[2024] KEHC 10637 (KLR)

Munyiri v Republic (Criminal Appeal E042 of 2021) [2024] KEHC 10637 (KLR) (11 September 2024) (Judgment)

Neutral citation: [2024] KEHC 10637 (KLR)

Republic of Kenya

In the High Court at Nyeri

Criminal Appeal E042 of 2021

RC Rutto, J

September 11, 2024

Between

Mary Murugi Munyiri

Appellant

and

Republic

Respondent

(Being an appeal from the Judgment of Hon. D.K Matutu (PM) at the Mukurweini Magistrate Court Criminal Case No 282 of 2018 delivered on 14th October 2021)

Judgment

A. Introduction 1. The Appellant being aggrieved by the decision of the trial court that convicted her for the offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code has lodged this appeal. She seeks that her conviction be quashed and the 15 years imprisonment sentence set aside.

2. The appeal is premised on the following amended grounds of appeal, that: -a.The trial court erred in law by relying on unsafely circumstantial evidence to justify a conviction of parameters which area capable of being explained upon other reasonable hypothesis other than that of guilt.b.That the trial court erred in law by concluding that there was a motive simply because there was previous aforementioned argument of quarrel between the couple and which does not completely amount to malice aforethought from the accused person.c.That the trial court erred in matter of law and fact by failing to note that there were grave material contradiction inconsistencies evidence in the prosecution case capable of unsettling the prosecution case.d.That the trial court erred in law in failing to put into consideration that some vital prosecution witnesses never enlisted to adduce evidence hence occasioning serious prejudice.e.That the trial court erred in law and facts by failing to put into consideration her pragmatic statement of defence contrary to Section 50 (1) of the Constitution of Kenya 2010 was insufficient proof to lead to a conviction.f.That the trial court erred in law and fact in imposing a harsh and excessive sentence it over looked that sentencincing is discretionary andthe option of non-custodial sentence would have sufficed given that according to the provision of the sentencing guidelines (2013) imprisonment should be a matter of last resort.

B. Background 3. Before the trial court, the appellant was charged with the offence of manslaughter contrary to section 202 as read with Section 205 of the Penal Code. The particulars of the offence were that on 21st October 2018 at Gathungururu village in Mukurwe-ini sub-county within Nyeri county, caused the death of Peter Mwangi Maina.

4. The appellant pleaded not guilty and to prove its case, the prosecution called 13 witnesses.

C. Prosecution case 5. PW1, Stephen Murogo Wachiuri, a farmer and bodaboda operator, testified that on 20th October 2018, at around 9 a.m., he was at Thangathi stage when the appellant who is known to him appeared and requested to be taken to Gathungururu, which he did. He stated that the appellant did not disclose the purpose of her visit.

6. PW2, Samuel Njagi Njeru, a bodaboda rider, testified that on 20th October 2018, at around 9 p.m., the deceased, who appeared to be intoxicated, arrived at the stage in the company of a lady and requested to be taken home. He took both of them to the deceased’s house, as he knew the deceased, who was his village mate. He further testified that he later learned of the deceased’s death, although he did not know the cause.

7. PW3, Boniface, stated that he operates a bar in Thangathi, Nyeri County. He testified that on 20th October 2018, at 10 p.m., he closed his bar as the police had ordered them to do so, and at the time, only two patrons were present. He stated that on the morning of 21st October 2018, he was informed that a customer who had been drinking in his bar was stabbed by his wife at home. He mentioned that he did not meet the deceased, but he had an employee who had worked for him for about a week. The employee did not report to work on 21st October 2018. He stated that he did not know whether she had been drinking with the deceased. He further stated that he was informed that the appellant was the deceased's wife.

