Ambet v Republic (Criminal Appeal E136 of 2024) [2026] KECA 1420 (KLR) (10 July 2026) (Judgment)

Ambet v Republic (Criminal Appeal E136 of 2024) [2026] KECA 1420 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1420 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E136 of 2024 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 10, 2026 Between Mickey Ochieng Ambet Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Kisumu (R.E Aburil, J) dated 27th November 2024 in HCCRC No. 3 of 2019) Judgment 1.This is an appeal from the judgment of the High Court of Kenya at Kisumu (Aburili, J) dated 27th November 2024 in Criminal Case No.3 of 2019. Mickey Ochieng Ambete, (the appellant), was arraigned before the High Court of Kenya at Kisumu (the trial court) on the information charging him with murder contrary to section 203 as read with section 204 of the Penal Code, particulars of the offence being that on 2nd January 2019 at Embassy lounge at Ahero Township, Nyando Sub-County within Kisumu County, he murdered Brian Odhiambo Oiro (the deceased.) 2.When called upon to plead, the appellant denied the information triggering a trial in which the prosecution called eleven (11) witnesses in an attempt to prove its case. 3.PW1, Phineas Odeny Omondi, who worked at Embassy club (the club) as the manager, was preparing to close the club at around 3. 00 a.m. when a customer informed him that one of the bouncers at the club had assaulted someone and locked him in the toilet; PW1 went to check and found the appellant, a bouncer at the club, quarrelling and fighting with a customer, the customer informed PW1 that the appellant had been beating people and when the customer confronted the appellant about it, the appellant started assaulting him. The customer’s clothes were torn, but PW1 did not notice any injuries on the customers’ body at that time. Police officers later came to the club and took away the person whose clothes by now had blood but the person died later. 4.PW2, Eunice Achieng Obong, was serving customers at the counter, went to the toilet area and found the manager quarrelling with a customer and she returned to the counter where she found the appellant asking for a padlock before heading towards the toilet. 5.Julius Akeda Okuta (PW4) was in the club in the company of one Dennis Kamau, he saw the deceased in the club with cousins, at about 3.30 a.m, PW4 saw the appellant and another bouncer assaulting the deceased but his attempt to stop the appellant from assaulting the deceased failed after the appellant pushed him away. PW4 then saw the appellant remove a knife from his pocked and stab the deceased on the left side of the chest. PW4 offered to take the deceased to hospital but the deceased declined. They began walking home together with the deceased but PW4 noticed that the deceased was bleeding profusely. They returned to the club where PW4 informed the appellant that he had injured the deceased and should therefore take the deceased to hospital but the appellant and one Okoth assaulted PW4 and locked him in the women’s washroom while the deceased was locked in the men’s washroom. Police officers later came and rushed the deceased to hospital but the deceased died due to the injuries he had sustained. 6.PW5, Cornel Oiro Akello, the deceased’s father, identified the deceased’s body on 7th January 2019 for post mortem purposes at Ahero County Hospital Mortuary, while PW6, Dr. Ombok Lucy, produced the post mortem report on behalf of Dr. Eddy Owuor who conducted the post mortem. The body had a stitched scar wound on the left side of the chest, a penetrating wound on the left side of the chest piercing the fourth rib, accompanied by massive bleeding in the left lung and a penetrating wound cutting the vessels to the heart and forming a blood clot. The cause of death was massive hemorrhage, secondary to a penetrating chest injury. 7.On his part, PW7, Nicholas Ochieng, was at the club on the material night, and at about 2.00 a.m., some people left and on reaching the door, the appellant slapped them and escorted them out of the club. The appellant hit one of them before pushing them into the toilet. 8.PC Michael Ochieng, (PW8) was also at the club, at around 3.00 a.m, when he saw the appellant taking a man to the toilet; noticed a commotion and when he asked the appellant what was happening, the appellant did not respond. He assumed that the appellant was doing his job and did not pursue the matter further. Shortly thereafter, Chief Inspector of police Kwendo Amatsivi Wyclife and Sergeant of police Kyuma arrived at the club, proceeded to the toilet and later came out carrying a person wrapped in a blanket and bleeding profusely. The injured person was taken to hospital in the GK Police vehicle but the person was pronounced dead on arrival. 