This is a first appeal from the judgment of the High Court of Kenya at Siaya (Aburili, J) dated 14th March 2022. The appellant who was the 2nd accused together with Collince Onyango Oduor who was the 1st accused, (the co-accused), were arraigned on the information charging them with murder contrary to section 203 as read with section 204 of the Penal Code. Particulars of the information were that on the 19th September 2018 between 8:30 p.m. and 9:00 p.m. at Sinapanga village in Bondo Sub-County within Siaya County, they murdered Paul Omondi Akal, (the deceased). When called upon to plead, they denied committing the offence setting the stage for the trial in which the prosecution called ten (10) witnesses. 2.The prosecution’s case was that on the 19th September 2019, at about 8pm, EAM (PW1), her children her children DO (PW2, (DOO) (PW4) and the deceased, her driver, had just arrived home from Akal market. She went to the bedroom and left PW2, PW4 and the deceased in the sitting room having dinner. She was counting money in the bedroom when she heard the children screaming that people had invaded them. PW1 heard the attackers asking where the deceased also known as “Daddy” was. PW1 locked the bedroom door but the attackers broke the door using metal bars, two of the attackers entered the bedroom which was lit by electric power and assaulted her demanding the money she had but she did not recognize the robbers. PW1 gave them Kshs. 130,000 and car keys. She heard the deceased screaming while being beaten by the attackers. 3.PW2, Dennis Odongo Onyango, PW1’s son was having dinner with his brother DOO (PW4) and the deceased when robbers forcibly entered the house and assaulted them while demanding money and phones. The deceased ran towards the kitchen where the robbers followed and killed him. 4.On his part, DOO(PW4), a minor testified that 4 robbers whose faces were not covered entered the house carrying metal bars, ordered him to lie face down and started assaulting PW2 and the deceased. He was able to observe what the attackers who included the appellant were doing since the house was lit by means of electric power. The attackers followed the deceased to the kitchen where they assaulted and killed him. 5.PW3, the deceased’s wife, PW5, Hezekiah Otieno Akala, the deceased’s uncle, and PW6 Lawrence Ogenga Akach, were later informed of the deceased’s death. PW6 went to Bondo Hospital mortuary and identified the deceased’s body for purposes of post- mortem. 6.PW9 CPL Evans Karanja was detailed to go to a robbery scene at PW1s house where he found the deceased lying in the kitchen with a blunt head injury; the bedroom door had been broken and the house ransacked. PW1 and her children had also been injured. PW1 informed PW9 that she suspected the co-accused, her former husband, for the incident due to earlier threats against the deceased dating back to May 2018 which had been reported on 15th May 2018 and 4th June 2018, respectively. 7.Following investigations, PW9 recovered a mobile phone and two SIM cards with IMEI numbers 351516093032159 and 35516093032167; obtained call data which showed that Airtel line 078xxxx26 had called the deceased on 15th May 2018. He also obtained call data for the deceased’s number 073xxxx54 and established that Airtel number 075xxxx03 associated with the appellant was used in the deceased’s phone shortly after the deceased’s death. The appellant was arrested within Kondele area while using the same number; an X-tigi phone was recovered from the appellant and produced in court; another phone was also recovered from one Sylvia Naomi Wafula, who informed the police that she picked it at the Kondele bar counter. The deceased’s phone which had dual IMEI numbers showed that one of its IMEI had been used by the appellant on 20th September 2019. The appellant’s Airtel line which was found to have been used in the phone that had been stolen from the deceased connected the appellant to the incident. PW9 arranged for an identification parade and PW4 identified the appellant. 8.PW10, Dr. Rita Aoko Opondo, produced the post-mortem report prepared by Dr. Willis Ochieng who conducted the post mortem on 25th September 2018; the report showed that the deceased had a deep cut wound on the frontal region of the head measuring 18 cm, mild subdural hematoma, and fracture of the frontal skull bone he opined that the cause of death was cardiorespiratory failure due to hemorrhagic shock, secondary to head injury. 9.When put on his defence, the appellant gave a sworn testimony; he denied committing the offence, stated that he did not know the deceased or the co-accused; stated that on the material night he was at home sleeping and although he admitted that PW4 identified him during an identification parade, he had complained about the conduct of the identification parade; maintained that no phone was recovered from him at the time of his arrest but he learnt about the phone while in remand. He further denied that the phone number 0751374703 was his and that he had never been to PW1’s house. 