https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1624

Mband & another v Republic (Criminal Appeal E294 of 2022) [2026] KECA 1624 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1624 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E294 of 2022 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 31, 2026 Between Maurice Owino Mband 1st Appellant Benard Otieno Mband 2nd Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Siaya (Aburili, J) dated 10th May, 2022 in HCCRC No. E012 of 2021) Judgment 1.This appeal arises from a tragic family dispute that escalated into violence and culminated in the death of one George Ouma Mband. An apt reflection comes from F. Scott Fitzgerald, in his personal essays and letters, who wrote:“Family quarrels are bitter things. They don’t go according to any rules. They’re not like aches or wounds; they’re more like splits in the skin that won’t heal because there’s not enough material.” 2.The appellants, Maurice Owino Mband and Benard Otieno Mband, who are biological brothers, were arraigned before the High Court of Kenya at Siaya on an information charging them with murder contrary to section 203 as read with section 204 of the Penal Code. It was alleged that on 14th April 2022, at Lolwe village, Yiro sub-location, South Ugunja Location, Ugunja Sub-County within Siaya County, they murdered their biological brother, George Ouma Mband, (the deceased). 3.The troubling facts of this case are that the deceased and the appellants as already stated, were blood brothers, and the dispute revolved around a family land. What began as an altercation, insults and stone-throwing between the said brothers quickly descended and escalated into a violent confrontation involving sharp weapons with the end game being the death of the deceased. 4.The prosecution evidence unfolded in a sequence that painted a grim picture of a family quarrel turned fatal. PW1, Dr. Paul Oloo, a medical practitioner, conducted the postmortem examination on the deceased’s body and concluded that the cause of death was multiple stab wounds inflicted by sharp weapons. PW2, Jane Agolla Mung’oma to the trio, recounted how the 2nd appellant confronted the deceased demanding the title deed of their late father’s land, while throwing stones at him. He later stabbed him with a knife, whereas the 1st appellant whilst armed with a panga, cut the deceased on the head. As if that was not enough, the 1st appellant turned on her, assaulted her and broke her cellphone phone.After forcefully getting the title deed from the deceased’s house, the appellants fled the scene. PW3, Consolata Aoko Ouma the deceased’s wife, corroborated PW2’s account, stating that 1st appellant cut the deceased on the head with a panga, while 2nd appellant stabbed him twice on the neck and once on the ribs. 5.She also added that the 1st appellant destroyed her mother-in-law’s cellphone and that 2nd appellant threatened her with a knife while demanding the title deed. PW4, David Omondi Mband, another brother to both the appellants and the deceased, on the material day heard screams and rushed to the scene, where he saw 1st appellant cut the deceased on the head with a panga and 2nd appellant stab him on the back and neck while demanding the title deed. He admitted to breaking the cupboard in the deceased’s house to retrieve the title deed and handing it to the 2nd appellant. He also confirmed that 1st appellant assaulted their mother and himself with a metal bar. PW5, George Obiero Kodia, a cousin to both the deceased and appellants testified that on the night of 15th April 2022, the appellants went to his house seeking refuge, and 1st appellant admitted to him that they had problems with their deceased brother and were looking for a place to hide and sleep. He accommodated them overnight but midway locked them inside the house and contacted police officers from the local police station who subsequently caused their arrest and on completion of the investigations arraigned them before the High Court of Kenya at Siaya to face the information aforesaid. PW6 and PW7, confirmed the recovery of the deceased’s body, the conduct of the postmortem, and the chain of events leading to the appellants’ arrest. 6.In their defence, the appellants denied the information. The 1st appellant, maintained that he did not assault the deceased but only intervened to separate a fight between the 2nd appellant and the deceased. He insisted that his role was limited to calming the situation and that he never wielded any weapon against the deceased. On his part, the 2nd appellant, admitted that indeed, there had been a physical confrontation between himself and the deceased, but he categorically denied that the 1st appellant was involved in the assault. He portrayed the incident as a mere quarrel that escalated into a fight between him and the deceased alone, thereby seeking to absolve the 1st appellant of his involvement in the fatal fight. 7.After a full consideration of the evidence adduced, the trial court reached the conclusion that the prosecution had discharged its burden of proving the information beyond reasonable doubt. It observed that the testimonies of PW2, PW3, and PW4 consistently placed both appellants at the scene of crime, each actively participating in the assault of the deceased in way or another. The medical evidence of PW1, corroborated these accounts by confirming that the deceased succumbed to multiple stab wounds inflicted by sharp weapons. The trial court noted that the defences mounted or advanced by the appellants were inconsistent with the weight of the prosecution evidence and did not dislodge the clear and direct testimonies of the prosecution witnesses. 