9.Chief Inspector Kwendo Amatsivi Wyclife, (PW9) was on patrol when he received information that there was trouble at the club. When he arrived at the club, the appellant informed him that he had locked up two people in the toilets because they were causing disturbance. PW9 directed the appellant to open the toilets and the deceased was rushed to hospital. PW9 was later informed that the deceased had died, he proceeded to the mortuary to see the body. PW4 informed him that there was a fight between the appellant and the deceased. 10.PW10, Dennis Kamau Okumu who was at the club with PW4, testified that he saw the appellant assaulting the deceased and PW4 attempted to intervene. PW10 left to seek help, but on coming back, he found that PW4 and the deceased had been locked up in the toilet and the appellant refused to open the door until PW9 arrived. According to PW10, the deceased was bleeding from the chest before being taken to hospital. 11.PW11, CIP David Kirinya Mugambi, the Nyando DCIO officer then, received information from PW9 that the deceased was found in a toilet in the club with a deep wound on the left side of the chest and taken to hospital, but later learnt that the deceased had died. PW11 and PW9 went to the mortuary to see the deceased’s body and later obtained CCTV footage from the club which showed the appellant and another person struggling with the deceased. The appellant was subsequently arrested and charged with the deceased’s murder. 12.When put on his defence, the appellant gave a sworn testimony and called one witness. The appellant denied committing the offence. It was his case that the deceased and PW4 were fighting and he went to intervene in order to separate them; the deceased and PW4 had broken bottles worth Kshs. 4,500 during the fight; he managed to separate them and placed the two in separate rooms near the toilets but he did not notice any injuries on the deceased’s body. He called PW9 who came and he opened the toilet doors, one person was sitting supporting himself on the wall, could not walk, was bleeding and was, therefore, taken to hospital. According to the appellant, one of the customers who was drunk, stated that he was not injured. The appellant later received information the following day that one of the people had died. 13.DW2, Evans Omondi Otieno, was celebrating new year at the club, at 12.30, he saw people at a nearby table pulling one another before they started fighting, the DJ stopped the music and called security personnel. He went out as many people were also leaving but he did not see the appellant. 14.After considering and evaluating the evidence of both the prosecution and the defence, the trial court concluded that the prosecution had proved the information of murder against the appellant beyond reasonable doubt, convicted the appellant and sentenced him to twenty five (25) years’ imprisonment. 15.Dissatisfied, the appellant filed this appeal against both the conviction and sentence and raised several grounds that the trial court erred in; failing to find that the prosecution had not proved the case against him beyond reasonable doubt; convicting him based on contradictory and inconsistent prosecution evidence; shifting the burden of proof to him; convicting him on speculative circumstantial evidence; failing to consider his defence and meting out a sentence of 25 years' imprisonment which was too harsh and disproportionate given the mitigating circumstances. 16.When the appeal came up for plenary hearing through the Court’s Virtual Platform, Mr. Onsongo, learned counsel, appeared for the appellant while Ms. Onyango, learned Principal Prosecution counsel, was present for the prosecution. The appellant appeared through our video link from prison. Both counsel relied on their written submission in arguing their respective parties positions in this appeal. 17.Mr. Onsongo submitted that the prosecution did not prove the ingredients of the offence of murder beyond reasonable doubt and relied on Sekitoleko v Uganda [1967] EA 531, for the argument that the prosecution has a duty to prove all the elements of the offence beyond reasonable doubt and the conviction of the accused is dependent upon the strength of the prosecution case and not the weakness of the defence case, and the decision of Pius Arap Maina v Republic [2013) eKLR, for the proposition that the prosecution must prove a criminal charge beyond reasonable doubt and any evidential gaps in the prosecution’s case, must be resolved in favour of the accused. 