8. PW4, Mary Njambi Maina, mother of the deceased, states that the deceased was her third-born child. That on 20th October 2018, at around 11:30 p.m., she received a call from her first-born son, Joseph Kimani, who informed her that the deceased had been stabbed with a knife by his wife, Mary Murugi. Her son told her that they were looking for a vehicle to take the deceased to the hospital, but did not have money. She promised to send money in the morning. She further testified that in the morning, another of her sons came to her house and informed her that the deceased had passed away. She stated that the deceased and the appellant often drank and fought and had previously separated and reunited. During cross-examination, she stated that when Mwangi was stabbed he shouted and the appellant was found carrying knife and clothes from the house by Kimani. Further, Kimani talked to the deceased before he died.

9. PW5, Jackson Gatiithi Njoka, testified that on the night/morning of 20th/21st October 2018, he received a call requesting him to help transport to hospital someone who had been stabbed. Upon arriving at the scene, he found the deceased lying on the roadside, covered with a lesso and surrounded by many people. He advised them that they first report the incident to the police. He then went to Thangathi AP Post, then to Thangathi dispensary, where he was advised to take the victim to Mukurwe-ini Hospital, where the victim was pronounced dead. PW5 stated that he was informed the deceased had been stabbed by his wife, whom he knew as the deceased’s spouse. He also mentioned that he had no grudge against the appellant.

10. PW6, Dr. Paul Kimathi who was attached to Mukurwe-ini District Hospital, testified that on 26th October 2018, he performed a post-mortem on the body of Peter Mwangi Maina at Mukurwe-ini Hospital mortuary at around 9 a.m. He stated that, upon general observation, the deceased's clothing were removed, and the external examination revealed a laceration on the thigh, at the arterial level near the scrotum, approximately 7 cm in length on the right lower leg. He further noted that there was clotted blood all over both legs. He testified that the cause of death was hemorrhage due to severed blood vessels, simply put, bleeding caused by stab wounds on the right leg. He produced the post-mortem report as Pexhibit 1.

11. PW7, Joseph Kimani Maina, stated that the deceased was his brother and the appellant was his deceased brother’s wife. He testified that on 20th October 2018, he received a call from a neighbor informing him that the deceased had been stabbed. He then made his way to the location he was directed to, approximately 20 meters away, and found the deceased bleeding. He proceeded to the deceased’s house, which was about 10 meters away, and found the accused outside with items wrapped in a Maasai kikoi. When he asked her why she had stabbed the deceased, she turned, revealing a knife in her hand. He decided to grab the knife from her, which he managed to do with the help of his wife. He testified that while struggling to take the knife from the accused, he sustained a cut on his left arm. He further testified that he took the accused to where the deceased was lying and asked her to assist in taking him to the hospital. When they reached the road, a vehicle arrived and took them to Thangari dispensary. They were advised to transfer the deceased to Mukurwe-ini Sub-County Hospital, where he was pronounced dead.

12. PW7 also testified that they then went to Mukurwe-ini Police Station, and the police officers immediately went to the house and took photographs of the scene. He stated that the police who took the photos asked him to fetch other clothes for the accused, as the ones she was wearing were blood-stained, so he returned to the house to retrieve other clothes. He stated that the accused was wearing jeans, a t-shirt, and rubber shoes. He further stated that he did not witness the stabbing or see anyone else at the scene. He also mentioned that the deceased and the accused lived together and had quarreled four days earlier, during which the appellant had left the house, but he did not know when she returned. PW7 identified the t-shirt, knife, and three photos, which had been marked for identification.

13. During cross-examination, he stated that he was not present when the deceased was stabbed, and that it was the appellant who was found with a knife and blood-stained clothes. When he wrestled her and took the knife, he took her to where the deceased was lying and from there went to hospital.