8.In assessing the legal ingredients of the offence, the court held that the nature, location, and severity of the injuries inflicted upon the deceased demonstrated an intention to cause grievous harm or death, thereby satisfying some of the requirements of malice aforethought under section 206 of the Penal Code. It emphasized that the repeated stabbing of the deceased in vital areas such as the neck and chest, coupled with the use of a panga to cut his head, were not acts of mere provocation or accident but deliberate actions aimed at inflicting fatal injuries. It rejected the appellants’ contention that the incident was a mere family feud, finding instead that the conduct of the appellants, demanding the title deed, destroying property, and threatening other family members revealed a calculated and violent disposition. 9.Consequently, the trial court found the appellants guilty of the information. In sentencing the appellants, the trial court considered the gravity of the offence, the fact that the deceased was their own brother, and the extreme aggravating circumstances of the case. While acknowledging the appellants’ mitigation, the court felt that the offence warranted the ultimate penalty. Both appellants were therefore sentenced to death, the court remarking that no lesser sentence would be commensurate with the brutality of the crime and the betrayal of familial bonds. 10.The appellants, aggrieved by the conviction and sentence aforesaid have proffered this appeal on the grounds that the trial court erred both in law and fact in: failing to appreciate that the prosecution had not established its case against the appellants beyond reasonable doubt; completely failing to consider the appellants’ mitigation on record, thereby imposing a sentence that was manifestly harsh and excessive in the circumstances. 11.When the appeal was called out for plenary hearing, Mr. Wangoda, learned counsel appeared for the appellants, while Ms. Mumu, learned prosecution counsel, appeared for the respondent. They all elected to rely on their respective written submissions that they had filed and exchanged with limited oral highlights. 12.Mr. Wangoda, emphasized that the trial court erred by failing to appreciate that the prosecution had not proved its case beyond reasonable doubt. He argued that the prosecution did not prove all the ingredients of the information as required. That whereas PW1 confirmed the cause of death as multiple stab wounds, counsel maintained that the evidence did not demonstrate any intention on the part of the appellants to cause the death. He stressed that the incident arose from an altercation among siblings which escalated into a fight, and therefore lacked premeditation necessary. 13.Counsel reiterated that once intention is removed from the matrix, the edifice of the information collapses, and a lesser charge of manslaughter ought to have been considered. Counsel reverted to Nzuki v Republic [1993] KLR 171 for the submission. He further cited Joseph Kimani Njau v Republic [2014] eKLR, where the Court held that failure to prove mens rea for murder means an accused may only be convicted of manslaughter. 14.On the second ground, counsel submitted that the trial court erred in law by failing to consider the appellants’ mitigation. He argued that the death sentence imposed was unconstitutional in light of the Supreme Court’s pronouncement in Francis Karioko Muruatetu & Another v Republic [2017] eKLR which declared the mandatory nature of the death sentence in murder cases unconstitutional. Counsel emphasized that the sentence was manifestly harsh, excessive, and disproportionate given the circumstances of the case and the appellants’ previous records. He urged the Court to interfere with the sentence therefor noting that the circumstances warranted a lesser sentence. 15.In opposing the appeal Ms. Mumu, submitted that the prosecution had proved the information against the appellants to the required standard. That all the essential ingredients of the offence of murder were fully established. 16.On the death and its cause, counsel relied on the testimony of PW1, who confirmed that the deceased succumbed to multiple stab wounds inflicted by sharp weapons. PW2, PW3, and PW4, all close relatives of the appellants and deceased, witnessed the appellants fatally cut and stab the deceased repeatedly with a panga and a knife respectively. Counsel submitted that the identification of the appellants was beyond peradventure as the incident occurred in broad daylight at about 5 p.m. to be exact and or precise, and the witnesses were persons well known to the appellants, being family members. The appellants themselves admitted being present at the scene, thereby corroborating their participation in the circumstances that resulted in the death of the deceased. . Ultimately therefore, it was counsel’s view that the death and the cause thereof and the perpetrators were credibly established. 17.On malice aforethought, the respondent argued that the nature and severity of the injuries inflicted upon the deceased were sufficient to demonstrate an intention to cause death of or grievous harm to the deceased. The repeated stabbing of the deceased in vital areas such as the neck and chest using a knife and panga, fell squarely within the definition of malice aforethought under section 206(a) of the Penal Code. Counsel further submitted that the appellants’ conduct of demanding the title deed, destroying property, and threatening other family members underscored and manifested their deliberate intention. 18.On sentence, counsel contended that the trial court exercised its discretion judiciously in imposing the death sentence. While acknowledging the Supreme Court’s decision in Francis Karioko Muruatetu & Another v Republic (supra), she nonetheless emphasized that death sentence itself was not invalidated. The trial court considered the appellants’ mitigation but found that the extreme aggravating circumstances of the case warranted no lesser sentence than death. Counsel cited Arthur Muya Muriuki v Republic [2015] eKLR and Shadrack Kipchoge Kogo v Republic, Eldoret Criminal Appeal No.253 of 2003 to posit that appellate interference with sentencing is only justified where discretion is exercised capriciously or on wrong principles, which was not the case here. 19.The jurisdiction of the 1st appellate court in a criminal appeal is to comprehensively review and re-evaluate the evidence tendered in the trial court and the applicable law so as to reach its own independent conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance for that. In essence, the appellate court steps into the shoes of the trial court to assess evidence independently though it allows some leeway for the fact that the trial court observed witnesses first-hand. See Okeno v Republic [1972] EA 32. 