18.Counsel further submitted that the prosecution’s case was riddled with inconsistencies and relied on Ndungu Kimani v Republic [1977] KLR 283, for the contention that prosecution witnesses should not create suspicion in the mind of the court on their trustworthiness, that the prosecution evidence left many gaps such as where the scuffle was, between who and who, who saw the deceased being stabbed and why was the murder weapon not produced before the trial court, a burden that fell on the prosecution. 19.Counsel faulted the trial court for placing premium reliance on the testimony of PW4 despite the fact that testimonies of the other witnesses were marred with contradictions and inconsistencies which should have been resolved in favour of the appellant, and that the sentence of 25 years was excessive and disproportionate in the circumstances of this case. Counsel argued that the prosecution having not discharged the burden of proof before the trial court, the appeal should be allowed, the conviction quashed and the sentence set aside. 20.The appeal was opposed by Ms. Onyango, through her written submissions, arguing that the prosecution proved the ingredients of the offence of murder, including malice aforethought beyond reasonable doubt. 21.Regarding the alleged contradictions, counsel submitted that there were no material contradictions and PW4’s evidence was credible that he saw the appellant remove a knife and stab the deceased. 22.On sentence, counsel argued that sentence is a matter within the discretion of the trial Court and, therefore, the sentence of twenty five (25) years imprisonment is lawful and appropriate in the circumstances of this case. Counsel relied on Wanjema v Republic [1971] EA 493 where it was held that the appellate court should not interfere with the sentencing discretion of a trial court unless it is shown that the court overlooked a material factor, considered an irrelevant factor, acted on a wrong principle, or imposed a sentence that is manifestly excessive in the circumstances. Counsel urged us to dismiss the appeal. 23.As a first appellate Court, we are expected to submit the entire evidence tendered in the trial court to a fresh and exhaustive evaluation, reanalyze and reevaluate it, and draw our own independent conclusions, while bearing in mind that we did not have the opportunity to observe witnesses testify and therefore give due allowance for that. (Okeno v Republic [1972] EA 32.). 24.Having considered the record and the submissions made on behalf of the parties and the applicable law, we discern two core issues that fall for determination, namely; whether the prosecution proved the information of murder against the appellant beyond reasonable doubt and whether the sentence imposed against the appellant was lawful and appropriate in the circumstances. 25.Section 203 of the Penal Code provides that:Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder. 26.Arising from the above definition, the prosecution must therefore prove three ingredients of murder in order to secure a conviction, that is; death of a person, and the cause thereof, that the death was as a result of an unlawful act of omission or commission by the accused and was actuated by malice aforethought. 27.The issue regarding the deceased’s death was neither in dispute before the trial court nor in this Court. PW9 organised for the deceased to be taken to hospital and later upon learning of his death, he went to the mortuary together with PW11 and the two saw the deceased’s body, PW5 the deceased’s father, identified the deceased’s body for purposes of post mortem, while PW6 produced the post mortem report on behalf of Dr. Eddy Owuor who conducted the post mortem. The deceased’s body had a penetrating wound on the left side of the chest piercing the fourth rib, massive bleeding in the left lung; a penetrating wound cutting the vessels of the heart and formed a blood clot. The post mortem report concluded that the cause of death was massive hemorrhage, secondary to a penetrating chest injury. This evidence, therefore, proved beyond reasonable doubt, the death of the deceased and the cause thereof. 28.The next issue is whether the appellant was the perpetrator of the offence of murder. While it was argued for the appellant that he was not, it was submitted for the respondent that the appellant committed the offence. 29.PW1, the manager, of the club, was informed that bouncers who included the appellant, had locked customers in the toilets, he went to check and found the appellant quarrelling and fighting with a customer. Two people had been locked up in separate toilet rooms and when police officers later came, the appellant opened the doors, one person who was bleeding was taken to hospital by police officers. PW3 saw the appellant quarrelling with a customer Julius (PW4) and later pushed the customer into the toilet and locked him up. 30.PW4 saw the appellant and another bouncer who were known to him holding and assaulting the deceased. When PW4 tried to intervene, the appellant pushed him away. PW4 then saw the appellant “remove a knife from the right side pocket of the jacket and stabbed the deceased on the left side of the chest.” Police officers later came and took the deceased to hospital. 