https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7517

**IN THE COURT OF APPEAL AT KISUMU** **(CORAM: ASIKE-MAKHANDIA, OMONDI & KIMARU, JJ.A)** **CRIMINAL APPEAL NO. E071 OF 2022** **BETWEEN** **MUSA KWEMOI APPELLANT** **AND** **REPUBLIC RESPONDENT** ***(****Being an appeal against the conviction and sentence of the High Court of Kenya at Bungoma (Ali-Aroni, J.) dated 6th April, 2017* ***in*** ***HCCRC No. 24 of 2011)*** ***\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\**** **JUDGMENT OF THE COURT** 1. The appellant, **Musa Kwemoi**, was arraigned before the High Court of Kenya at Bungoma and charged with the offence of **murder** contrary to **Section 203** as read with **Section 204** of the **Penal Code**. He was alleged to have murdered one **Ruth Cheptengan**, on 30th September, 2011, at Sosablel Village, in Chepyuk Location, within Bungoma County. He denied the charges. 2. Briefly, the prosecution’s case was as follows: The appellant and the deceased were siblings, the deceased being eight (8) years old at the time of her death. The evidence of their siblings, namely **Naomi Cherop** (PW5), **Micah Kiptoo** (PW6) and **Enock Kimutai** (PW7), was that on 30th September, 2011, the appellant left the family home in the company of the deceased after asking her to accompany him to a nearby shop where he intended to buy soap. According to the witnesses, a few minutes later, the deceased briefly returned home and informed them that the appellant had instructed her to fetch his jacket. She collected the jacket and thereafter left again. The witnesses testified that this was the last time the deceased was seen alive. The appellant also failed to return home thereafter. 1. PW6 testified that a few days later, the appellant secretly returned home and instructed him to retrieve a bag from the house while ensuring that no one saw him do so. PW6 complied with the request. The appellant then asked PW6 to accompany him to their aunt’s home at Kapsikirok, but PW6 declined. PW7 testified that after PW6 handed the bag to the appellant, the appellant in turn gave the bag to him and instructed him to take it to a place called Stuka, where the appellant later followed him. They stayed there for several days. On 5th October, 2011, their sister, **Miriam** (PW2), visited them at Stuka and inquired from the appellant about the whereabouts of the deceased. The appellant responded that after purchasing the soap, he had sent the deceased back home. Upon PW2 persistently questioning the appellant why the deceased had not returned home, the appellant allegedly told her that perhaps their mother had strangled the deceased and disposed of her body in a nearby maize plantation. 1. PW1, **Beatrice Yego**, their mother, testified that on the material date, she left home at about 9.00 a.m. and returned at approximately 4.00 p.m. Upon her return, her daughter, PW5, informed her that the appellant had left the house with the deceased under the pretext of going to purchase soap from a nearby shop, and that neither of them returned home that day. PW1 initially assumed that they had spent the night at the home of her other daughter, **Irene.** 2. On 3rd October 2011, PW1 sent another of her daughters, **Naomi,** to **Irene’s** residence to ascertain whether the appellant and the deceased were there. **Naomi** returned the following morning and informed PW1 that **Irene** had stated that only the appellant and **Enock** were at her house, and that the deceased was not there. Concerned by the disappearance, PW1 reported the matter at APS Camp, Kubra. 1. PW1 thereafter sent her daughter, **Miriam** (PW2), to the appellant’s father’s home, as the appellant had also failed to return home after leaving with the deceased. **Miriam** later informed PW1 that she had found the appellant there, but not the deceased. When **Miriam** inquired from the appellant about the deceased’s whereabouts, the appellant allegedly told her to ask PW1, suggesting that she may have strangled the deceased and disposed of the body in a maize plantation. Alarmed by the appellant’s response, PW1 proceeded to report the matter at Kipsigon Police Station, following which the appellant was arrested. 2. According to PW1, her husband, **Felix Ndiema** (PW3) and PW4, Inspector **Chrispin Nyaga** (investigating officer), the appellant, upon his arrest, confessed to having killed the deceased and disposing of her body in a nearby maize plantation. He further offered to lead the police officers to the location where he had dumped the body. While enroute, they came upon Keremi River. The appellant pointed out the spot where the deceased’s body had been dumped and immediately thereafter jumped into the river and disappeared beneath a bridge. 3. Some of the police officers proceeded to the location indicated by the appellant and recovered the deceased’s body. PW4 then enlisted the assistance of members of the public, and together they managed to retrieve the appellant from the river. Upon being questioned by PW4 as to why he had jumped into the river, the appellant stated that he feared being lynched by members of the public once the deceased’s body was recovered. The body was recovered on 7th October, 2011. PW4 testified that when they recovered the deceased’s body, they noted that her hand and legs were tied, and her mouth was stuffed with paper to prevent her from screaming. Her body was taken to Webuye Mortuary for post mortem examination. 4. PW8, **Dr. Wambasi Mutoro,** testified on behalf of **Dr. Ouma** who conducted the post mortem examination of the deceased’s body. It was his testimony that the deceased’s hands had been tied together to her neck from behind using a piece of cloth, while her legs had also been bound together. He further observed that the deceased’s tracheal bones were fractured and that there was generalized swelling on the head. He concluded that the cause of death was pulmonary arrest due to strangulation. 