10.After considering the evidence by both the prosecution, the appellant and the co-accused, the trial court held that the prosecution had proved the case against the appellant beyond reasonable doubt, convicted him for the offence of murder and sentenced him to 35 years’ imprisonment. The co-accused was however acquitted. 11.The appellant was dissatisfied and filed this appeal against both conviction and sentence on the grounds that the trial court erred in; failing to properly analyze the evidence on record; failing to find that the prosecution did not discharge the burden of proof; relying on circumstantial evidence that did not meet the threshold; failing to find that the identification parade was not properly conducted and sentencing the appellant to 35 years without considering the period he was in custody as required by section 333 (2) of the Criminal Procedure Code. The appellant prayed that his appeal be allowed, the conviction be quashed and the sentence be set aside. 12.At plenary hearing, Mr. Kouko and Ms. Mumu, learned counsel appeared for the appellant and respondent respectively. Both counsel relied on their written submissions with brief oral highlights. 13.The core of the appellant’s submissions was that the prosecution did not prove its case beyond reasonable doubt. Mr. Kouko relied on the decisions in Anthony Ndegwa Ngari v Republic [2014] eKLR and Nyambura & Others v Republic [2001] eKLR for the proposition that to prove the offence of murder, the prosecution must lead evidence proving the ingredients of the offence beyond reasonable doubt, namely; the death of the deceased and the cause thereof; that the accused committed the unlawful act which caused the death and in doing so the accused had malice aforethought. 14.Mr. Kouko contended that the prosecution did not call crucial witnesses, especially a technician from Safaricom mobile service operator to shed light on whether there was communication between the appellant and any suspected perpetrators. Relying on the decision in Bukenya & Others v Uganda [1972] EA 549, counsel argued that the trial court should have drawn adverse inference against the prosecution that the evidence of the witness if called to testify would have been unfavourable to the prosecution’s case. 15.Regarding the appellant’s identification, counsel contended that the appellant was identified by a single witness (PW4), who in any case had seen the appellant in the police cells two days after his arrest before the identification parade thus, rendering the identification parade and the evidence of PW4 evidence worthless; further that the evidence of PW4 as the single identifying witness ought to have been treated with caution. Counsel relied on Roria v Republic [1967] EA 583 and Republic v Turnbull [1976] 3 All ER 549 for the submission that the surrounding circumstances under which the identification is made, should be closely examined. 16.Mr. Kouko again submitted that the appellant was convicted on the basis of circumstantial evidence which did not meet the threshold and relied on Sawe v Republic [2003] KLR 354, for the argument that to justify conviction on the basis of circumstantial evidence, the inference of guilt and the inculpatory facts must be incompatible with innocence and should be incapable of explanation upon any other reasonable hypothesis than that of guilt. Counsel urged us to allow the appeal, quash the conviction and set aside the sentence. 17.In opposition, Ms. Mumu submitted that circumstantial evidence can be used to convict and in some cases it constitutes the best evidence; that the trial court made its determination based on solid direct evidence of PW4 who was also a victim of the attack and who identified the appellant at the identification parade and his evidence was consistent and firm throughout even during cross-examination; that the evidence of PW4 was corroborated by circumstantial evidence since the appellant’s phone number was found to have been used in the deceased’s stolen phone on 20th September 2018 from 9:15 a.m. to 17:52 p.m. 18.On sentence, Ms. Mumu submitted that the sentence of 35 years’ imprisonment was lawful; the trial court considered the principles of sentencing and mitigation but the appellant having absconded court after being released on bond, he was denied the benefit of section 333(2) of the Criminal Procedure Code. 19.This being a first appeal, our duty is to re-evaluate the entire trial record, weigh conflicting evidence, and arrive at our own independent conclusions taking into account that we did not see the witnesses testify and give due allowance for that. (Okeno v Republic [1972] EA 32; Kiilu & another v Republic [2005] KECA 335 KLR. 20.We have re-considered, re-evaluated and re-analyzed the evidence on record and submissions by counsel for their respective positions in this appeal. Three issues fall for determination, namely; whether the prosecution proved the offence of murder against the appellant beyond reasonable doubt; whether the appellant was properly identified as the perpetrator of the offence and whether the sentence imposed was lawful and appropriate in the circumstances. 