31.PW8, a police officer saw a bouncer holding a young man leading him to the washrooms. He later saw a commotion and shortly after, PW 9 came to the club, went to the toilets and came out carrying someone who was bleeding profusely, the person was placed in a GK vehicle and taken to hospital. PW11 confirmed that CCTV footage obtained from the club showed the appellant and another person struggling with the deceased. 32.The appellant’s version of the events was that on that morning, the DJ called them (security) because peace had been disrupted following a commotion. He went to the dance area and found the deceased and PW4 fighting, separated them and because they had broken bottles and therefore, they had bills, he detained them in the rooms used for holding customers who have not paid bills. The appellant did not notice any injuries at the time. He later called the police; he went with PW9 to the holding rooms and opened the doors. The deceased was sitting in one room supporting himself on the wall; he had removed his vest; he was bleeding and could not walk. The police officers took the deceased to hospital but he later died. 33.We have reevaluated the evidence and reconsidered it afresh.It is clear that indeed, the appellant was with the deceased which was confirmed by the evidence of PW1, PW3 and PW4. PW4’s evidence was that he saw the appellant remove a knife from his pocket and used it to stab the deceased on the left side of the chest. The post mortem report also confirmed that the appellant suffered a penetrating stab wound on the left side of the chest which was in agreement with the evidence of PW4. PW11 further confirmed that from the CCTV footage obtained from the club, the appellant and one other person, were struggling with the deceased. 34.The appellant stated that he found the deceased and one Julius fighting and separated them, but because they had broken bottles and therefore had bills, he locked them in separate washrooms until police officers came. From the time the appellant allegedly separated the deceased and PW4, took them to the washroom and locked them inside, he did not notice any injury on the deceased’s body. The appellant expressly admitted that it was him who took the deceased and another person to the washrooms and locked them up, which was consistent with what PW1 the manager at the club saw the appellant fighting with a customer and locked him up in the washroom. 35.The appellant admitted that he locked up the deceased in the washroom but that the deceased had no injuries. The appellant’s evidence is inconsistent with the evidence of PW4 who saw the appellant stab the deceased with a knife. It could not be that the deceased injured himself while locked up in the washroom. 36.The evidence of the appellant’s witness (DW2) was also not helpful. Whereas the appellant and all other witnesses were clear that the incident took place after 3.am when the DJ called the security team, DW2 stated that the commotion was at 12.30 am. Secondly, DW2 did not state who the people he saw fighting were, or if he knew them. The fact that DW2 stated that he did not see the appellant, would not absolve the appellant. 37.Upon reevaluating and reanalyzing the evidence on record and weighing the prosecution evidence against that of the appellant and his witness, we agree with the trial court that the prosecution evidence pointed to none other than the appellant as the person who stabbed the deceased causing his death. The appellant was the last person who was with the deceased, he led the deceased to the washroom and locked him up and therefore he had the burden to explain how the appellant sustained the fatal injuries that caused his death, which he failed to do. 38.This leads us to the next issue, whether the appellant’s act was actuated by malice aforethought. To secure a conviction for the offence of murder, the prosecution must prove beyond reasonable doubt, that the accused acted with malice aforethought. 39.Section 206 of the Penal Code defines what constitutes malice aforethought, that is; an intention to cause the death of or to do grievous harms to any person, whether that person is the person actually killed or not; Knowledge that the act or omission causing death will probably cause the death of or grievous harms to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous harm is caused or not, or by a wish that it may not be caused, and intent to commit a felony. 