14. PW8, Samuel Ngure Mwangi, testified that the deceased was his neighbor and that the appellant was the deceased’s wife. He testified that on 21st October 2018, at about 10 p.m., he heard a knock on the door and someone saying, "he has been finished." He recognized the voice as that of the deceased. He stated that he did not think much of it until his wife woke him up and told him that it appeared the deceased had fallen outside their door. Upon inspection, he found the deceased lying on the ground, with blood flowing from his side. He called the village elder to help take the deceased to the hospital. After making some phone calls, the deceased’s brother, PW7, arrived and informed him that he had been told the deceased was stabbed by the appellant. He further testified that PW7, the appellant, along with the help of neighbors, carried the deceased to a car. They first went to the AP camp, then to the dispensary, and finally to Mukurwe-ini, where the deceased was pronounced dead. He stated that he did not witness the appellant stabbing the deceased. During cross-examination, he stated that Kimani was the one who went and brought the appellant and that it was the appellant who was trying to carry the deceased.

15. PW9, Kipng’etich Bernard, a government analyst at the Government Chemist, stated that the blood samples received from a blood-stained knife, a red t-shirt, and the blood taken from the deceased were identical. To support his testimony, he produced a report which was marked PExhibit 6. During cross-examination, he clarified that the t-shirt was red, not green.

16. PW10, Risper Rima Gitonga, stated that she was a neighbor to both the deceased and the appellant. She testified that on 20th October 2018, she heard a noise on the road, with someone saying, "Ni kunidunga umenidunga?" to which she heard a reply, "Unitupe tena uone." She stated that shortly afterward, she heard the deceased call out her husband’s name, Samuel Ngure Mwangi, informing him that he had been stabbed. She stated that when they went outside, they found the deceased outside their compound, bleeding, at which point she screamed and went to call the deceased’s brother Kimani. She further stated that Kimani then brought the appellant, who was holding a knife. She added that the deceased and the appellant, used to drink and fight frequently. She also testified that the appellant was wearing a red t-shirt and that the knife was green with a broken handle. During cross-examination, she stated that she had heard the accused quarrel with the deceased and that she could not mistake their voice.

17. PW11, Dr. Kamau, testified that on 26th October 2018, upon examining the suspect for a mental assessment, he concluded that she was mentally fit to stand trial. He produced the Psychiatric Report as PExhibit 7. During cross-examination, he stated that he conducted the assessment at Juja Police Station.

18. Pw12, Senior Sergeant Emphantus Njuguna, testified that on 21st October 2018, while returning from patrol, he found the AP camp crowded with people and a Nissan vehicle parked there. When he asked the driver about the situation, he was informed that there was an injured person who had been stabbed. He stated that he placed the suspect in the cell and then took the deceased to Thangathi Health Centre. He further testified that the deceased brother handed them the knife that was allegedly used to stab the deceased. He also stated that they were later informed that the deceased had died. Additionally, together with the DCIO and OCS, they went to the crime scene, where they found blood on the ground. He testified that the accused was wearing a red t-shirt that was stained with blood. During cross-examination, he stated that the appellant was taken to the police post as a suspect in the stabbing of the deceased.

19. PW13, Corporal Josphat Mbulu, testified that on 21/10/2018, he was informed of a serious injury in the Thangathi area and subsequently went to Mukurweini, where the victim had succumbed. He stated that, together with the DCIO and OCS, they proceeded to the Thangathi AP Post, where the appellant, who was a suspect at the time, had been arrested and detained. Corporal Mbulu testified that the accused was called from the cell and was wearing a blood-stained red t-shirt. The officers at the post produced a broken, blood-stained knife with a green handle, which was said to have been recovered from the deceased's brother. He further stated that he then transported the suspect to Mukurweini Police Station, where he booked her and escorted her for a mental assessment, which determined she was fit for trial. Additionally, he mentioned that photographs were taken, and a post-mortem report was completed. The cause of death was excessive bleeding from the right thigh. Corporal Mbulu also noted that the pathologist collected samples from the deceased.