5. The appellant, in his defence, denied causing the death of the deceased. He told the court that on the material date of 30th September, 2011, at 7.00 a.m., he went to see his mother (PW1) at her house. When he got there, he found PW1, his step-dad (PW3) as well as his siblings, including PW2, PW5, PW6 and PW7. According to the appellant, PW1 requested him to construct a house at her homestead, but he declined, explaining that his relationship with PW1 and PW3 had been strained since he moved out of their home. He further stated that he requested PW1 for money to enable him seek medical treatment, but she instead instructed him to sell maize and retain the proceeds. 6. The appellant testified that he was required to assist PW3 in uprooting potatoes intended for sale at the market and therefore sent PW7 to sell the maize on his behalf. They allegedly agreed to meet later at a place called Kimutio, where PW7 would hand over the money. He stated that PW7 left in the company of the deceased. The appellant further testified that when he later arrived at Kimutio, PW7 was not there. He then proceeded to the home of his sister, **Irene,** where he had lunch. After some time, he sent **Irene’s** son to check whether PW7 had arrived. The boy later returned together with PW7, who handed over the proceeds from the maize sale after deducting the amount used to purchase *mahamri* and soap for the deceased. Thereafter, the appellant left for his aunt’s home. 1. The appellant further stated that on 5th October 2011, PW2 informed him that the deceased was missing. The following day, he decided to accompany PW2 and Irene back home in an effort to trace the whereabouts of the deceased, but was arrested along the way. He alleged that the police assaulted him and demanded to know where the deceased was. The next day, he was transferred to Kopsiro Police Station, where he was informed that the deceased’s body had been recovered, and that he was the prime suspect. According to him, he was a suspect simply because he had sent the deceased on an errand. The appellant maintained that his relationship with PW1 and PW3 had been strained since 2007, following PW1’s marriage to PW3. He denied killing the deceased and stated that he had no reason whatsoever to harm her. Upon cross- examination, the appellant denied making the statement attributed to him that indicated that he had agreed to lead the police officers to the location where the deceased’s body had been dumped. He denied knowledge of how the body of the deceased was recovered as he was in custody at that time. 1. At the end of the trial, the trial court (Aroni, J.), found that the prosecution had established the case against the appellant to the required standard of proof beyond any reasonable doubt, and that the circumstantial evidence pointed to no one else but the appellant as the person who murdered the deceased. The appellant was consequently convicted and sentenced to death. 2. Aggrieved by this decision, the appellant lodged an appeal before this Court. In his memorandum of appeal, the appellant challenged his conviction and sentence on four grounds. In summary, the appellant contended that the circumstantial evidence adduced was insufficient to sustain a conviction; that the learned Judge applied wrong legal principles and drew erroneous conclusions. On sentence, he argued that the mandatory death sentence imposed upon him was unconstitutional and should therefore be reconsidered. 3. The appeal was heard by way of written submissions. **Mr.** **Menezes** appeared for the appellant. It was his submission that according to the evidence of PW1, the deceased was assaulted and defiled before being murdered. He faulted the investigating officer for failing to carry out a forensic examination, and specifically dust for finger prints from the deceased’s body, so as to identify the perpetrator. He submitted that no direct evidence was led to connect the appellant to the offence; the circumstantial evidence relied on was insufficient to sustain a conviction. He contended that PW7 had testified that he left with the deceased to sell maize, and that it was not clearly established at what time the deceased later returned home. He therefore argued that it could not be conclusively proved that the appellant was the last person seen with the deceased. He maintained that the evidence of PW6 contradicted that of PW7, which further weakened the circumstantial evidence, and thereby made the appellant’s conviction unsafe. 1. On sentence, counsel submitted that the appellant was not given an opportunity to tender his mitigating circumstances before he was sentenced by the trial court, which was against **Sections 215** and **216** of the **Criminal Procedure Code**. He explained that the mandatory death sentence imposed upon the appellant was outlawed by the Supreme Court, and that the trial court ought to have considered the appellant’s mitigation, before imposing an appropriate sentence. 1. The appeal was opposed. **Ms. Matere**, learned principal prosecution counsel, was on record for the respondent. It was her submission that the trial court correctly relied on circumstantial evidence to convict the appellant, and that the elements forming the offence of **murder** were sufficiently established. She explained that according to the evidence of PW2, PW4, PW6 and PW7, the appellant left home with deceased under the guise of going to a nearby shop, after which the deceased was not seen alive again. She submitted that the response of the appellant when he was asked about the whereabouts of the deceased was unusual, further, that the appellant later confessed to PW4 that he killed the deceased. She submitted that the appellant led the police to the place where the deceased’s body was recovered. Counsel agreed with the finding of the learned Judge that the manner in which the deceased was killed established malice aforethought. 