https://new.kenyalaw.org/akn/ke/judgment/keca/2026/966

Omambia & 2 others v Republic (Criminal Appeal 99 of 2020) [2026] KECA 966 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 966 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal 99 of 2020 P Nyamweya, LA Achode & JM Mativo, JJA May 15, 2026 Between Joseph Anari Omambia 1st Appellant Richard Nyakundi Nyakeri 2nd Appellant Joseph Monyancha Omambia 3rd Appellant and Republic Respondent (An appeal from the Judgment of the High Court of Kenya at Nyamira (E. N. Maina J.) delivered on 19th December 2019 in Nyamira High Court Criminal Case No. 4 of 2018 Criminal Case 4 of 2018 ) Judgment 1.Joseph Anari Omambia, Richard Nyakundi Nyakeri and Joseph Monyancha Omambia , the 1st, 2nd and 3rd appellants herein, have challenged their conviction for murder and the sentence of 20 years’ imprisonment that was imposed by the High Court of Kenya at Nyamira (E. N. Maina J.) in High Court Criminal Case No. 4 of 2018. The said conviction and sentence were consequent to a trial in which the prosecution called nine (9) witnesses to testify. The appellants in turn each gave sworn testimony in their defence, and called two (2) defence witnesses. The particulars of the offence were that the said appellants jointly murdered Edwin Onyancha Onguso on 15th July 2017 at Embaro village in East Kitutu location in Masaba North sub-county within Nyamira County. 2.We shall briefly set out a summary of the events leading to the arrest and conviction of the appellants, as stated in the evidence adduced in the trial court. On 21st June 2016, Gladys Kwamboka Omambia (PW1) was angered by the actions of the deceased, who was her son, and specifically the action of the deceased taking sugar from her house. She asked him to return it, but he became violent and attempted to assault her as he was drunk. PW1 then called vigilantes namely one Charles Gekonge and the three appellants herein, who upon arrival at 8.00 pm questioned the deceased, who admitted to taking the sugar. The vigilantes then told PW1 to go to bed and took the deceased after restraining him with a chain. At 9.00 p.m on the same day, PW1 was informed by her other son that the deceased was lying outside, and upon inquiry, the deceased told PW1 that he had pain in his head, but he did not explain to her what had happened. 3.The following morning, PW1 was told the deceased had gone to his grandmother’s home, and PW1 thereupon received a telephone call from the grandmother inquiring why she had beaten the deceased and requesting money to take him to hospital. The deceased returned home, and PW1 took him to a private hospital, which referred them to the general hospital. Upon taking the deceased to Kisii general hospital, they were referred to Tenwek hospital on 5th July 2017, and while on the way to Tenwek, the deceased died. 4.On his part, Davis Ogendi (PW2), arrived home from school on 21st June 2017 at about 6.00 p.m. and found the deceased, who was his cousin, quarrelling with PW 1 over sugar that the deceased had taken and sold. PW2 reiterated that PW1 thereafter called vigilantes; he saw the said vigilantes, who included the appellants, arrive between 6.00 p.m. and 7.00 p.m.; and the vigilantes stated that they were taking the deceased, who was restrained with a chain to the chief. PW2 and his cousin Felix (PW3) followed them and saw the vigilantes tie the deceased to an electricity pole with a rope, whereupon they started beating him PW 2 testified that they could see what was happening because Anari had a torch, which he used to illuminate the area. After the beating, the deceased was released and returned home, asked PW2 to open the door for him. He complained of pain in the head and stomach and told them that he had been beaten by “Anari, Gekonge, and Monyancha”. At about 5.00 a.m., the deceased went to their grandmother’s home, and was later taken to hospital and died after a week. Felix Matara Onguso (PW3), the deceased brother, gave a similar account of events as that of PW2. 5.The deceased grandmother, Dora Nyanchama Obongo (PW5), last saw the deceased in 2017, although she could not recall the specific date or month. The deceased came to her home early one morning and told her that he had been beaten by Nyumba Kumi (a community policing group), after he was reported for attempting to take his mother’s sugar, The Nyumba Kumi members bound him, tied him to an electric pole, and beat him, and the deceased told PW5 that the persons involved were Gekonge, Anari, and Monyancha. PW5 observed that the deceased’s head was swollen, his bladder was leaking urine and he had injuries on both legs. She gave him painkillers and called PW1 who did not come, and upon returning from tethering her cattle, she found that the deceased had gone. She went to the deceased’s home the next morning and found him lying outside, having been taken to hospital by PW1. According to PW6 the deceased died three days later. 