https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1083

Mwandiki & another v Republic (Criminal Appeal E029 of 2022) [2026] KECA 1083 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KECA 1083 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E029 of 2022 MS Asike-Makhandia, HA Omondi & LK Kimaru, JJA May 29, 2026 Between Brian Mwandiki 1st Appellant Jairus Juma 2nd Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Bungoma (S.N. Riechi, J.) dated 27th July, 2021, in HCCRC No. 38 of 2018 Criminal Case 38 of 2018 ) Judgment 1.The appellants, Brian Mwandiki and Jairus Juma, were charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence were that on 16th November, 2018, at Miti Mbili Village in Bungoma North Sub-County, within Bungoma County, the appellants jointly murdered Laban Watoka. The appellants pleaded not guilty to the information. 2.The prosecution called eight (8) witnesses in a bid to prove its case. It was the evidence of PW1, Edna Naliaka, PW2, Robinson Mutoro, PW3, David Simiyu, PW4, John Simiyu that on 15th November, 2018, they attended a night vigil held for one late Joel at his home. They remained there until about 2.00 a.m. PW1 and PW2 testified that while walking home, they heard a commotion as if people were fighting. PW1 stated that she saw the appellants beating the deceased. She stated that the 1st appellant was armed with a club while the 2nd appellant had a panga. PW2 on his part recalled that the 1st appellant had a club. He testified that he saw the 1st appellant hit the deceased with the club which resulted in the deceased falling to the ground. He asked the 1st appellant why he had done so and the 1st appellant told him that the deceased was just sleeping, but he would eventually wake up. 3.The witnesses did not intervene but continued their journey home. The appellants later joined them. PW2 stated that the 1st appellant went to a farm where he hid the club. The following day, they were informed that the deceased had died. PW2 showed the police where the 1st appellant had hidden the club. PW3 on his part stated that he did not witness the appellants assault the deceased. PW4 similarly did not witness the fight, but stated that the appellants later joined them on their way home. 4.PW6, Morris Britain Inzala, the area Chairman of Community Policing, who also attended the night vigil, testified that on 15th November, 2018, at 3.00 a.m., he was on his way home when he saw a body lying next to the road. He informed the police who came and collected the body. He also assisted the police arrest the appellants. He recalled that it was the deceased’s father who identified the body of the deceased. 5.PW5, Dr. Patrick Busita, conducted a post mortem examination of the deceased’s body on 19th November, 2018. He stated that the deceased had injuries on his lower limbs, defence marks on his palms, bruises on the chest wall, multiple abrasion injuries on the face, fracture of the spine, bleeding from the nose, and a clot in the neck. He formed the opinion that he died due to fracture of the cervical spine. 6.PW8, P.C. John Saina, the investigating officer, testified that when he was assigned the case, he visited the scene of crime and drew a sketch plan. The area assistant chief and PW6 picked up the boys who attended the night vigil and took them to Kimilili Police Station for interrogation. The interrogation revealed that the appellants and the deceased were fighting over the affection of a girl. The 1st appellant was armed with a club which was recovered, while the 2nd appellant was armed with a panga which was not recovered. 7.The appellants were placed on their defence. The 1st appellant gave sworn evidence. It was his testimony that he attended a funeral vigil on 15th November 2018. He left for his home at around 2.00 a.m., in the company of the 2nd appellant, Dickson, David and Kevin. On their way home, he saw people fighting. He did not know the said people. They did not intervene but each went to their respective homes. The following day, he was informed that a boy had died. He testified that the deceased was not known to him. He had not seen him at the funeral vigil. He denied the allegation that he attacked the deceased on the material night. He conceded that he knew PW2, PW3 and PW4. 8.The 2nd appellant also gave sworn testimony. He testified that he was at the said funeral vigil on the material night. He stated that he left for his home at about 2.00 a.m. together with the 1st appellant, Joan, Kevin, Julius and Dickson. On the way, he heard the sound of someone being beaten. He inquired and was informed that there were people who were fighting. He stated that he did not know the deceased personally but that he used to see him around their location. He testified that he knew PW1, who was his neighbour, and that her testimony alleging that he had assaulted the deceased was a lie. He stated that the 1st appellant told them that he had assaulted someone, and that he was injured in the process. 9.After full trial, the appellants were acquitted of the charge of murder, and convicted of the lesser charge of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. The appellants were each sentenced to serve eight (8) years’ in prison. 10.The appellants, aggrieved by this decision, preferred this joint first appeal. They advanced three (3) grounds of appeal. The appellants were of the view that the prosecution failed to discharge its burden of proof in the case against them. They were aggrieved that their conviction was based on insufficient circumstantial evidence. Lastly, they faulted the learned trial Judge for imposing a sentence that was harsh, excessive and unlawful. 11.The appeal was heard by way of written submissions. Counsel for the appellants, Ms. Mariat, submitted that other than PW1, none of the other prosecution witnesses placed the appellants at the scene of crime, and in particular, the 2nd appellant. She explained that none of the prosecution witnesses witnessed the murder of the deceased; the evidence against the appellants was therefore purely circumstantial. It was her submission that the element of malice aforethought was not established by the prosecution. She argued that the appellants did not have any motive to kill the deceased, and that motive was an important element if the case against an accused person rests purely on circumstantial evidence. 12.On sentence, counsel for the appellants argued that the trial court failed to take into account the appellant’s mitigating circumstances before imposing the custodial sentences. She invited us to allow the appeal. 13.The appeal was opposed. Mr. Otieno, learned Assistant Director of Public Prosecutions, appeared for the respondent. It was his submission that PW1 witnessed the appellants assault the deceased on the material night. She told the court that the 1st appellant was armed with a club while the 2nd appellant had a panga. He explained that PW2 corroborated PW1’s testimony and confirmed seeing the 1st appellant in possession of a club, which he used to hit the deceased, and that the 1st appellant later hid the said club in a farm. He added that PW3 also placed the appellants at the vicinity of the scene of crime. He agreed with the finding of the learned trial Judge that there was no malice aforethought, as the evidence disclosed a fight between the appellants and the deceased, which was over the affection of a girl. He maintained that the custodial sentence of eight (8) years was neither harsh or excessive taking into consideration the circumstances of the case, and the fact that a life was lost. He urged us to uphold the conviction and sentence imposed by the trial court. 14.We have carefully considered the record of appeal, submissions by both parties, and the law. The duty of the first appellate court was stated by this Court in Gabriel Kamau Njoroge v Republic [1987] eKLR as follows:“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well as on the questions of facts as on questions of law, to demand a decision of the court of first appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions, though it should always bear in mind that it has neither seen or heard the witnesses and to make due allowance in this respect. (see Pandya v R [1957] EA 336, Ruwalla v R [1957] EA 570)”. 15.The issues falling for determination by this Court can be summed up as follows:i.Whether the evidence on record met the legal threshold required to sustain a conviction for the offence of manslaughter against the appellants;ii.Whether the sentence imposed by the trial court was harsh and excessive. 16.The conviction of the appellant rested on the evidence of eyewitnesses, together with corroborative circumstantial evidence. Was the evidence on record sufficient to sustain a conviction? This Court in the case of Anthony Ndegwa Ngari v Republic [2014] KECA 424 (KLR) described the ingredients forming the offence of murder as follows:“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. (See Nyambura & Others v Republic, [2001] KLR 355).” 17.The death of the deceased, and its cause were not issues of contention in this appeal. The appellants denied causing the death of deceased, and contended that the evidence against them was insufficient and purely circumstantial. We do not agree. The appellants’ conviction was not founded solely on circumstantial evidence. PW1 gave direct eyewitness account that she saw the appellants jointly assault the deceased. She testified that the 1st appellant was armed with a club while the 2nd appellant wielded a panga. PW2, Robinson Mutoro, similarly testified that he saw the 1st appellant strike the deceased with a club which caused him to fall to the ground. Both PW1 and PW2 knew the appellants prior to the material day of the incident. The possibility of the existence of mistaken identity was therefore absolutely eliminated. PW2 further testified that after the assault, the 1st appellant hid the club in a farm, from where it was later recovered with the assistance of the police. 18.The evidence of PW1 and PW2 placed the appellants squarely at the scene of crime. Although PW3 and PW4 did not witness the actual attack, their testimonies confirmed the appellants’ presence at the vicinity of the scene of crime. They later joined them on their way home shortly after the incident. Further, PW3 told the court that PW1 went to witness the fight, which lent credence to PW1’s eye witness account. 19.The evidence of PW6, Morris Britain Inzala, further strengthened the prosecution’s case. PW6 testified that at about 3: 00 a.m. on the same night, while walking home from the night vigil, he found the deceased’s body lying beside the road and immediately informed the police. This evidence established that the deceased died at the scene of crime shortly after the assault witnessed by PW1 and PW2, thereby firmly linking the appellants’ unlawful acts to the deceased’s death. 20.The medical evidence tendered by PW5, Dr. Patrick Busita, was also consistent with the account of a violent assault. The deceased sustained multiple injuries including bruises, abrasions, defence injuries and a fracture of the cervical spine, which the doctor identified as the cause of death. 21.We are therefore satisfied that the prosecution proved beyond reasonable doubt that the appellants unlawfully assaulted the deceased, thereby occasioning injuries that led to his death. We further agree with the finding of the learned trial Judge that the prosecution did not establish malice aforethought on the part of the appellants. The evidence on record disclosed that the assault arose spontaneously following a confrontation between the appellants and the deceased. The deceased’s death is partly attributable to nonchalant exuberance of youth. It was not premeditated. In the circumstances, the learned trial Judge properly convicted the appellants of the lesser offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. 22.On sentence, the appellants argued that the custodial term imposed on them was harsh and excessive, and that the trial court failed to consider their mitigation. Sentencing is a matter that lies within the discretion of the trial court. An appellate court will only interfere where it is shown that the court acted on a wrong principle, overlooked material factors, or imposed a sentence that is manifestly excessive in the circumstances. 23.From the record, it is clear that the learned Judge considered the appellants’ mitigating circumstances. We have considered the sentence of eight (8) years’ imprisonment imposed upon each appellant. The offence of manslaughter under section 205 of the Penal Code attracts a maximum sentence of life imprisonment. The trial court took into account the circumstances of the offence, the mitigation by the appellants, and the fact that a human life was lost following a violent assault. In the circumstances, the sentence imposed cannot be said to have been unlawful, harsh or excessive. Indeed, considering the gravity of the injuries inflicted upon the deceased, the sentence was fairly lenient. 24.In the end, we find no merit in this appeal. The appeal against both conviction and sentence is hereby dismissed in its entirety. DATED AND DELIVERED AT KISUMU THIS 29TH 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 original.DEPUTY REGISTRAR