21.Section 203 of the Penal Code defines murder as “the unlawful causing of death of another with malice aforethought.” In that regard, the prosecution must prove three ingredients: the death of the deceased and its cause, that the death was unlawful and was caused by the accused, and that the accused had malice aforethought in committing the offence. (See Antony Ndegwa Ngari v Republic [2014] eKLR.) 22.In this appeal, the death of the deceased and the cause thereof was never in contention before the trial court or in this appeal. PW1, PW2 and PW4 were with the deceased and witnessed the assault that left him dead. PW3, PW5 and PW6 saw the deceased’s body and PW6 later identified the body for purposes of post mortem. PW9 was present when the post mortem was conducted while PW10 produced the post-mortem report prepared by Dr. Willis Ochieng who conducted the post mortem. The post mortem report confirmed that the deceased sustained a deep cut wound on the frontal region of the head; mild subdural hematoma and fracture of the frontal skull bone. The cause of death was cardiorespiratory failure due to hemorrhagic shock, secondary to head injury. This evidence conclusively proved the death of the deceased and the cause thereof. 23.On whether the appellant was responsible for the deceased’s death, the appellant was convicted mainly on the basis of both direct and circumstantial evidence of PW4 and PW9, respectively. PW4 witnessed four people enter the house; forced him to lie down and attacked PW2 and the deceased. PW4 was able to observe what the attackers were doing by the means of electric light; the attackers pursued the deceased to the kitchen and assaulted him to death. PW4 later identified the appellant at an identification parade and again in court. The witness was clear that the robbers’ faces were undisguised, the robbers spent considerable time with the witnesses while executing their mission and therefore PW4 had ample time to see them and indeed recognized the appellant. 24.PW4 testified and this is how the trial court described the testimony by PW4:"PW4 was consistent in his testimony that though he did not know the people who entered the house, he saw the 2nd accused. He stated that he lay down on his tummy and checked from the side and identified the attackers as people who wore dark clothing. He reiterated that he did not face his head down but placed his head in his hands in a manner that he was able to see the thugs and demonstrated the stance in court, on how he acted upon being confronted by the attackers. PW4 was firm in his testimony even in cross examination." (emphasis). 25.The trial court found the evidence by PW4 believable and despite being a minor, he was thorough even under pressure during cross examination that the appellant was one of the robbers; PW4 identified the appellant at an identification parade and was confident in court as he testified. The trial court observed PW4’s demeanor while he testified and believed in him. As the appellate court, we defer to the trial court’s finding of fact as it had the advantage of seeing PW4 testify. 26.We also note that the trial court warned itself on the dangers of relying on the evidence of a single identifying witness, but after doing so convicted the appellant as it satisfied that the evidence was solid and believable. A reevaluation of the evidence on record shows that the evidence of PW4 was clear that the appellant was one of the attackers and we have no reason to differ with the trial court’s conclusion regarding the evidence of PW4. 27.We appreciate as the trial court did, that the appellant’s conviction was not based on the evidence of PW4 alone. The evidence of PW4 was corroborated by the evidence of PW9 that the appellant’s Airtel line was found to have been used in the phone that was taken from the deceased on the night he was killed; the appellant used that phone within a short time after the deceased’s murder and just as the trial court observed and, we agree, the police had no reason to take the appellant’s sim card/mobile line, insert it in the phone the deceased had and blame it on the appellant. 28.The evidence on record further shows that upon PW9 recovering the phone and sim cards from the appellant, he prepared an inventory which the appellant signed, and the appellant’s Airtel line found to have been used in the phone the deceased had led to the arrest of the appellant at Kondele. 29.The appellant’s argument that he was at home on the material night raised what would amount to a defence of alibi, and an accused who raises the defence of alibi does not assume the responsibility of proving that his defense is true. The appellant’s defence of alibi was, however, disapproved by the evidence of PW4 that the appellant was present during the attack; forensic analysis of the appellant’s line put him at the scene of crime and, therefore, the trial court properly, in our view, rejected the appellant’s defence of alibi. 30.In the absence of plausible explanation how the deceased’s phone ended up in the appellant’s possession and how the appellant’s line was used in the phone the deceased had shortly after the murder, the forensic evidence corroborated the evidence of PW4, pointing to the appellant as the perpetrator of the deceased’s murder. 31.The appellant again argued that he was not properly identified in the identification parade because PW4 had earlier seen him in the police cells two days after his arrest thus, impugning the veracity of the identification parade. A review of the record shows that the identification parade was conducted as required and even though the appellant refused to sign the forms, that alone did not invalidate the identification parade. The appellant who was represented did not raise this issue before the trial court during the cross examination of PW9 who organized the identification parade. Neither was the claim that PW4 saw the appellant prior to the parade raised during cross examination of either PW4 or PW9. The appellant cannot therefore raise this issue on appeal. 32.Having revaluated the evidence and considered it afresh, we are satisfied that the appellant was properly identified and therefore, the prosecution proved that the appellant committed the unlawful act that caused the deceased’s death. 33.Before we leave this issue, we emphasize that the appellant was in a group and in terms section 21 of the Penal Code, the doctrine of common intention applied to him. Section 21 of the Penal code provides as follows:"When 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." 34.The appellant was in a group that had a pre-arranged plan and or unity of purpose to commit a crime; committed a crime the ultimate result of which was the deceased’s death. In that regard, the appellant was deemed to have committed the offence that was committed by any member of his group and must, therefore, be held liable for the actions of the group. 35.The appellant again argued, though belatedly, that the prosecution did not call a witness from Safaricom mobile service provider to testify and confirm that the appellant’s line was used in the deceased phone. We note that counsel representing the appellant did not object to PW9 producing the forensic report on the phones and sim cards; cross examined PW9 and did not raise any issue with regard to calling a witness from mobile service providers. This issue cannot therefore be raised for the first time on appeal. 36.We turn to consider whether the prosecution proved that the deceased’s murder was actuated by malice aforethought. Section 206 of the Penal Code defines malice aforethought to include, the intention to cause death or do grievous harm; knowledge that the act or omission would cause death or grievous harm whether the person is killed or not, accompanied by indifference whether death or grievous harm occurs or not, among other factors. Malice aforethought can also be inferred from the nature of the weapon used, part of the body targeted and the manner in which the weapon was used. (See Republic v Tubere S/O Ochen (1945) 12 EACA 63). 37.The post mortem report showed that the decease suffered a deep cut wound on the frontal region of the head; mild subdural hematoma and fracture of the frontal skull bone. The cause of death was cardiorespiratory failure due to hemorrhagic shock, secondary to head injury. These grave injuries could not give the deceased a surviving chance and, therefore, demonstrated malice aforethought. 38.On the last issue regarding sentence, it was argued that the trial court sentenced the appellant to 35 years but failed to consider the period he had been in custody as required by section 333 (2) of the Criminal Procedure Code. The respondent maintained that the sentence was lawful; the trial court considered the principles of sentencing and mitigation but the appellant having absconded while on bond, he was disentitled to the benefit of section 333(2) of the Criminal Procedure Code. 39.We appreciate that sentencing is at the discretion of the trial court; must depend on the facts of each case and the appellate court will note easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. (See Bernard Kimani Gacheru v Republic [2002] eKLR). 40.The appellant was sentenced to 35 years imprisonment for an offence punishable by death and the trial court considered the appellant’s mitigation before imposing the sentence. The sentence is appropriate and lawful in the circumstances of this case. We also note that the appellant was released on bond but he was arrested over a different case and placed in remanded but not because of the case, the subject of this appeal. The trial court did not therefore overlook section 333(2) of the Criminal Procedure Code. 41.The upshot is, this appeal fails and we dismiss it in its entirety. DATED AND DELIVERED AT KISUMU THIS 10TH 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 original.DEPUTY REGISTRAR.