6.Upon arriving home on 21st July 2017, the deceased’s father, Evans Onguso Nyangaresi (PW8), found that Charles Gekonge Ogaki, Richard Nyaberi, Joseph Monyancha, and Joseph Anari had apprehended his son and bound his hands with chains, and also witnessed some of them beat the deceased. The deceased then sought for forgiveness, and was released and went home. PW8 was later informed that the deceased left the home at 5.00 a.m. the next morning. At this point, PW8’s account of events differed from that of the other family members in material respects. 7.PW8 stated that he looked for the deceased, who was found two weeks later at his maternal home. PW1 then sent the deceased money, enabling him to return home. When PW8 saw the deceased after his return, his leg was bandaged, and upon inquiring what had happened, PW1 informed him that the deceased had fought with a neighbour. PW8 went to the neighbour’s home and found that the neighbour, one Charles Nyalunda, had moved away. Thereafter, PW8 was informed that the deceased was experiencing severe head pain and he secured a vehicle and took him to Kisii hospital and they were referred to Tenwek or Busia. They chose to go to Tenwek, but the deceased died on the way. They then took the deceased’s body to Gucha Mortuary and reported the matter to the police. They then searched for the appellants but did not find them. 8.Mokaya Omayo Peter (also referred to as PW7 in the record, but who we shall refer to as PW7A) the area chief, knew all three appellants. In particular that the 1st appellant was the chairman of Nyumba Kumi, assisted in maintaining law and order in the community; the 2nd appellant was a clan elder; and the 3rd appellant was his neighbour. PW7A received a call on 5th July 2017 from PW1 informing him that her son had died and that they were at Gucha Mortuary, and he proceeded to Gucha Mortuary and confirmed the death. He was informed that the deceased had fought with his mother, prompting the involvement of clan elders and members of Nyumba Kumi, after PW1 called them. He had also heard that the deceased had been found with another man’s wife, and that the deceased was beaten on 5th July 2017 and died after three weeks, and during that period his parents did not report the incident to him, and he did not know whether they reported it to the police. 9.The cause of the deceased’s death was a severe head injury secondary to blunt trauma, as explained by Dr. Peter Momanyi (PW4), who produced the report of the post-mortem examination he conducted on the deceased on 12th July 2017 at Gucha Nursing Home. The Investigating Officer, Sgt. John Okoth PW6), took over the case on 23rd May 2018, which had been reported at Keroka Police Station as an assault by the deceased’s parents on 5th July 2017, and it later emerged that the victim, had died. The report named Joseph Anari, Richard Nyakundi, and Joseph Monyancha as the persons who assaulted the deceased. The police arrested the 1st and 2nd appellants at their homes on 13th June 2018, and arrested the 3rd accused person within Keroka Township. The deceased’s mother informed them that she had called a vigilante group to deliberate on a problem she had with her son, after which the vigilantes took the deceased away from home. The deceased died about one month after the assault, and the appellants were arrested approximately one year later. The assault was reported on 5th July 2017, while the vigilantes allegedly assaulted the deceased on 21st June 2017. PW 7 stated that he did not obtain a statement from the deceased and that he recorded PW1’s statement one year later on 6th July 2018, and a colleague recorded PW6’s statement on 15th May 2018, after the deceased had already died. 10.When put on their defence, the appellants’ account of events was similar. They were called by a village elder, Richard Nyaberi Gekonge, who informed them that there was a fight at the home of the deceased, and when the arrived at the homestead they found the fight still ongoing. The deceased had already been beaten and was bleeding, and PW 1 informed them that the deceased had stolen sugar. She requested him to apprehend the deceased and escort him to the Chief, and on the way to the home of the Assistant Chief, the deceased pleaded with his mother for forgiveness, who agreed that he should return home. The deceased was released and went back home with his parents. 