20. PW13 testified that during his investigations, he learnt that the deceased and the appellant were both at Thangathi center. The appellant left the center and proceeded to their matrimonial home. The deceased followed with another motorbike in company of another woman. That on arrival, chaos erupted between the appellant and the deceased over the new woman. That during the fight the appellant picked a knife and stabbed the deceased in the right thigh. He stated that he did not manage to find the other woman. He further stated that at the scene, he saw blood on the ground from the house and the compound of Samuel Ngure, their neighbour where the deceased sought refuge. He produced the knife PExhibit 2 handed to him by the arresting officer who recovered it from the deceased’s brother. Also produced were the Red Tshirt- PExhibit 3, Exhibit Memo dated 26/10/2018 PExhibit 4, Exhibit Memo dated 30/10/2018 PExhibit 5, 3 Photos PExhibit 8 and Certificate PExhibit 9.

21. With these 13 witnesses, the prosecution closed its case. Following this the trial court found that the prosecution had establish a prima facie case and the appellant was placed on her defence. However, the accused opted to remain silent as per Section 211 of the Criminal Procedure Code.

22. Ultimately, the appellant was convicted under section 215 of the Criminal Procedure Code on the offence of manslaughter. On sentencing the trial court considered all mitigating factors and the probation report and in noting the gravity of the offence, the accused was sentenced to serve 15 years imprisonment.

D. The Appeal 23. The appeal is as set out in the earlier paragraphs of this judgment. The appellant seeks that her conviction be quashed and the 15 years imprisonment sentence set aside. The appellant seeks to rely on her undated written submissions filed on 29/7/2022, while the respondent relies on its submissions dated 5th October 2022. The parties’ submissions are as follows:

a. Appellant’s Submissions 24. The appellant submission on ground one and two of the appeal is that this case rests on circumstantial evidence and the prosecution only charged her because she was found in her matrimonial house. She further submits that the other lady being referred to was not presented to court which was wrong and ought to have been done. She submits that the prosecution failed to prove the hypothesis of the scene as no evidence was adduced of the time the chaos erupted, and on how the other lady friend disappeared out of the scene. She relies on the cases of Mbithi s/o Kisoi v Republic and Sweet Palsly v Republic and urges this court to find that, she was to be a witness and not a villain.

25. On grounds 3 and 4 the appellant submitted that the prosecution’s evidence had contradictions and inconsistencies. She submitted that the prosecution failed to put into consideration that the knife was a detrimental item to give the final outcome. She further submits that there is contradiction between the words that the deceased said as testified by PW7 and PW8 which contradiction should have dismissed their evidence as their credibility is in question. She submits that the evidence of the government analyst is inadmissible as it cannot squarely settle the core issues of the scene. The Appellant relies on the cases of Oketch Okale and others v Republic [1965] and Cherere s/o Gakuli v Republic [1995] eKLR.

26. On ground five, the Appellant submitted that there was insufficient proof to attain a conviction as there was doubt created by the evidence as highlighted by the Appellant and therefore the court should acquit her. The Appellant relies on the case of Woolmington v DPP [1935] AC 462 HL Viscount Sankey LC and the case of Bater v Bater 1950 ALL ER 458 & 459.

27. On the sentence being manifestly harsh and excessive, the Appellant submits that there was no compelling reason to prove that she was not qualified to have a non-custodial sentence; there was no divorce certificate. Additionally, the appellant submits that the prosecution did not prove the charge and urges this court to consider all the irregularities that she has pointed out to allow the appeal.

b) Respondent’s Submissions 28. The respondent opposed the appeal in its entirety and submits on four grounds, that is, whether the prosecution discharged its burden of proof to the required standard, whether the appellant’s defence (if any) was considered, whether the sentence was judicious in the circumstances and the issues raised by the Appellant in her submissions.

29. On whether the prosecution discharged its burden of proof to the required standard, the Respondent highlights the provisions of Sections 202, 205 and 207 of the Penal Code and relied on the cases of Palmer v Republic [1971] AC & 814 and the case of Mungai v Republic [1984] eKLR 85 to set out, the ingredients of manslaughter.