20.After considering the record, the submissions of both counsel and the applicable law, the issues we discern for determination in this appeal are whether: the prosecution proved the information against the appellants as required; and whether the sentence imposed was lawful and proportionate in the circumstances. 21.Whether the prosecution proved the information, the essential ingredients of the information that the prosecution is required to establish so as to procure a conviction are the fact of death and the cause thereof, that the death was the direct consequence of an unlawful act of commission or omission attributable to the accused, and that such act was committed with malice aforethought. In this case, PW1, confirmed that the deceased died of multiple stab wounds inflicted by sharp weapons. PW2, PW3, and PW4, all close relatives of the deceased and the appellants, witnessed firsthand, the 1st appellant strike the deceased on the head with a panga while 2nd appellant stabbed him repeatedly with a knife. Their evidence was corroborated by PW5, who confirmed that the appellants sought refuge in his house after the incident, and by PW6 and PW7, who confirmed the chain of events leading to their arrest. 22.The appellants admitted being present at the scene and being involved in the mayhem that subsequently ensued. The incident occurred in broad daylight. This Court has held that consistent and corroborated eyewitness testimony, coupled with medical evidence suffices to establish the actus reus of the accused in a criminal offence. See Kaingo v Republic [1982] KLR 213. This was the case here! Everything said and done therefore, we are satisfied that the prosecution proved the death of the deceased and the cause thereof. The prosecution also proved that the unlawful acts of the appellants led to the death of the deceased. 23.Turning to malice aforethought, section 206 of the Penal Code defines malice aforethought as intention to cause death or grievous harm, or knowledge that the act would probably cause such harm amongst others. In Nzuki v Republic (supra), this Court emphasized that malice aforethought can also be inferred from the nature of the weapon used, the manner of its use, the part of the body targeted and the conduct of the accused before, during and after the commission of the offence. 24.Similarly, in Bonaya Tutu Ipu & Another v Republic [2015] eKLR, the Court reiterated that repeated stabbing in vital areas demonstrates intent to kill. See also Rex v. Tubere s/o Ochen [1945] 12 EACA 63. 25.The facts here show that the deceased was stabbed in the neck, chest, and ribs, and cut on the head with a panga. These are vital and vulnerable parts of the body. The intention could not have been any clearer. The appellants also demanded the title deed, destroyed property, and threatened family members in the process. Such conduct revealed their deliberate and violent disposition. We reject the appellants’ contention that this was a mere quarrel among siblings gone south. The severity and location of the injuries coupled with the use of lethal weapons, the appellants’ conduct before, during, and after the incident in particular, the appellants act of fleeing the scene and seeking refuge in the house of PW5 speaks volumes of their want of innocence. 26.On the second issue, the appellants argued that their mitigation was disregarded. Section 204 of the Penal Code prescribes death as the ultimate penalty for murder. However, the Supreme Court in Francis Karioko Muruatetu & Another v Republic (supra), declared the mandatory nature of the death penalty in murder cases unconstitutional. Nonetheless it reiterated that the sentence imposed in deserving cases. The court also affirmed the principle of individualized sentencing and exercise of discretion. This Court in William Okungu Kittiny v Republic [2018] eKLR held that trial courts must consider mitigation and give reasons for the sentence imposed. The record shows that the trial court acknowledged mitigation but nonetheless imposed the death penalty, citing the brutality of the crime and betrayal of familial bonds. While the court was entitled to impose death, it was required to demonstrate individualized consideration. In Ng’ang’a v Republic [1981] KLR 530, this Court held that failure to properly weigh mitigation may warrant appellate court’s interference. Further in Joseph Njuguna Mwaura v Republic [2013] eKLR, the Court affirmed that proportionality is key in sentencing. 27.We are satisfied that although mitigation was noted, the trial court did not sufficiently demonstrate individualized consideration, particularly given the family context and absence of prior criminal records of the appellants. This Court is therefore entitled to interfere with sentence. No doubt, the offence was grave; the appellants brutally murdered one of their own in cold blood over a land dispute. But the appellants had no previous records in criminality. We are persuaded that while a custodial sentence was warranted, the death penalty was excessive in the circumstances. A sentence of thirty (30) years’ imprisonment will serve the ends of justice, balancing retribution, deterrence, and rehabilitation. 28.Accordingly, the appeal against conviction fails and is dismissed.However, the appeal against sentence succeeds to the extent that the death sentence imposed upon each appellant is hereby set aside and substituted with a sentence of thirty (30) years’ imprisonment, to run from the date of their arrest. DATED AND DELIVERED AT KISUMU THIS 31ST DAY OF JULY, 2026.ASIK-MAKHANDIA…………………………………JUDGE OF APPEALE.C. MWITA…………………………………JUDGE OF APPEALB. ONGAYA…………………………………JUDGE OF APPEALI certify that this is a true copy of the originalDEPUTY REGISTRAR