https://new.kenyalaw.org/akn/ke/judgment/keca/2026/937

Mugure v Republic (Criminal Appeal E078 of 2021) [2026] KECA 937 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 937 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E078 of 2021 MS Asike-Makhandia, HA Omondi & LK Kimaru, JJA May 15, 2026 Between Muhono Matiko Mugure Appellant and Republic Respondent (Being an appeal against the judgment of the High Court of Kenya at Migori (Mrima, J.) dated 12th March 2020 in HCCRC No. 85 of 2014) Judgment 1.Muhono Matiko Mugure alias Mereki Matiko, was charged with the murder of Susan Nyairabu Mogesi contrary to section 203 as read with section 204 of the Penal Code, an incident which was alleged to have taken place on 15th September 2012 at Munyere Sub-location in Kuria East. The appellant denied the information, and after a trial in which the prosecution called eight witness to prove its case, the appellant was convicted and sentenced to death. 2.Being dissatisfied with sentence imposed upon him, the appellant appeals against the said sentence on the following grounds, namely that the learned trial judge erred in law and fact: in imposing the death sentence without adequately considering the evolving jurisprudence following the Supreme Court's decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR, which calls for individualized sentencing and mitigation; erred in principle by giving undue weight to the victim impact and community hostility contained in the pre-sentencing report, while failing to balance those factors against the appellant's potential for rehabilitation, remorse, and reintegration into society; that judge misdirected himself by concluding that the appellant was "suitable for a death sentence" under section 204 of the Penal Code without considering whether any less severe, proportionate, and constitutionally permissible alternative sentence was justified under article 26(1) of the Constitution and the Muruatetu principles; by failing to consider that the pre-sentence report did not assess whether the appellant had undergone any rehabilitation while in custody or whether relocation to a different area could mitigate perceived community hostility; failed to appreciate that no reconciliation efforts had been undertaken between the appellant's family and the deceased's family, and therefore erred in punishing the appellant more harshly for circumstances beyond his personal control; that the sentence of death imposed is excessive, disproportionate, and not warranted in the circumstances of this case, particularly given the court's discretion under Muruatetu cases to impose a definite custodial sentence where appropriate. 3.The appellant proposes for an order setting aside the death sentence imposed upon him; substitution with an appropriate determinate term of imprisonment taking into account the period already served, his personal circumstances, rehabilitation, and the principles enunciated in Muruatetu cases; in the alternative, direct that the appellant be considered for relocation or reintegration in a different area should the court find a non-custodial sentence appropriate. 4.At the hearing of this appeal, learned counsel Ms. Odipo held brief for Mr. Onyiego for the appellant, whilst Miss Mwaniki, the learned Assistant Director of Public Prosecutions held brief for Miss Ikol Essaba, similarly learned Assistant Director of Public Prosecutions for the respondent. 5.A brief summary of the matter dates to the evening of 12th December 2012 at about 8.00pm, in Minyere Sublocation, Kuria East Sub-county. One Hondo who was mentally challenged was in an ungovernable state, creating a ruckus. His home happened to be the immediate neighbour to that of Mogesi Maroa Roswe (PW1), who was attracted by the noise; accompanied by his sons, Joseph Maroa Mogesi, PW2 and Robert Mobusu, PW6, went to find out what was going on. Upon arrival, Hondo became more agitated, claiming that PW6 wanted to kill him, and the latter was told to leave. When PW1 attempted to get into the Hondo’s house to find out why his son had been warned of death, he too was advised to leave, as the appellant and his co-accused (a brother) were on their way to the Hondo abode; and those present were apprehensive that they would kill PW1. So PW1 and the deceased hurriedly left for their home. 6.However, PW2 remained behind, some sixth sense seemed to suggest to him that something bad was about to happen and he wanted to be a witness. Shortly the appellant and his brother (Both of whom PW2 knew very well), arrived, one was armed with a panga and the other had what looked like a gun. They also had bright torches; and PW2 watched them as they gained access into his parent’s compound by climbing over the fence. 7.Later that evening at about 9.30pm, PW1’s family in the company of PW1, his deceased wife Susan Nyairabu Mogesi, and five of their children gathered in their kitchen for a meal, with a tin lamp burning. Suddenly two men armed with a panga, what looked like a gun; and bright torches, walked in, among them being the appellant whom PW1 recognized as they were related through marriage. The two men demanded to be given paraphernalia used in witchcraft; and as PW1 tried to comprehend the nature and intent of their request, they violently set upon him and other family members, inflicting injuries. The commotion drew the attention of PW2, who saw the deceased bolt out of the kitchen into the main house, with the appellant hot in pursuit. Sensing danger, he opened the main gate, as the other family members ran out and sought refuge elsewhere. PW2 who hid inside a cassava plantation, heard the pair declare that they wanted to kill the three witches. When the rage had settled, PW2 rushed back to their home, and realised that the deceased lay on the ground dead, with severe injuries, including chopped off fingers. 8.The ordeal inside the kitchen was witnessed by PW1, HB, PW4 (12-year old daughter to the besieged couple) and PW6 who were inside the kitchen, in the company of the deceased – they all confirmed that they knew the appellant as a brother to Hondo’s wife, and that the room was well lit, with the aid of a tin lamp. PW4 explained how she attempted to defend her father, PW1, then upon seeing the attackers follow her mother into the main house, bolted out through the gate to safety. 