30. The Respondent submitted that it is not in doubt that the appellant caused the death of the deceased based on the dying declaration. Further, that the deceased and the appellant had been in a relationship which had been tumultuous for a long time. It was submitted that no one really saw what happened but the circumstantial evidence is so overwhelming to put the appellant as the guilty person. Reference was made to the case of Sawe v Republic(2005) eKLR 364 to urge the court that they had proved an inference of guilt in case of circumstantial evidence.

31. The respondent submitted that as intimated under section 207 of the Penal Code, the appellant in the heat of passion caused by sudden provocation by the deceased in bringing another woman to their matrimonial home at night caused the death of the deceased. The Respondent submits that the prosecution proved its case to the required standard and the circumstances are those contained in Section 202 of the Penal Code.

32. On whether the Appellant’s defence was considered, the Respondent submits that contrary to what the Appellant stated in Ground 5 of the Ground of appeal, she elected to remain silent and did not tender any defence and therefore the prosecution case remains unchallenged.

33. On whether the sentence was judicious in the circumstances, the Respondent submits that the trial court exercised its discretion judiciously and in noting that the Appellant was not remorseful, the trial court issued a sentence that was commensurate with the gravity of the offence. On the issues raised in the appellants submissions, the Respondent submits that it has sufficiently covered all the grounds and therefore, the appeal be dismissed.

E. Analysis and determination 34. This being a first appeal, this Court has a duty to reconsider and re-evaluate the evidence adduced before the trial court and make its own independent conclusion. It should however give regard to the fact that it has neither heard nor seen the witnesses testify. See the cases of Pandya v R {1957} EA 336; Ruwalla v R {1957} EA 570 and Kisumu Criminal Appeal No. 28 of 2009 David Njuguna Wairimu v. Republic [2010] eKLR where the Court of Appeal held that:‘’ the duty of the first appellate court is to analyse and re- evaluate the evidence which was before the trial court and itself come to its own conclusion on that evidence without overlooking the conclusion of the trial court. There are instances where the first appellate court may depending on the facts and circumstances of the case, come to the same conclusion as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.’’

35. Having considered the record of appeal as well as the submissions by parties, I discern the following three issues for determination: -a.Whether the prosecution discharged its burden of proof to the required standard;b.Whether there were contradictions and inconsistencies in the prosecution’s evidence; andc.Whether the sentence was harsh

a. Whether the prosecution has discharged its burden of proof to the required standards 36. Section 202 (1) of the Penal Code provides that “Any person who by unlawful act or omission causes the death of another person is guilty of the felony termed manslaughter.” Section 202 (2) provides that an unlawful omission is an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health, whether such omission is or is not accompanied by an intention to cause death or bodily harm.

37. Section 205 of the Penal Code provides that any person who commits the felony of manslaughter is liable to imprisonment for life. In the case of Mungai v Republic [1984] eKLR 85 the ingredients of manslaughter were set out as follows;a)an unlawful act which causes the death of another person andb)the unlawful act causing death was devoid of malice aforethought and could be either of the following: - the perpetrator kills out of provocation, out of diseases of mind/insanity, kills out of drugs/intoxication, kills out of duress/coercion.

38. Did the appellant commit the unlawful act that caused the death of the deceased? From the evidence before this court, none of the prosecution's witnesses directly saw the appellant stabbing the deceased or inflicting the injury as described in the post-mortem report. This matter purely rests on circumstantial evidence. The law as to the principles to be applied by the courts when considering such evidence is well settled. See the cases of Kipkering Arap Koskei and another vs. R. [1949] 16 EACA 135; Pravin Singh Dhalay v. R. – Cr. A. 10/97 (unreported) following Teper V Reginam (1952) AC 480; Sawe v Republic [2003] eKLR. In summary, the evidence must satisfy three tests namely: -i.The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established.ii.Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused.iii.The circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.