40.This was reiterated by this Court in Abdi Kinyua Ngeera v Republic [2014] KECA 654 (KLR), thus:For the offence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the accused had the malice aforethought. (emphasis) 41.In determining whether the appellant acted with malice aforethought, the trial court considered evidence on the nature of the injuries the deceased sustained and the object used and concluded that the evidence demonstrated that the aim was to ultimately cause the deceased’s death and therefore the appellant had malice aforethought. 42.We have reviewed the evidence on record regarding this issue.There was no evidence from any of the witnesses on what exactly happened prior to the stabbing of the deceased. PW1 was informed that there was an incident in the club and when he went to check, he found the appellant quarrelling and fighting with a customer but he did not know the cause of the fight. Although PW4 witnessed the stabbing, he also did not know what caused the incident. PW8 stated that there was commotion and he saw a bouncer leading a customer to the washrooms. The appellant himself stated that there was disorder in the club and security was called in to intervene and restore order and, as a member of the security team, he saw the deceased fighting with PW4 and went to separate them. Similarly, DW2’s evidence was that indeed, there was commotion and he saw people fighting. All witnesses were unanimous that there was commotion in the club but could not tell the cause thereof. 43.It must also be borne in mind that the incident happened at a time when most revelers were high on drinks and the appellant stated that one of the two people who were fighting was drunk. From the evidence on record, the attack was spontaneous, following the commotion in the club. The appellant as a member of the security team was responding to a call to calm the situation and restore order in the club which, however, ended up with the stabbing of the deceased. There was no evidence that his action was premeditated or planned and although it does not absolve him from responsibility, it mitigates the degree of malice aforethought in the circumstances of this case. 44.As the Court stated in Sekitoleko v Uganda (supra), the prosecution has a duty to prove all the elements of the offence of beyond reasonable doubt. (See also Nyambura & Others v Republic [2001] eKLR; Anthony Ndegwa Ngari v Republic [2014] eKLR). However, from our reevaluation of the evidence in this appeal, the conclusion we come to, is that the prosecution did not prove malice aforethought, one of the key ingredients for the offence of murder, beyond reasonable doubt. The evidence on record and the circumstances under which the offence was committed, pointed to a lesser offence of manslaughter rather than murder. We therefore find that the trial court erred in convicting the appellant for the offence of murder despite the prosecution not proving malice aforethought as required by law. 45.The last issue is on sentence. It was argued for the appellant that the sentence of twenty-five (25) years imprisonment is harsh and disproportionate, but the respondent contended that the sentence is lawful and appropriate in the circumstances of this case. 46.We are aware that sentencing is at the discretion of the trial court but in exercising that discretion, the court has to ensure that the sentence imposed reflects both the seriousness of the offence and proportionality, taking into account the circumstances of each case. In this appeal, the trial court imposed a sentence of twenty-five (25) years without demonstrating how it weighed the mitigating factors against the aggravating circumstances in this case. 47.Having weighed the brutality of the appellant’s violent act that led to loss of life but which was not premeditated or deliberate; the mitigating circumstances in this case; the appellant’s mitigation that he was a first offender, married, the sole breadwinner for his extended family and was remorseful, and considering proportionality in sentencing, we are inclined to set aside the sentence of 25 years and substitute it with a sentence of twelve (12) years’ imprisonment. 48.In the end, we allow the appeal on both conviction and sentence for the offence of murder, and substitute it with a conviction for the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. The appellant shall serve a sentence of twelve (12) years imprisonment. The sentence of twelve (12) years shall run as directed by the trial court. DATED AND DELIVERED AT KISUMU THIS 10TH DAY OF JULY, 2026.ASIKE-MAKHANDIA……………….……… JUDGE OF APPEALE.C. MWITA……………..….……… JUDGE OF APPEALB. ONGAYA……………..…….…… JUDGE OF APPEALI certify that this is a true copy of original. DEPUTY REGISTRAR