2. On sentence, **Ms. Matere** conceded that from the record, it was not clear whether the appellant was given an opportunity to mitigate before being sentenced. She cited a decision of this Court in ***Mohammed Hussein Mohammed v Republic [2019]*** ***KECA 998 (KLR***) and submitted that the court in that case upheld the sentence meted by the trial court, despite the fact that the appellant was not heard on mitigation. She urged us to affirm the sentence by the trial court, but in the event we were persuaded otherwise, to order for a retrial, considering the seriousness of the offence. 1. We have anxiously considered the record of appeal, the grounds of appeal, the rival submissions of counsel, and the applicable law. This being a first appeal, it is our duty to subject the entire evidence to a fresh and exhaustive evaluation, bearing in mind that we did not have the advantage of seeing or hearing the witnesses testify, while at the same time giving due allowance for the trial court’s findings. (*See* ***Gabriel Kamau Njoroge v Republic [1987] eKLR)*.** 2. The central issue for determination is whether the conviction of the appellant for the offence of **murder** was founded on sufficient and reliable evidence, and whether the sentence imposed should be interfered with. 3. It is not in dispute that there was no direct eyewitness evidence linking the appellant to the death of the deceased. The prosecution case was therefore wholly circumstantial. It is trite law that where a case rests on circumstantial evidence, such evidence must be tightly woven, forming a complete chain which irresistibly points to the guilt of the accused and excludes any other reasonable hypothesis consistent with his innocence. Any gap in the chain is fatal to the prosecution’s case. These principles were aptly affirmed by this Court in ***Abanga alias Onyango v. Republic Cr. Appeal No. 32 of 1990*** as follows: ***“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:*** * 1. ***the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established*** 2. ***those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;*** 3. ***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.”*** 1. Further, this Court in the case of ***Ahamad Abolfathi Mohammed & another v Republic [2018] KECA 743 (KLR)*** pronounced itself as follows on circumstantial evidence: ***“However, it is a truism that the guilt of an accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can*** ***form a strong basis for proving the guilt of an accused person just as direct evidence.”*** 1. From the record, the evidence of PW5 and PW6 was consistent on the material point that on 30th September 2011, the appellant left the family home in the company of the deceased, having told her to accompany him to a nearby shop to purchase soap. Shortly thereafter, the deceased briefly returned to collect the appellant’s jacket and left again while in his company. From that moment, she was never seen alive again. The appellant, significantly, did not return home on the material day. We are satisfied that this evidence firmly establishes the doctrine of last seen. Once it is established that an accused person was last seen with the deceased in circumstances pointing to personal custody or control, a duty shifts to the accused to offer a plausible explanation as to what transpired. In the present case, no satisfactory explanation was forthcoming from the appellant that displaced this strong inference. The principle has been applied by our courts by virtue of *Section111(1)* of the Evidence Act which provides that: ***“(1) When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of*** ***proving any fact, especially within the knowledge of such person is upon him: Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether in cross- examination or otherwise, that such circumstances or facts exist Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt of the accused person in respect of that offence.”*** See ***Kimani v Republic (Criminal Appeal 41 of 2022) [2023] KECA 1390 (KLR)*** 1. The chain of circumstances did not end there. The conduct of the appellant after the disappearance of the deceased was highly demonstrative of his guilt. First, he went into hiding and failed to return home. Secondly, when confronted by PW2, he did not give a straightforward account but instead deflected blame onto PW1 by suggesting she may have strangled the deceased and dumped her body in a nearby maize plantation. That assertion was demonstrative of an attempt to mislead and deflect inquiry. 2. Thirdly, and most significantly, the evidence of PW1, PW3 and PW4 established that upon arrest, the appellant led police officers to the area where the deceased’s body was recovered. The appellant had special knowledge where the deceased’s body was. The trial court, correctly in our view, drew the inference that the deceased knew where the body of the deceased was because he was the one who had dumped it there. Crucially, the appellant had earlier told PW2 that their mother may have dumped the deceased’s body in a maize plantation. The deceased’s body was in fact recovered from that very same maize plantation. This coincidence is too striking to be ignored. The natural and irresistible inference is that the appellant was not making an innocent or speculative statement, but was speaking from knowledge of the actual disposal site of the body. The question that arises, and which the appellant never satisfactorily answered, is how he could have known the precise location of the body if he had no involvement in its disposal. 1. This circumstance corroborated the prosecution’s case and further tightened the chain of circumstantial evidence against the appellant. It eliminated any reasonable possibility that the reference to the maize plantation was a mere guesswork or coincidence. 2. Further incriminating evidence was the appellant’s conduct at the scene of crime. Upon reaching Keremi River, he pointed out the recovery site and immediately jumped into the river, disappearing beneath a bridge, only to be later retrieved from the river with the assistance of members of the public. His explanation that he feared that he would be lynched was, in our view, consistent with that of a guilty mind. 1. The appellant’s argument that PW7’s evidence introduced uncertainty as to the last person seen with the deceased does not hold. The evidence of PW5 and PW6 was clear and consistent that they were at home with the appellant and the deceased, and that it was the appellant who was the last person seen with the deceased. 2. The post mortem report revealed that the deceased had been bound, her mouth stuffed, and her tracheal bones fractured, with cause of death being pulmonary arrest due to strangulation. We agree with the finding of the learned trial Judge that the brutality and deliberate nature of the injuries, inflicted upon an eight-year-old child, left no doubt that malice aforethought was established within the meaning of **Section 206** of the **Penal Code**. 3. We have re-evaluated the appellant’s defence. Although the appellant denied having implicated PW1, the record showed that his statement to PW2 that PW1 may have dumped the body in a maize plantation was corroborated by PW7, who was present during the conversation. That corroboration lends further credibility to PW2’s account and reinforces the inference that the appellant was not speaking in a vacuum but from knowledge of the circumstances surrounding the death and disposal of the body of the deceased. His defence that he did not lead the police to the location where the deceased’s body was recovered was not credible in light of evidence adduced by several prosecution witnesses. The appellant’s defence, considered in its entirety, did not displace the prosecution’s case. It was a bare denial which failed to answer the strong circumstantial chain established by the prosecution. The learned trial Judge correctly dismissed the same as bereft of credibility. 1. In the premises, we are satisfied that the trial court properly evaluated the evidence and correctly applied the law. The circumstantial evidence formed a complete and unbroken chain pointing irresistibly to the appellant as the perpetrator of the offence. The conviction was therefore safe. We also reiterate that DNA or forensic evidence is not a prerequisite for conviction where, as here, the circumstantial evidence is cogent, credible, corroborative and complete. The appeal on conviction therefore lacks merit and is hereby dismissed. 1. On sentence, the record is not clear whether the appellant was afforded the opportunity to mitigate before sentence was imposed. This, in our view, amounted to violation of the appellant’s right to a fair trial as guaranteed under **Article 50** of the **Constitution**. We hold the view that mitigation is not a mere procedural formality; it is a substantive component of sentencing, and failure to afford an accused person the opportunity to be heard in mitigation before being sentenced offends the principles of fair hearing. 2. We also take judicial notice that the sentence was imposed at a time when the death penalty was treated as mandatory for the offence of **murder**, prior to the landmark jurisprudential intervention of the Supreme Court in ***Francis Karioko Muruatetu & another v Republic [2017] eKLR***. 3. Consequently, in determining whether to interfere with the death sentence, we are inclined to bear in mind the following guidelines, though not exhaustive, with respect to mitigating factors as set out in the ***Muruatetu*** (*supra*) decision: 1. ***age of the offender;*** 2. ***being a first offender;*** 3. ***whether the offender pleaded guilty;*** 4. ***character and record of the offender;*** 5. ***commission of the offence in response to gender-based violence;*** 6. ***remorsefulness of the offender;*** 7. ***the possibility of reform and social re-adaptation of the offender;*** 8. ***any other factor that the Court considers relevant.*** 9. Taking these factors into account, while bearing in mind the gravity of the offence, and the fact that the appellant spent approximately five and half years in remand custody, we are inclined to interfere with the sentence imposed by the trial court. We had considered whether in the circumstances of this appeal it was prudent to refer back the case for resentencing by the trial court. However, taking into consideration the period that the appellant has been in lawful custody and the fact that during the hearing of this appeal he gave his mitigation in his submission, we are of the considered view that it will serve the interest of justice for this court to sentence the appellant. Accordingly, the sentence of death that was imposed by the trial court is set aside. In its place, we substitute a custodial sentence of twenty (20) years’ imprisonment, to be computed from the date the appellant was arraigned before the trial court for plea. 1. The appeal on sentence therefore succeeds only to that extent. **Dated and delivered at Kisumu this 29thday of May, 2026.** **ASIKE-MAKHANDIA** **................................ JUDGE OF APPEAL** **H.A. OMONDI** **............................... JUDGE OF APPEAL** **L. KIMARU** **............................... JUDGE OF APPEAL** **I certify that this is a true copy of original.** **DEPUTY REGISTRAR.**