39. In this instance PW6 produced a post-mortem report, marked as PExhibit 1, which showed that the deceased died from hemorrhage secondary to reverent vessels and penetrating cut wound secondary to assault, in other words, excessive bleeding due to severance of major vessels, specifically a stab wound on the right thigh. Based on the above, the narration of evidence by the prosecution witnesses, which was not controverted, it is evident that the deceased death was caused by an unlawful act of bleeding due to stab wound on the right leg/thigh.

40. As to whether the act of stabbing the deceased was devoid of malice afore, we underscore that this case is anchored heavily on circumstantial evidence. The circumstances leading to the death of the deceased as stated by the prosecution evidence is as follows; PW1 and PW2 placed the appellant and the deceased at the scene of crime at Thangathi Center. Their evidence confirms that the appellant and the deceased were at the same vicinity on the eventful day.

41. This is further corroborated by evidence of PW8 and PW10 who testified that the deceased called them out and informed then he had been stabbed. PW8 testified that he heard the deceased state that, “He has been finished” but did not bother much until when his wife PW10 went to call him, telling him that it appeared that the deceased had fallen outside their house. When he went to check he found blood flowing from the side of the wall where the deceased was lying. He then called for help.

42. Further, PW10 testified that she heard noise from outside, then heard the deceased stating, “Ni kunidunga umenidunga” and that the appellant responded that, “Unitupe tena uone”. After a short while the deceased came to call her husband PW8 that he had been stabbed. That when they went outside, they found that the deceased had fallen and was bleeding. She then went to call the deceased brother PW 7.

43. PW7 confirmed that, upon being informed of his brother’s condition, he rushed to his brother’s house and found the appellant preparing to leave, and when she turned, he saw a knife in her hand. PW7 then wrestled her and grabbed the knife. The knife broke and was later identified as the weapon used to stab the deceased. PW7 stated that after the struggle with the appellant, he took her to the place where the deceased was lying and asked her to help take the deceased to the hospital.

44. The trial court noted that the medical evidence adduced and particularly the DNA sampling on both the knife and T-shirt matched the blood samples taken from the deceased and samples from the accused. The court also noted that even if one was to discount the t-shirt due to the fact that she may have got the blood stains from carrying the deceased towards the road as he was being assisted to hospital, the knife tells it all.

45. This court also notes that the Appellant was found with the alleged weapon used to inflict the deceased wound. This was confirmed by PW9, the government chemist who stated that the blood found on the alleged weapon and the blood taken from the deceased matched. Hence the appellant argument that she was charged because she was found in the matrimonial home does not hold.

46. Turning on to the argument that the prosecution did not present evidence on how the chaos erupted and how the other lady friend disappeared. This court notes that in every prosecution the number of witnesses presented to court is not of any consequence. What is important is for the witnesses presented to demonstrate that the respective ingredients of the offence have been met and meet the threshold of beyond reasonable doubt. Indeed, it is not the multiplicity of witnesses called that proves a fact, but the credibility and admissibility of the evidence presented by the witnesses called. It needs no emphasizing that the prosecution reserves the right to determine which witnesses it intends to calls to prove its case. The only check is that crucial witnesses, whose evidence may impugn the prosecution’s case and help the accused’s case should not be excluded. In this case, it is not alleged that the “alleged other woman” was a crucial witness. It was never the prosecution’s case that that other woman was at the scene during the stabbing. The appellant herself never stated before the trial court that the other woman was present. Notably, she exercised her constitutional right and chose to remain silence.