11.Two weeks later, they were informed that the deceased had been involved in a fight with a motorcycle rider known as Nyalunda over an alleged affair with Nyalunda’s wife and had injured his leg. The deceased was taken to hospital two days after the fight and died three days thereafter. The appellants were however arrested about one year later, and that Charles Gekonge was not arrested because he was not at home and his whereabouts were unknown. The appellants denied assaulting the deceased and stated that it was possible that Nyalunda killed the deceased, and that as members of Nyumba Kumi, their role was to maintain law and order and they had authority to apprehend offenders. 12.One of the defence witnesses, Edgar Mokaya Ongwenyi (DW1), witnessed one Nyarunda beating the deceased when he was found in Nyarunda’s house with Nyarunda’s wife, and called PW1 to witness what was happening. DW1 took the stick from Nyarunda was using from him, and stated that the deceased died five days later. The other defence witness was Alice Moraa Amisi (DW2), who found the appellants with the deceased on the road, and heard the deceased promise to buy sugar, after which he went home. She did not see the appellants assault the deceased and that the deceased died two weeks later after he was found with another man’s wife and beaten. 13.After considering the evidence, that trial Judge found that the appellants battered the deceased occasioning him injuries which afterwards led to his death and was satisfied that the prosecution proved beyond reasonable doubt one or more of the circumstances establishing malice aforethought as provided in Section 206 of the Penal Code. Further, that whereas they may not have set out to kill the deceased, the manner of tying his hands with a chain then tying him to an electricity pole with a rope and then using a wooden plank and metal bar to beat him and the nature of injuries inflicted which included injuries to his genitalia, is evidence that they had intention to cause him grievous harm or that they had knowledge that they could cause him grievous harm. Accordingly, that the elements of the offence of murder were proved, and the defence did not shake the prosecution’s case in any way and that whatever inconsistencies or contradictions exist in the evidence were not fatal. 14.The appellants are aggrieved by the findings of the trial Court and initially raised eleven (11) grounds of appeal in their memorandum of appeal dated 2nd March 2020. These grounds were substituted by three grounds in their supplementary memorandum of appeal dated 19th August 2023, namely:1.The Learned Judge erred in fact and in law in convicting the Appellants when the prosecution evidence was merely circumstantial evidence.2.The Learned Judge erred in law in rejecting the Appellants' defence.3.The Learned trial Judge erred in condemning the Appellants to a sentence which under the circumstances was excessive, harsh, unconstitutional and unlawful. 15.We heard the appeal on the Court’s virtual platform on 2nd September 2025. The 1st appellant, Joseph Amari who was present appearing virtually from Kisumu Maximum Prison, while the 2nd and 3rd appellants, Richard Nyakundi and Joseph Monyancha appeared virtually from Naivasha Maximum Prison. Learned counsel, Ms. Mboya, holding brief for learned counsel, Ms Awuor appeared for the appellants while the learned Principal Prosecution Counsel Mr. Mwangi, who was holding brief for learned Prosecution Counsel Ms. Judith Kiptanui appeared for the respondent. The learned counsel relied on their written submissions dated 19th August 2025 and 28th August 2025 respectively. 16.As this is a first appeal, the duty of this Court as set out in the oft-cited case of Okeno vs. Republic [1972] EA 32 is to submit that evidence to a fresh and exhaustive examination and draw our own conclusions. In doing so, we shall make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses. The appellants’ counsel in this regard submitted that the main issue in this appeal is whether the prosecution’s evidence supported the offence of murder beyond reasonable doubt. Further, that while that the deceased death was not in dispute based on the post mortem report produced in evidence, the trial Court failed to analyse the testimonies of the prosecution witnesses in totality by choosing to admit part of the testimony and disregarding the other. 17.In particular, that none of the eye witnesses testified having witnessed the deceased being hit on the head by the appellants; there was no proof of a common intention by the appellants who did not have any issue with the deceased, as it was the deceased’s mother who called them and they had no reason whatsoever to kill the deceased; it was not proved that the appellants had the intention to cause death or grievous harm against the deceased; and the prosecution did not tender any evidence to rebut the defence by the appellants and show that they committed the offence to the exclusion of any other causes considering the fact that there was another person involved and possible cause of the deceased’s death as also raised by PW 8 who was the deceased’s father. Therefore, that the trial Court erred and convicted the appellants on circumstantial evidence that was not sufficient. Lastly, that the sentence of 20 years’ imprisonment was not proper, since the case against the appellants was never proved. 18.The respondent’s counsel on his part submitted that the prosecution relied on the testimonies of PW2 and PW 3 who positively identified the appellants as the people who assaulted the deceased on the night in question and it was trite law that minor inconsistencies do not vitiate the entire evidence, particular where the core material facts are consistent . Further, that although the attack occurred at night, this did not in itself render the identification unreliable, as the witnesses were familiar with the appellants and the prevailing conditions permitted recognition, and the assault described by the witnesses was consistent with the injuries found in the post-mortem report. It was not necessary for the witnesses to specify the exact fatal blow where the collective assault caused the injuries that led to the death. On the issue of proof of common intention, counsel submitted that the law does not require prior agreement; what is essential is that the accused persons acted in concert in the prosecution of a common unlawful purpose, which was evident from the circumstances surrounding the assault of the deceased. In addition, that the actions of the appellants, responding together, engaging the deceased jointly, and using force simultaneously, amount to a shared intent and purpose. 19.With regards to malice aforethought, counsel submitted that can be inferred from the nature of the weapon used, the part of the body targeted, and the severity of the injuries inflicted. On circumstantial evidence, it is trite that such evidence can form the basis for a conviction if it satisfies the legal test, and that the circumstantial evidence was not only compelling but was also corroborated by the eyewitness accounts and the post-mortem report, which directly linked the appellants’ actions to the fatal injuries sustained by the deceased. In addition, that while the burden of proof lay on the prosecution and never shifted to the accused, this burden did not extend to disproving vague or unsubstantiated speculative alternatives offered by the defence; the defence counsel’s suggestion of another cause or perpetrator was neither supported by direct evidence nor did it break the chain of causation established by the prosecution; and the testimony of PW8 and PW1, the deceased’s father and mother, did not exonerate the appellants or introduce any reasonable alternative explanation for the fatal injury. Furthermore, that motive, while relevant, is not an essential element of the offence of murder. that while the appellants may have lacked personal animosity towards the deceased, their unlawful acts, coupled with the intention inferred from their conduct and the nature of the injuries, were sufficient to establish malice aforethought under section 206 of the Penal Code. 20.Lastly, on whether the sentence was excessive, illegal or unjust, the respondent’ counsel submitted that the appellants were convicted under section 203 as read with section 204 of the Penal Code, which prescribes the mandatory sentence for murder as death, and in light of the decision in Francis Karioko Muruatetu & another vs Republic [2017] eKLR subsequent jurisprudence, the courts now retain discretion in sentencing for murder. However, that in the instant appeal, the trial Court imposed a 20-year custodial sentence after considering mitigation and other factors, which as legal and well within the Court’s discretion, and there was no indication that the trial Court erred in principle or disregarded relevant factors. Therefore, that the sentence was not only lawful but proportionate to the gravity of the crime. 21.We have considered the evidence adduced in the trial Court and arguments put forth by the appellants and respondent. There are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction for murder, as set out in section 203 of the Penal Code. 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. As conceded by both the appellants’ and respondent’s counsel and from the evidence on record, there is no contest in the present appeal that the deceased died, and that the cause of death was a severe head injury secondary to blunt trauma. The main question in this appeal is whether the said death was caused by the unlawful acts or omissions of the appellants, and if so with malice aforethought. In this respect, the evidence of the appellant’s involvement and participation was by PW1, PW2, PW3, PW6 and PW8. PW1 called the appellants to address a dispute between her and the deceased, PW1, PW2 PW3 and PW8 testified that they witnessed the appellants thereafter tie the deceased to an electricity pole and beat him, and PW6 saw the deceased the following day with injuries. Additionally, PW4, the doctor, stated that the deceased death was caused by a head injury. 22.The appellants have argued that the evidence that was relied on by the prosecution was circumstantial, however, there was direct evidence by PW1, PW2 , PW3 and PW8 that they were seen assaulting the deceased on 21st June 2017, who thereafter died on 5th July 2017. Similarly, the requirements of common intention are set out in section 21 of the Penal Code, which are firstly, that two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and secondly, in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose. In such circumstances, each one of them is deemed to have committed the offence, as was confirmed by the East African Court of Appeal in Wanjiru d/o Wameri vs. Republic, 22 EACA 521 which defined common intention as follows:“Common intention generally implies a premeditated plan, but this does not rule out the possibility of a common intention developing in the course of events though it might not have been present to start with.” 23.In Njoroge vs Republic(1983) KLR 197 this Court held that: “if several persons combine for an unlawful purpose and one of them in the prosecution of it kills a man, it is murder in all who are present whether they actually aided or abetted or not provided that the death was caused by the act of someone of the party in the course of his endeavours to effect the common object of the assembly.” Applying these principles of the law, we find no difficulty in finding that the elements of common intention were present among the appellants since they had a common purpose of disciplining the deceased, after having been called by PW1. 24.The question for determination is whether the prosecution proved beyond reasonable doubt that the assault arising from this disciplining caused the death of the deceased, and whether the beatings inflicted by the appellants were indeed the proximate and only cause of the death. Under section 213 of the Penal Code, a person is deemed to have caused the death of another although his act is not the immediate or the sole cause of death in any of the following cases: -a.if he inflicts bodily injury on another person in consequence of which that other person undergoes surgical or medical treatment which causes death. In this case it is immaterial whether the treatment was proper or mistaken, if it was employed in good faith and with common knowledge and skill; but the person inflicting the injury is not deemed to have caused the death if the treatment which was its immediate cause was not employed in good faith or was so employed without common knowledge or skill;b.if he inflicts bodily injury on another which would not have caused death if the injured person had submitted to proper surgical or medical treatment or had observed proper precautions as to his mode of living;c.if by actual or threatened violence he causes such other person to perform an act which causes the death of such person, such act being a means of avoiding such violence which in the circumstances would appear natural to the person whose death is so caused;d.if by any act or omission he hastened the death of a suffering under any disease or injury which apart from such act or omission would have caused death;e.if his act or omission would not have caused death unless it had been accompanied by an act or omission of the person killed or of other persons. 25.The considerations to be taken into account in proving whether the acts of an accused person are the sole cause of the deceased’s death, or whether there were intervening causes, were explained by this Court in Mwambire vs Republic [2024] KECA 865 (KLR), while relying on the English decision in R vs Cheshire [1991] 1 WLR 844 and persuasive Ugandan decision in Uganda vs Nyingaling (Criminal Sessions Case No. 0101 of 2015) [2018] UGHCCRD 121 as follows :“36.Attribution of causal responsibility is a preliminary step towards the eventual attribution of criminal culpability to the accused. The court may use either the natural consequences test, the substantial cause test, or both. An accused will be held responsible for the final outcome that constitutes the offence if it is the natural result of what the accused said or did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he or she said or did. An accused will also be held responsible for the final outcome if it is a substantial and operating result of what the accused said or did, but not otherwise. If the subsequent event is so overwhelming as to make the act of the accuse merely part of the history, a novus actus interveniens, the chain of causation will have been broken.Under the substantial cause test, the chain of causation is not broken unless the act of the accused is no longer a substantial and operating cause of death. That is, it is only if the subsequent event is so overwhelming as to make the initial wound "merely part of the history," that the chain of causation will be held to be broken. In other words, if the proximate cause is not independent of the accused then he or she is responsible for it, and if it is not potent in causing death, then it will not be so overwhelming as to make the original wound merely part of the history.”37.In R vs Cheshire (supra), the court held that the accused’s actions need not be the sole or even the main cause of death as long as it contributed significantly to that result. 26.The trial Court’s findings in this regard were as follows:“The testimonies of Pw1, Pw2 and Pw3 confirmed that the deceased remained at home until he succumbed to the injuries. Edgar Mokua the first witness for the accused persons stated he was not at home on 15th July 2017. He seemed not very certain on the date he witnessed “Nyalunda beating the deceased” only stating it was in June, was it before or after the deceased’s encounter with the accused. His evidence was not of much probative value to this court and in my view he was coached to “corroborate” an incident which never took place. If such an incident took place and he could recall it so vividly then he should have been sure about the date. It is also my finding that at the time he alleges to have seen the deceased going into Nyalunda’s house and Nyalunda finding him with his wife there was not enough light for him to make a positive identification of the person he saw and unlike the evidence of Pw2 and Pw3, his was evidence of a single witness and the prevailing circumstances were not conducive to a positive identification and he could probably have been mistaken.” 27.The record shows that the appellants, one defence witness namely DW1, two of the prosecution witnesses (PW7A and PW8), one of whom was the deceased’s father and the other the area chief, all testified to another assault on the deceased, which caused him further injury after the assault by the appellants. Further, that the deceased died a few days after this further assault. Therefore, contrary to the findings by the trial Court, there was corroboration of the evidence adduced by DW1 as regards the incident of Nyalunda beating the deceased. 28.DW1 in this regard testified that sometime in June 2017 he witnessed one Nyalunda beating the deceased with a stick of firewood, and he called the deceased’s mother (PW1) to witness it, and that he is the one who took the stick from Nyalunda. Further, that the deceased died five days later. Of note is that the evidence adduced by the prosecution corroborated this fact. Notably PW8 testified as follows:“After two weeks the deceased was found at his maternal home in Kebirigo. I had looked for him. It is my mother-in-law who told us the deceased was there. My wife sent him money and he came back home.I did not know he had come. On Saturday morning I saw him. his leg was bandaged. I asked him what had happened but he did not answer me. His wife told me they had fought with a neighbour. The neighbour had a shop. I went there but found the neighbour had moved. I have never seen that neighbour. His name is Charles Nyalunda. The other children were in school when it happened so I did not ask them. Later that evening I questioned the deceased on what had happened but he still kept mum. I asked his mother but she said that is how he was.” 29.PW7A on his part testified on cross-examination that he had been informed that the deceased had been found with another man’s wife. We also therefore differ with the respondent’s counsel’s view that this was a vague or unsubstantiated speculative alternative offered by the defence, since there was direct evidence by DW1 as regards the assault, which was corroborated by the prosecution own witness namely PW8 and PW7A. We are also perturbed that there was no effort by the prosecution to recall PW1 to confirm or controvert this evidence. 30.Further, there were gaps and contradictions in the evidence adduced by the prosecution as to the time when the deceased was taken to hospital, with some witnesses indicating that he was taken to hospital after the beatings by the appellant, and others indicating that he was taken to hospital just before his death, and died on the way. PW1’s evidence in this regard was as follows:“He went to his grandmother's home at 5am in the morning. I did not see him going but I was informed he was there through a telephone call. I did not witness my son being beaten. It was at night. I thought he would get well. After he came back from his grandmother's home he spent the night and then I took him to hospital. That was after 3 days. I first took him to a private hospital, then Keroka and Kisii then after a CT scan I was told to take him to Tenwek. I had been asked to take him to Kenyatta National Hospital but I did not. Even had I taken him to hospital earlier he would not have survived as blood had gone into his brain.” 31.PW2 on his part testified as follows:“At about 5am he got up and went to our grandmother's home. Our grandmother called and said Edwin was there but he was vomiting and was weak. I went to school so I do not know what transpired. The next day he complained of a lot of pain. I did not go to school and we took him to hospital. We took him to Mochene Dispensary but there was a doctor's strike. He only got medicine. He complained of pain in the head the whole of that night. After one week he died. Date he died was 5th July 2017. I do not know where his death occurred since I was in school”. 32.On cross examination PW2 stated as follows:“It was on 21st June 2017 when they beat him. He died on 5th July 2017. I do not know what transpired on 22nd June. He went to grandmother's home on 22nd June. From 21st June to 5th July is 2 weeks. I do not recall the date we took him to hospital for the first time.” 33.PW3 on his part did not remember the date the deceased was taken to hospital. PW8’s evidence on the date the deceased was taken to hospital was as follows:“On 5th August - I am not very certain of the date. The child died in July but I do not remember the date. It was on a Wednesday and I was going to welfare. I was told the deceased's head was paining. I got a vehicle and we took him to hospital. The doctors were on strike so we took him to Keroka. The doctors there were on strike to so we took him to Kisii. There we were referred to either Tenwek or Busia in Kisumu. We decided to take him to Tenwek. He died on the way. We took him to Gucha Mortuary.” 34.No evidence of treatment notes or hospital admissions were produced by the prosecution to prove the proximity of the injuries and treatment to the beatings by the appellants. We cannot in the circumstances therefore make a definitive finding that the death of the deceased was a natural consequence of the beatings inflicted by the appellants, or that the said beatings substantially caused the said death. Therefore, unlike the situation in Mwambire vs Republic (supra), the evidence in this appeal disclosed intervening acts that could have led to the deceased’s death, the evidence adduced by the prosecution raised doubts as regards the cause of death, and of the time the deceased was taken to hospital for treatment. The trial Court’s findings reproduced hereinabove were accordingly not supported by the evidence adduced in this regard. 35.We in this regard reiterate the emphasis by this Court in Francis Mwangi Wanjohi & another vs Republic [2020] KECA 482 (KLR) that whereas under section 143 of Evidence Act no particular number of witnesses are required to prove a fact, it is equally essential that the prosecution must make available all witnesses necessary to establish the truth even if their evidence turns out to be inconsistent with the charge; and that the purpose of a criminal trial is to ensure that an individual accused of a crime receives a fair and impartial evaluation by an impartial arbiter of the evidence in order to determine if he is guilty or not. 36.The upshot of our examination of the evidence adduced in the trial Court is that we find that the prosecution did not meet the threshold required of proof beyond reasonable doubt that the appellants caused the death of the deceased, and the appeal herein is therefore merited. We accordingly set aside the conviction of the 1st, 2nd and 3rd appellants for the offence of murder and the sentence of 20 years’ imprisonment meted upon each of them by the trial court. The 1st, 2nd and 3rd appellants are set at liberty forthwith, unless otherwise lawfully held. 37.It is so ordered. DATED AND DELIVERED AT KISUMU THIS 15TH DAY OF MAY, 2026.P. NYAMWEYA............................JUDGE OF APPEALL. ACHODE............................JUDGE OF APPEAL J. MATIVO............................JUDGE OF APPEAL I certify that this is a true copy of the original DEPUTY REGISTRAR