9.The body was collected and taken to St. Joseph Mission Mortuary where a post-mortem conducted by Dr. David Otieno, PW7 which revealed deep cut wounds on several joints as well as to right thigh, fore-arm, leg and left buttock; left elbow; left shoulder and bruises on the head and face had bruises. The cause of death was cardio-pulmonary arrest secondary to multiple soft and head injuries. 10.After investigations, the appellant was arrested and charged for the offence of murder. In his unsworn defence, the appellant said he knew nothing about the incident; and that he was arrested while on his way to buy some items to prepare breakfast for his family. 11.Although the appeal is only on sentence, we notice that the appellant made very detailed submissions touching on conviction, which we will not delve into, as the conviction is not contested. 12.On sentence the appellant urged the court to consider a less severe sentence which is constitutionally acceptable and proportionate to the circumstances of the offence, drawing from the decision of Francis Kariokor Muruatetu Another vs. Republic [2017] eKLR, adding that the trial court did not into consideration the reconciliation attempt that had made between the appellant family and the affected family. 13.On sentence, the respondent submits that section 204 of the Penal Code provides for the death penalty, which the trial court imposed on the appellant; and we are urged to uphold the sentence on the basis that this was a case deserving of the death sentence considering the severe and brutal manner in which the deceased met her death; that the appellant had an intention to kill or cause grievous harm to the deceased; the trial court considered the brutal and inhumane manner the deceased met her death, including the fact that the family would forever remain traumatized, particularly PW4 who was then only 8 years old when she witnessed the brutal death of her mother. 14.Relying on the case of Francis Karioko Muruatetu & another vs Republic (2017) eKLR, the respondent contends that the Supreme Court of Kenya did not outlaw the death penalty but only declared the mandatory nature of the death sentence unconstitutional, while affirming that the death sentence remains lawful and may be imposed at the discretion of the trial court. We are thus urged to make a finding that the appellant was rightfully convicted for the offence of murder contrary to section 203 as read with section 204 of the Penal Code and that this appeal is unmerited; that in the event that we are inclined to resentence the appellant then the respondent proposes that the sentence should be at least 50 years imprisonment as a demonstration that justice must not only be done but it must be seen to be done. 15.After considering the record, the submissions and the cited authorities, the single issue for determination is whether the sentence meted was merited; and whether there are sufficient reasons to warrant our interference. Certainly, sentencing is a judicial function that must be exercised within the confines of the law, taking into account the gravity of the offence, the circumstances under which it was committed, and any mitigating or aggravating factors. The appellant argues that the sentence was harsh and disproportionate, warranting the appellate court’s intervention. 16.Section 204 of the Penal Code stipulates that any person convicted of murder shall be sentenced to death. However, following the Supreme Court’s landmark judgment in Francis Karioko Muruatetu & Another v Republic [2021] KESC 31 (KLR), the mandatory nature of the death sentence was declared unconstitutional, granting courts discretion in sentencing in murder cases. The Supreme Court emphasized that sentencing must be individualized, taking into account factors such as the gravity of the offence, the manner in which it was committed, and the impact on the victim’s family. In the present case, the appellant’s actions were deliberate and calculated, demonstrating malice aforethought and warranting a significant custodial sentence. 17.In Chai v Republic [2022] KECA 495 (KLR), this court, reaffirmed that an appellate court may only interfere with a sentence if it is manifestly excessive or based on wrong principles. The appellant has not demonstrated that the trial court misapplied sentencing principles or imposed a sentence disproportionate to the offence committed. In this case, the trial court properly considered the appellant’s deliberate actions and the severity of the offence, leading to a sentence that was well within the statutory framework. 18.The learned Judge took into consideration the manner in which the offence was committed and sentenced the appellant to death. The appellant later filed Kisumu Criminal Appeal No. 40 of 2017 before this court, but he withdrew the appeal on 18th June 2019. He then went back to the High Court for resentencing, courtesy of the Muruatetu I. He presented his plea in mitigation, and the learned judge even called for a presentencing report and remarked as follows:“I have considered the pre-sentence report. The community (sic) attitude and recommendations therein are extremely serious. The entire community cannot withstand the accused person and none would wish to see the accused person back to the village. The local administration is of that position as well. The safety of the accused person is not guaranteed once released. Further, the lives of the villagers will be at risk with the return of the accused person. The report did not indicate that the accused person can in any way be rehabilitated. However, from the totality of that report, that may not be a possibility.No reconciliation has so far been undertaken by the accused person or his family, with the family of the deceased. This is a case in which it is not safe to commit the accused person to any form of non- custodial sentence. It calls for total separation of the accused person from the community.” 19.Need we say more? We take into consideration the manner in which the attack was executed, the terror that was visited on a neighbour and the circumstances of the offence, and we fail to find sufficient reason to warrant our interference with the sentence imposed by the trial court. Consequently, the sentence is upheld, with the result that appeal is 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.Signed.DEPUTY REGISTRAR