47. Having gone through the record, I do agree with the findings of the trial court that the generality of the evidence adduced clearly paint out the events leading to the death of the deceased. The chain of events leading to the demise of the deceased all point towards one conclusion: that the deceased succumbed due to stab wound inflicted by the appellant on his thigh. I agree that the prosecution proved the offence of manslaughter beyond reasonable doubt. I find no reason to disturb the finding of the trial court.

b. Whether there were contradictions and inconsistencies in the prosecution case 48. It is trite law that not all discrepancies and inconsistencies are fatal to the prosecution case. The discrepancies must be of such gravity that they prejudice the accused. In Mwangi v Republic [2021] KECA 345 (KLR) it was held:“34. On the alleged failure of the first appellate court to address inconsistencies, glaring gaps and extenuating gaps, the position in law and which we fully adopt is as was stated, inter alia by the court in Joseph Maina Mwangi vs. Republic Criminal Appeal No. 73 of 1993,that:“In any trial, there are bound to be discrepancies and any appellate court in considering those discrepancies must be guided by the wording of section 382 of the Criminal Procedure Code to determine whether such discrepancies are so fundamental as to cause prejudice to the appellant or they are inconsequential to the conviction and sentences…”

49. Consequently, the issue is whether in this matter, there were indeed contradictions and inconsistencies and whether the said inconsistencies and contradictions were of such a degree that they prejudiced the appellant.

50. The appellant alleges that the contradictions arise in that the prosecution failed to put into consideration that the knife was a detrimental item that ought to have been used when making the blood sample analysis. Similarly, the deceased green t-shirt and the appellant’s t-shirt. She further submits that there is contradiction between the words that the deceased said as testified by PW7 and PW8 which contradiction should have dismissed their evidence as their credibility is in question. She submits that the evidence of the government analyst is inadmissible as it cannot squarely settle the core issues of the scene.

51. From the foregoing and the evidence on record, I do not find any contradiction in the evidence as alleged. Instead, I do find that the evidence as presented shows that PW7 stated that he was called by a neighbour and informed that his brother had been stabbed. That by the time they got there the deceased was not talking but was bleeding on the lower parts but he could not tell from which specific place. I do not find any contradiction in this statement with that of PW8. Instead, I find the testimony of PW7 and PW8 as corroborating each other and go into explaining the circumstances of what transpired.

52. I also take cognizant that as an appellate court I did not have the advantage of seeing the demeanor of the witnesses. Thus, the trial court having observed and found the testimonies credible, I find no reason to disturb this finding. I also find that the appellant has failed to demonstrate the existence of any glaring contradictions and inconsistencies and whether the said inconsistencies and contradictions were of such a degree that they prejudiced the appellant. Consequently, this ground also fails.

c. Whether the sentence was harsh 53. It is common ground that sentencing is within the trial court’s discretion as was stated by the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR where it was stated that:“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.”

54. It is well settled that as an appellate court I should not interfere with the discretion which a trial court extended as to sentence unless it is evident that it overlooked some material factors, took into account some immaterial factors, acted on the wrong principle or the sentence is manifestly excessive in the circumstances of the case.

55. As per section 205 of the Penal Code, the penalty for the offence of manslaughter is life imprisonment. The appellant was sentenced to 15 years imprisonment after the trial court considered the mitigating factors. The appellant herein submitted that there was no compelling reason to prove that she was not qualified to have a none custodial sentence.

56. Given that sentencing is a question of discretion which should only be interfered with when meted under the wrong principle or when it is manifestly excessive in the circumstances, it is therefore not just enough to say that there was no compelling reason to prove that she did not qualify to have a none custodial sentence. The appellant ought to have shown how the trial court erred. I note the trial court in sentencing, noted the gravity of the offence, the mitigating factors and proceeded to sentence the appellant to 15 years imprisonment which is way below the life imprisonment set out by law. I will therefore not interfere with the sentence.

57. The upshot of the appeal therefore is that I find no merit in this appeal which is hereby dismissed. The conviction and sentence is hereby upheld.Orders accordingly.

RHODA RUTTOJUDGEDELIVERED, DATED AND SIGNED THIS 11TH DAY OF SEPTEMBER, 2024. For Appellants:For Respondent:Court Assistant: