https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1168

Ndakwa & another v Republic (Criminal Appeal E111 of 2024) [2026] KECA 1168 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1168 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E111 of 2024 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA June 12, 2026 Between Ayub Mafuvo Ndakwa 1st Appellant David Waweru Kuria 2nd Appellant and Republic Respondent (Being an appeal from the High Court of Kenya at Migori (Wendoh, J.) dated 3rd October 2024 in HCCRC No. E008 of 2022) Judgment 1.This is a first appeal against the conviction and sentence of the appellants by the High Court of Kenya at Migori in Criminal Case No. E008 of 2022. The appellants had therein faced an information charging them with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the information were that on 26th January 2016, at Nyabokarange village in Kuria West Sub-County, Migori County, jointly with another not before the court, murdered Daniel Weisiko Moi “the deceased”. 2.The appellants returned a plea of not guilty to the information thereby set in motion their trial. 3.The prosecution’s case was that in the early hours of the morning of 26th January, 2016, a group of Administration police specialized stock theft prevention unit dressed in jungle uniforms, armed with guns and sticks, led by the 1st appellant and with 2nd appellant in tow descended on the homestead of the deceased, among others on suspicion that they were involved in cattle rustling in the area. PW1 Rael Boke Mwita, the deceased’s wife, confirmed that upon entry, they introduced themselves as such and immediately descended on the deceased subjecting him to a brutal assault. In the process, they also turned on her and beat her senseless. They then tied the deceased’s hands with ropes behind his back, dragged him outside, and continued to assault him. They thereafter bundled him in a police vehicle and drove away. She later received information the following day that her husband had passed on. 4.PW2 Chacha Dickson Wandwi, a cousin to the deceased, provided compelling corroboration. His homestead too was raided around the same time by police officers who were accompanied by the local Assistant Chief, Zablon Serengo Gati. He described how he and his wife were assaulted, and how the deceased, already tied and limping, was brought to his compound together with other villagers. He recounted that while they were being transported in a police vehicle, the deceased cried out for water, collapsed and died in his presence. 5.PW3 Lucas Nyangi Chacha, also a victim of the raid confirmed that he too was tied up by police officers and later taken to PW2’s home, where he witnessed the deceased being beaten. Some livestock were however recovered from his homestead. 6.The chain of command was established through PW4 SSP Kipkemoi Chelule, the in charge of Administration police specialized stock theft prevention unit who was called by members of the public complaining that their cattle had been stolen. He then authorized the operation to recover the stolen livestock. He confirmed that 1st appellant led the team who later reported to him that one suspect from whom five heads of cattle had been recovered had died after he attempted to flee but members of the public pursued him and administered mob justice or injustice on him thereby fatally injuring him. PW5 Cpl. Mike Kipkoech Kiptum and PW6 Frederick Ogeto, who were part of the operation corroborated in material particulars what transpired and how they transported the deceased’s body to Migori hospital mortuary. PW7, Rioba Wangwi, a village elder confirmed that the deceased had been arrested in connection with stolen cattle and indeed some of them had been found in his possession. PW8, Mwita Michael Wandui, was present when the postmortem was conducted over the body of the deceased. 7.Further corroboration as to how the operation transpired came from PW9 APC Hillary Kiragu Maina and PW10 Cpl. David Chelimo, who testified that they were part of the operation led by the 1st appellant together with the 2nd appellant and that the deceased was arrested with cattle but later died while in police custody. PW11, Francis Manyinza was stepped down to allow the maker of the document he was to introduce in evidence to present it instead. PW 12, Agnes Awito Augo produced a record of the deceased's death. The aftermath of the operation was taken up by the Independent Police Oversight Authority (IPOA). PW13, Moses Humphrey Khaunya, a principal Investigating officer with IPOA, determined that the appellants and others who were on duty were the main suspects in the death of the deceased. He also established that the deceased died in a police motor vehicle but not from gunshot wounds nor was there evidence that he was killed by the mob as recorded in the police Occurrence Book (OB) by the appellants. 8.Finally, PW14 Dr. Peterlis Owuor Ogutu, who conducted the post-mortem, concluded that the cause of death was blunt force trauma to the head, consistent with assault. 9.The appellants in their sworn defence admitted that on 26th January 2016 they were part of an operation mounted by the Anti-Stock Theft Unit to recover stolen cattle. In the process, they arrested several suspects and as they were escorting them to the police station, they attempted to escape. However, they were pursued by members of the public and when arrested they were beaten and unfortunately the deceased passed on as a result. As the suspects had sustained serious injuries from the beatings of the members of the public, they resolved to take them to hospital. One of the suspects however, died enroute. They all denied personally assaulting any of the suspects or causing the death of the deceased. 10.The trial court, after considering the evidence adduced by both the prosecution and the defence, found that the prosecution had proved its case beyond reasonable doubt against the appellants. The trial court observed that the testimonies of the key witnesses, particularly PW1 and PW2, were consistent on the sequence of events leading to the deceased’s arrest and subsequent death. It noted that the deceased was taken from his home by persons who identified themselves as police officers and was later found dead, having sustained injuries consistent with assault. 11.It went on to hold that the prosecution witnesses were credible and their accounts corroborated each other on material particulars. The defence, on the other hand, was found to be a mere denial and did not dislodge the prosecution’s narrative. The trial court further found that the investigating officer’s evidence, together with the post-mortem report, established that the deceased died as a result of injuries inflicted by blunt objects, and that the circumstances pointed irresistibly to the appellants as the perpetrators. In determining malice aforethought, the trial court concluded that the nature of the injuries, the manner in which the deceased was assaulted, and the conduct of the appellants demonstrated an intention to cause grievous harm, which ultimately resulted in his death. 12.Consequently, the trial court convicted the appellants and after taking into consideration their mitigation sentenced each one of them to ten years’ imprisonment. 13.Aggrieved, the appellants lodged the instant appeal on various grounds. However, in view of what transpired when the appeal came up for plenary hearing, it is not necessary to set out those grounds. 14.When the appeal came up for hearing, Mr. Menezes B, learned counsel appeared for the appellants, whereas Ms. Ikol, learned Assistant Director of Public Prosecutions appeared for the respondent. Both counsel opted to rely on their respective written submissions that they had filed and exchanged but with limited oral highlights. However, when the court engaged Ms. Ikol on the possibility that given the circumstances of the case and the evidence led, perhaps the appropriate offence that should have been proffered against the appellants should have been manslaughter contrary section 202 as read with section 205 of the Penal Code rather than the information of murder, Counsel graciously conceded the appeal on that ground. Mr. Menezes B. was not averse to the concession. 15.In the light of the foregoing, we proceed to substitute the conviction of the appellants for the offence of murder with manslaughter contrary to section 202 as read with section 205 of the Penal Code. 16.We shall now deal with the question of sentence. Counsel for the appellants invoked the principles in Francis Karioko Muruatetu & Another v Republic [2017] eKLR and the Sentencing Policy Guidelines, in urging us to consider the appellants’ age, health condition, remorsefulness, and rehabilitation efforts. He prayed that the sentence of six years or any other term will be just and reasonable and taking into account as well the period the appellants remained in remand custody as their trial was being processed pursuant to section 333(2) of the Criminal Procedure Code. 17.In response Ms. Ikol submitted that the court should consider the gravity of the offence and that the loss of life was occasioned. Counsel urged us to retain the sentences initially imposed for the information of murder, unless it was shown that the sentence was manifestly excessive or based on wrong principles, citing Bernard Kimani Gacheru v Republic [2002] eKLR. 18.We have to consider the appropriate sentence that we should impose for the offence of manslaughter. In Francis Karioko Muruatetu & Another v Republic (supra), the supreme Court of Kenya emphasized proportionality, rehabilitation, and individualized sentencing. The appellants were first offenders, former police officers, and have already served a substantial portion of the sentence initially imposed. They have demonstrated remorse and undertaken rehabilitation programmers while incarcerated. In view of these mitigating factors, and considering the circumstances of the offence, we are satisfied that the period already served by the appellant is sufficient punishment. 19.Accordingly, the conviction of the appellants on the information charging them with murder is hereby substituted with a conviction on the information charging them with manslaughter contrary to section 202 as read with section 205 of the Penal Code. The sentence of ten (10) years’ imprisonment is set aside and substituted with a sentence equivalent to the period already served. The appellants shall consequently be released forthwith unless otherwise lawfully held. DATED AND DELIVERED AT KISUMU THIS 12TH DAY OF JUNE, 2026.ASIKE-MAKHANDIA..................................JUDGE OF APPEALE.C. MWITA..................................JUDGE OF APPEALB. ONGAYA..................................JUDGE OF APPEALI certify that this is a true copy of the originalDeputy Registrar