https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1641

Shimole v Republic (Criminal Appeal E013 of 2025) [2026] KECA 1641 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1641 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Criminal Appeal E013 of 2025 F Tuiyott, MN Nduma & M Sila, JJA July 31, 2026 Between Mohamed Hamisi Shimole Appellant and Republic Respondent (Being an appeal against conviction and sentence from the judgment of the High Court at Garissa (J. N. Onyiego, J.) delivered on 4th July 2024 in H.C.CR. Case No. E010 of 2021) Judgment 1.The appellant was charged with the offence of murder contrary to Section 203 of the Penal Code. The particulars of the offence were that on the 4th day of December 2021, at Balambala Township, Balambala Location, Balambala Sub-County, within Garissa County, he murdered Idriss Salim Hama (the deceased). The appellant pleaded not guilty and the matter proceeded for trial. Upon hearing, the appellant was convicted of the offence and sentenced to 20 years imprisonment. He now appeals to this court against both conviction and sentence. 2.This being a first appeal, the duty of this Court is to re-evaluate the evidence and come up with its own findings, having in mind that we did not see or hear the witnesses (See Okeno v R (1972) EA 32). Being alive to that mandate, it is prudent to first set out the evidence that was presented in the trial court. 3.Juma Salim (PW1), a mason, testified that the deceased was his brother, and on the material day, 4th December 2021, he had gone to visit his daughter and the deceased at Mbalambala. The appellant, whom he had known for a long time, as they were neighbours in town, approached and asked the deceased whether he has seen his hammer. The deceased told him that he had not. The appellant then bent and removed a knife which he used to stab the deceased on his left leg and ran away. PW1 took his bleeding brother to hospital on a motorcycle but he was pronounced dead on arrival. He proceeded to the police station at Mbalambala and reported the incident. He described the deceased as polite and they had no argument with the appellant. Cross-examined he testified that he was with his daughter and the deceased at the material time. He stated that he returned to the scene of crime with the police at about 10.00am upon making the report. 4.Aisha Shire (PW2) is a miraa (khat) seller. On the fateful day, at 9.00am, she was at her business when her father (PW1) and the deceased came. The appellant appeared and asked for his hammer. When the deceased said that he had not seen it, the appellant removed a knife from his short, stabbed him and ran off. The deceased bled and was taken to hospital where he was pronounced dead. The appellant, a neighbour at Mbalambala, was known her for a long time. She was not aware of any differences between the appellant and the deceased. She narrated that there were three people at the scene including herself, PW1 and the deceased. She denied that it was PW1 who had the knife and asserted that it was the appellant who had it. She reiterated in cross-examination that the deceased was stabbed on the leg and bled profusely. The deceased was buried on the same day at 1pm. She did not witness the post-mortem. 5.At the material time, the Chief of Mbalambala was John Abagana Abadida (PW3). He was in his office on 4th December 2021, when he received calls from two persons, one being Yunis Khalif and the other the OCS of Mbalambala. Both informed him of the incident and advised him that the appellant ran towards Tana River and he should try and locate him. He knew the appellant as a local and he tried to reach him through his phone. He also called the brother to the appellant, one Jille Hamisi Shimole, and instructed him to locate the appellant. At 8.00pm, Jille called him and informed him that they had found the appellant. The appellant had surrendered to his family who in turn took him to Asaka Police Station. PW3 had known the appellant for a long time and had no previous adverse report on him. He knew the deceased but he did not see him on the material day. He described the deceased as polite and not prone to fighting. 6.Dr. Mohamed Noor Edakaar (PW4), a medical officer at Mbalambala, conducted a post-mortem on the deceased on 4th December 2021. The body had a deep cut at the back of the left leg, extending to the front part of the thigh, which injured the pulmonary artery. In the opinion of the Doctor, the cause of death was hypovolemic shock as a result of massive bleeding which caused a cardiogenic shock. He produced the post-mortem report as an exhibit. 7.Sergeant Benson Sindani (PW5), the investigation officer, was stationed at the DCIO’s office at Mbalambala. At about noon, on 4th December 2021, he was called by the Officer Commanding Station (OCS) and informed that there was a reported case of murder. He visited the scene and met PW-1 and PW-2 who narrated to him what happened and he recorded their statements. He proceeded to the hospital and was present at the post-mortem. He could see a stab wound on the left side of the thigh. He was later informed that the appellant had been arrested and taken to Abako Police Station. Together with two other officers they picked up the appellant. Cross- examined, he testified that the murder weapon was not recovered. 8.The trial court found that a prima facie case had been established and the accused was put on his defence. He opted to give a sworn statement without calling any witness. 9.He was 32 years old, earning a living as a conductor, and carpenter. He knew the deceased who was his friend and they used to work together. On the material day, he visited the deceased to pick his hammer from him. He found the deceased with his family members and he asked him to give him the hammer. The deceased told him that he had misplaced it and ordered him to leave which he refused. It was at this point that the deceased and his family members attacked him, knocking him down. He however managed to escape. He later heard that the deceased had been stabbed with a knife. He denied having a knife and stabbing the deceased. Later he reported to the police where he was locked in. He pointed out that no knife was produced as an exhibit and asserted that he did not have any. He contended that he ran away after he was attacked. He denied that he ran away to evade arrest. 10.After analysing the evidence, the trial court found the appellant guilty of the offence as charged. He found the prosecution case elaborate and well corroborated. Regarding the defence of the appellant, he was not persuaded. He wondered why the appellant would run away if he had not stabbed the deceased. He found the action of the appellant to be cruel, senseless, and uncalled for. On the element of malice aforethought, he held that the appellant had pre-planned to kill the deceased, and the allegation that he was searching for his hammer was a mere excuse. He wondered why he would be armed if he was only going to pick his hammer. On sentence, he held that the pre-sentence report provided information that the appellant had a good reputation in the community and his family supported that of the deceased to meet burial expenses. The family of the deceased was bitter but amenable to reconciliation. He considered the mitigation of the appellant, where he pleaded for leniency and mentioned that he had reformed. The Judge nevertheless took account of the circumstances under which the offence was committed, finding no justification at all for the action of the appellant. He accordingly sentenced him to 20 years imprisonment less the period spent in custody which was 3 years, 4 months and 17 days. 11.Aggrieved, the appellant has preferred this appeal on both conviction and sentence grounds that the learned Judge erred in law :1.By failing to observe that the prosecution did not prove the elements of the offence beyond any reasonable doubt.2.By convicting and sentencing the appellant without observing that the entire prosecution witnesses were incredible and unreliable thus unworthy to be relied upon.3.By failing to give the appellant’s defence any consideration and further failed to consider Section 169 (1) of the Criminal Procedure Code while disowning the appellant’s defence. 12.The appellant wishes that the judgment be set aside and he be set free. 13.The appeal was canvassed by way of written submissions buttressed by oral highlights at the hearing. 14.In her submissions, Ms. Naliaka, learned counsel for the appellant, inter alia submitted that if the appellant had stabbed the deceased, then the wound would be at the front side, and since the wound was at the back of the leg, there is a high possibility that it must have been an accident. Counsel submitted that to cure this doubt, the prosecution ought to have called for a forensic examination of the scene to identify fingerprints on the knife. Counsel further submitted that the appellant was convicted on the testimony of two witnesses who are related to the deceased and there is nothing else that ties the appellant to the murder. Counsel submitted that the trial court relied on the evidence of PW-1 and PW-2 without giving any regard to the sworn evidence of the appellant, that the cause of death might have been an accident. Counsel submitted that there is reasonable doubt as to who was holding the knife, and further, that the murder weapon was not produced. Counsel also questioned who identified the body to be that of the deceased. 15.On the other hand, Ms. Njoki Keng’aara, learned counsel for the respondent, submitted that the appellant was placed on the scene and that he acknowledged as much in his defence. Counsel wondered what purpose the appellant had in going to pick his hammer while armed with a knife. Counsel did not find any issue regarding the sentence. She urged that the appeal be dismissed and the sentence be substituted with one of death. Together with the submissions, counsel filed a notice of enhancement of sentence, which was however withdrawn at the hearing of the appeal. 16.We have already outlined the duty of this court as a first appellate court and we are alive to that mandate. 17.The evidence reveals that both PW1 and PW2 were at the scene of crime. They both described how the appellant approached them and that the appellant asked the deceased for his hammer. They both stated that the appellant informed the appellant that he did not have the hammer after which the appellant drew out a knife and stabbed the deceased on his left leg. We do not find any inconsistency in the evidence of the two witnesses. 18.It was submitted by Ms. Naliaka that PW1 and PW2 were relatives of the deceased, but the fact that they were relatives does not mean that their evidence cannot be considered to be creditworthy. No evidence whatsoever was led that they had any grudge or ill-will towards the deceased so that they could concoct a narrative to his prejudice. It was submitted by Ms. Naliaka that the deceased could have stabbed himself accidentally because the injury was to the back of the thigh. There is no shred of evidence that the deceased had any knife on him. As we have found, the direct evidence adduced is consistent that it was the appellant who had a concealed knife on him and that he drew it after the deceased informed him that he did not have the hammer that the appellant was looking for. In any event, during the hearing, no insinuation whatsoever was put to the witnesses that the deceased may have had a knife on him which caused the injury. 19.On the submission that the injury ought to have been at the front and not the back, yet again, that possibility was never presented at trial. In any event, it cannot be said that there is no possibility of a person ever being stabbed at the back of the leg with a knife. That submission is clearly an afterthought before this court. It was also raised that the deceased was never identified at the post-mortem. The evidence presented was that the deceased was delivered to hospital by PW1. A post-mortem was conducted more or less immediately because the deceased was buried the same day at around 1pm, which must have been in consonance with Islamic custom. PW3 who conducted the post-mortem described the person brought for post-mortem and described the wound which is on all fours with the nature of injury that both PW1 and PW2 witnessed. PW4 testified that upon receiving the report of the incident he proceeded to hospital and was present at the post-mortem. We are not persuaded that in those circumstances, the post-mortem was conducted on the wrong body and we see no issue that no relative of the deceased was called as the identifying witness present at the post-mortem. 20.Regarding the defence of the appellant, he testified that he was the one attacked by the deceased, PW1 and PW2. We find this defence to have been an afterthought. During cross-examination of the witnesses, it was never posed to them that they attacked the appellant. Moreover, the action of the appellant, of running away from the scene, is also telling that he committed the offence. We find no iota of evidence that would disturb the finding that it was the appellant who stabbed the deceased with a knife that he had concealed. 21.It was argued that no murder weapon was produced and no fingerprints of the knife availed. The murder weapon was not produced for reason that the appellant ran away with it. The prosecution could not, in those circumstances, be expected to avail what they did not have. The location of the murder weapon was within the special knowledge of the deceased. The witnesses testified as to the nature of the murder weapon and how the appellant used it against the deceased. Thus, the fact that no murder weapon was produced did not in any way prejudice or weaken the prosecution case. 22.It was further urged that there was no malice aforethought. We are not persuaded. As posed, what reason did the appellant have in carrying a knife if all he wanted was to ask for a hammer? He must have premeditated the killing and that is why he came armed with a knife. In any event, under Section 206 of the Penal Code, malice aforethought is 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. 23.At the very least, the act of unleashing a knife and using it to stab the deceased, was an act that was intended to either cause the death of the deceased or cause him grievous harm, and therefore, malice aforethought was established. 24.Overall, we see no reason to interfere with the conviction and we sustain the same. 25.Regarding sentence, it is settled that this court, as an appellate court, will not interfere with sentence unless the trial judge has acted upon wrong principles, or overlooked some material factors. (See Sawe v Republic (2024) KECA 816.) 26.From the record, the learned trial Judge took into consideration the pre-sentence report and the mitigation of the appellant before sentencing him. He also took into account the period that the appellant had spent in custody. Under the Penal Code, Section 204, the prescribed sentence for the offence of murder is death. This has however been tempered by the decision of the Supreme Court in Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2017] KESC 2 (KLR) (14 December 2017) (Judgment), where the Court held that the sentence of death ought to be interpreted as the maximum sentence but not the sole sentence. We see no reason to disturb the sentence. As we have mentioned, the trial Judge took into consideration the circumstances surrounding the murder of the deceased, the pre-sentence report, the mitigation of the appellant, and the time spent in custody. We do not find any irrelevant factor that the trial Judge took into consideration nor have we been informed that he failed to take into account a relevant factor. There is no basis upon which the sentence may be revised to the benefit of the appellant. 27.From the foregoing, we find no substance in this appeal and it is hereby dismissed. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026F. TUIYOTT………………………………………………………JUDGE OF APPEAL NDUMA NDERI………………………………………………………JUDGE OF APPEALMUNYAO SILA………………………………………………………JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR