https://new.kenyalaw.org/akn/ke/judgment/keca/2026/940

Onyango & another v Republic (Criminal Appeal 135 of 2020) [2026] KECA 940 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 940 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal 135 of 2020 P Nyamweya, LA Achode & JM Mativo, JJA May 15, 2026 Between Fredrick Omonywa Onyango 1st Appellant Alfred Omariba 2nd Appellant and Republic Respondent ((Being an appeal against the judgment of the High Court of Kenya at Nyamira (E.N Maina. J), delivered on 23rd April 2020 in HCCR Case No. 75 of 2015) Judgment 1.The appellants: Fredrick Omonywa Onyango and Alfred Omariba filed this first appeal against the judgment dated 23rd April 2020 delivered by E.N. Maina. J. at Nyamira High Court. In the impugned judgment, the appellants were found guilty of murder contrary to section 203 as read with section 204 of the Penal Code and they were each sentenced to twenty-five years imprisonment. 2.The particulars of the charge of murder was that that the appellants were alleged to have murdered Saulo Musembi Ondieki on 14th April 2014, at Upper Manga Village, Borabu Sub-county within Nyamira County, jointly with others not before court, 3.The appellants pleaded not guilty and were subjected to a full trial in which the prosecution presented eleven witnesses to prove its case, while the appellants mounted their respective defences by way of sworn statements without calling any witnesses. 4.The prosecution case was principally anchored on the testimony of K.O (PW1), a minor aged about fourteen years at the time of the incident, who was employed as a herdsman by the deceased. He testified that on the material evening at about 6:45 p.m., he was taking the cattle home when he encountered two unknown men. The strangers inquired about the deceased, and he led them into the house where the deceased was alone. As he walked out, he met two other men, one of whom he identified as the 1st appellant, a cousin and neighbour of the deceased, whom he had known for about a year. It was his evidence that it was not yet dark and that there was also light from a lamp inside the house. 5.Suddenly he was pushed back into the house and forced onto a chair and later under a sofa. He witnessed one of the assailants stab the deceased on the head with a sharp object, after which two of them strangled him. The 1st appellant then picked an axe from the house and struck the deceased on the head and, upon being told the deceased was not yet dead, he struck him again. The assailants took the deceased’s mobile phone and money and fled, after which PW1 raised alarm. 6.Alexander Mogeni Moseti (PW2), the deceased’s son, and Monica Nyanduko Mosebi (PW3), the deceased’s wife confirmed that they found the deceased lying in a pool of blood with visible head injuries. They and Daniel Mokua (PW6), the deceased’s other son testified to the existence of a longstanding land dispute between the deceased and the 1st appellant and of prior threats allegedly made by the 1st appellant. 7.Chief Inspector Kamau (PW5) who visited the scene recovered a blood stained axe and observed signs of a struggle. The postmortem examination conducted by Dr. Felix (PW7) revealed two cut wounds on the scalp, a skull fracture and blunt abdominal injury. PW7’s report attributed the cause of death to severe head injury. 8.The deceased’s stolen Nokia phone was traced to Lydia Mokaya (PW4), who testified that she had exchanged her Itel phone with the 2nd appellant, her cousin known to her as “Soko,” in December 2014. Upon arrest, the 2nd appellant was found in possession of the Itel phone identified by PW4 as hers. The Nokia phone recovered from PW4 was positively identified by PW1, PW2 and PW3 as belonging to the deceased. The prosecution invoked the doctrine of recent possession to link the second appellant to the offence. 9.PC Malimali (PW11), the Investigating Officer, took over the investigations on 14th May 2015. During his inquiries, he sought to trace the deceased’s mobile phone which had been stolen on the night of the killing. Using service provider data, he tracked the Nokia phone to Kiambu County where he found PW4. He arrested her and recovered the phone in possession. Upon interrogation, PW4 informed him that she had obtained the Nokia phone from the 2nd appellant in exchange for her own Itel phone. 10.PW11 stated that the 2nd appellant went into hiding upon learning that he was being sought, but he was eventually traced and arrested. At the time of his arrest, he was found in possession of an Itel phone, which PW4 identified as the one she had exchanged with him. PW11 testified that the service provider records showed that the deceased had last used the Nokia phone on 17th April 2014. Based on the recovery of the deceased’s phone and the explanation given by PW4 implicating the 2nd appellant, he charged him with the offence. He produced the recovered phones and related exhibits in evidence. 11.In their defence, the 1st appellant raised an alibi, stating that he was in Nairobi on the material date and produced bus tickets in support. He denied being at the scene or assaulting the deceased and disputed the evidence of PW1. The 2nd appellant denied knowing the deceased, or having exchanged phones with PW4, or being in possession of the Itel phone. 12.Upon considering the evidence, the learned trial Judge found that the prosecution had proved its case beyond reasonable doubt and convicted the appellants as charged. After considering the appellants’ mitigation, the learned Judge sentenced each appellant to twenty-five years imprisonment. 13.The appellants, aggrieved and dissatisfied with the above judgment, filed this appeal. In the memorandum of appeal dated 5th May 2020 they faulted the trial Judge for what they termed as:i.Shifting the burden to the appellants and failing to uphold proof beyond reasonable doubt.ii.Misdirection on circumstantial evidence thus wrongly creating an adverse inference against the appellants.iii.Failing to properly evaluate the defence of alibi.iv.Failing to adequately consider the appellants’ defence.v.Erroneous evaluation of identification evidence.vi.Failing to find and hold in favour of the appellants wherein there were contradictions in prosecution’s witnesses. 14.The firm of M/s Sonye J. Ondari & Co. Advocates filed written submissions dated 9th February 2025 on behalf of the appellants. Counsel urges that the trial Judge erred in law and in fact in convicting the appellants in circumstances where the prosecution failed to discharge the burden of proof beyond reasonable doubt. Relying on the principle in Woolmington v DPP [1935] AC 462, he contends that the legal burden of proof always rests upon the prosecution and never shifts to the accused. 15.Regarding the 1st appellant, it is submitted that the conviction was founded solely on the evidence of a single identifying witness (PW1). That although an axe was produced in evidence, no forensic examination such as fingerprint analysis was conducted to link the 1st appellant to the weapon. He contends that the trial court failed to appreciate that PW1’s testimony required corroboration, particularly in the absence of scientific evidence connecting the 1st appellant to the alleged murder weapon. It is further argued that the trial Judge failed to properly evaluate the 1st appellant’s alibi defence that he was in Nairobi at the material time and produced bus tickets dated 10th and 14th April 2014 in support of that alibi. Counsel submits that this evidence was not controverted, the prosecution failed to place the 1st appellant at the scene of crime, and that the delay of nearly one year before his arrest casts doubt on the prosecution’s case. 16.In respect of the 2nd appellant, it is submitted that no prosecution witness placed him at the scene of crime and that his alibi defence was similarly not displaced. Counsel argues that the trial court erred in relying on circumstantial evidence relating to the deceased’s mobile phone. He contends that no documentary proof was produced to conclusively establish ownership of the phone by the deceased, nor was there sufficient evidence linking the 2nd appellant’s alleged possession of the phone to the offence of murder. It was urged that mere possession of a phone, even if stolen, was not proof of participation in murder and could at most support a different charge. The appellants maintain that the doctrine of recent possession was improperly applied. 17.Further, the appellants contend that the trial court failed to properly analyze contradictions in the prosecution evidence, particularly regarding the lighting of the deceased’ house, and alleged delayed mention of the 1st appellant’s name as one of the assailants to the police, were fatal to the prosecution case.They argue that these inconsistencies created reasonable doubt which ought to have been resolved in their favour. 18.In conclusion, it was submitted that the trial court failed to properly evaluate the totality of the evidence, misdirected itself on the burden of proof and on the defence of alibi, and consequently arrived at an unsafe conviction. Counsel therefore urges this Court to allow the appeal, quash the conviction, set aside the sentence, and order the appellants’ immediate release. 19.In rebuttal, Ms. Judith Kiptanui, learned Principal Prosecution Counsel, filed submissions dated 26th August 2025 on behalf of the respondent. The respondent urges that the prosecution discharged its burden of proof beyond reasonable doubt and that the trial Judge properly evaluated the evidence on record. 20.With respect to the complaint that the conviction was based on the evidence of a single identifying witness (PW1), the respondent submits that there is no legal bar to a conviction founded on the testimony of a single witness, provided the court warns itself of the attendant danger and is satisfied as to the witness’s credibility. It is contended that the trial Judge expressly cautioned herself on this principle and nonetheless, found PW1 to be truthful and reliable. That PW1 gave a direct eyewitness account and positively identified the 1st appellant, whom he knew well prior to the incident, the identification was not made in difficult circumstances, and the trial court was entitled to rely on it. 21.On the issue of failure to conduct forensic examination of the axe, the respondent contends that the absence of fingerprint evidence did not weaken the prosecution case, as the totality of the evidence, particularly PW1’s testimony, established guilt beyond reasonable doubt. The recovery and production of the axe in court, coupled with the direct evidence of its use were sufficient. 22.Regarding the defence of alibi, the respondent argues that although an accused bears no burden to prove an alibi, such defence must be weighed against the entire body of evidence. That in the present case, the prosecution evidence placing the 1st appellant at the scene was firm, cogent and credible, and therefore the alibi did not raise any reasonable doubt and was properly dismissed. 23.Regarding the 2nd appellant, the respondent acknowledges that no witness placed him at the scene but submits that the conviction was properly grounded on circumstantial evidence under the doctrine of recent possession. That the 2nd appellant exchanged the deceased’s mobile phone with PW4 approximately six months after it had been stolen during the commission of the offence, and it was positively identified by PW1, PW2 and PW3 as belonging to the deceased. That the 2nd appellant offered no reasonable explanation for his possession of the phone. Counsel submits that possession may be actual or constructive and that the trial court correctly inferred guilt from the unexplained possession of recently stolen property. 24.When the appeal came before us for plenary hearing on 3rd September 2025 the two appellants were represented by learned counsel Mr. Mokaya. He relied on the submissions as filed and briefly reiterated that the appellants were not at the scene of crime. Mr. Mwangi, learned Principal Prosecution counsel, was present for the respondent. He too relied on his submissions and added that the deceased’s phone was tracked for six months leading to the arrest of the 2nd appellant. In addition, that the two appellants were on the run for a year before they were arrested. 25.As the first appellate Court, it is our duty to re-evaluate and analyze the entire evidence on record and draw our own independent conclusions, while bearing in mind that we did not have the advantage of seeing and hearing the witnesses testify. The guiding principles are well settled. In Okeno vs Republic [1972] EA 32 the Court stated as follows:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v r (1957) EA p.336) and to the appellate court’s own decision on the evidence and draw its own conclusion. (Shantilal M. Ruwala v R (1957) E.A p570). It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v Sunday (1958) EA p.424.” 26.Upon considering the record of appeal, the rival submissions and the law, it is our view that this appeal turns on the following issues:i.Whether the identification and recognition evidence relating to the first appellant was safe and reliable.ii.Whether the conviction of the second appellant was properly founded on circumstantial evidence.iii.Whether there were material contradictions, inconsistencies, or omissions in the prosecution’s evidence capable of rendering the conviction unsafe.iv.Whether the defence of alibi raised by both appellants was properly considered and evaluated.v.Whether the sentence imposed was lawful and appropriate in the circumstances. 27.As stated earlier, the appellants were charged with murder under Section 203 of the Penal Code which provides that:“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” 28.To sustain a conviction for murder, the prosecution ought to prove beyond reasonable doubt that the deceased person’s death was caused by an unlawful act or omission, on the part of the appellants, and that such an unlawful act or omission was committed with malice aforethought. This Court elaborated in Anthony Ndegwa Ngari vs Republic [2014] eKLR that to secure a conviction there must be proof that:a.the death of the deceased occurred;b.the accused committed the unlawful act which caused the death of deceased; andc.the accused had malice aforethought. 29.It is common ground that the life of the deceased was cut short in an unnatural manner by the unlawful acts of the perpetrators. What is in dispute is the identity of the perpetrators. The appellants contend that the respondent did not prove to the required standard that they committed the unlawful act that resulted in the death, while the respondent maintains that they discharged their duty to the required standard. 30.The burden of proof in criminal cases rests throughout upon the prosecution and does not shift to the accused person, save in a few statutory exceptions. The celebrated dictum in Woolmington v DPP [1935] AC 462, consistently applied by our courts, establishes that the prosecution must prove guilt beyond reasonable doubt. 31.In the present matter, the 1st appellant was implicated by direct evidence of identification, while the 2nd appellant was implicated through circumstantial evidence founded upon the doctrine of recent possession. The sufficiency of that evidence must therefore be examined separately. 32.The conviction of the 1st appellant rested on recognition evidence by PW1, a single identifying witness. In finding that the evidence of PW1 was reliable and credible, the trial court held as follows:“Guided by the above principles, I have treated and approached the evidence of KO (Pw1) as respects the 1st accused with a lot of caution and warned myself of the danger of relying on the evidence of a single witness. However, I am satisfied beyond reasonable doubt that Pw1 positively identified the 1st accused person. It was his evidence that the 1st accused was in the second set of men that he met at the gate as he was leaving having taken the first two to the house where the deceased was. Although it was in the evening it was not yet dark and so he could see clearly. He did not leave but was pushed back to the house and shoved first onto a chair and moments later under a sofa. It was his evidence that it was while he lay under the seat that he saw the assailants strangle the deceased before the 1st accused hit him on the head with an axe and when one of the other assailants remarked that he had not died he hit him a second time. Pw1 stated that inside the house there was light from a lamp although it was dim (not very bright). Chief Inspector Kamau (Pw5) confirmed this when he stated “There was a paraffin lamp which was lit but it was very dim.” This therefore corroborated the evidence of Pw5 that there was light in the room that was the scene of crime. It confirms the truthfulness of the testimony of the Pw1. It was also Pw1’s testimony that he knew the 1st accused person well because he (Pw1) had worked for the deceased close to one year and the 1st accused apart from being the deceased’s cousin was a neighbour, facts which were admitted by the 1st accused when he stated in cross examination: “The deceased was my uncle. Our homes are about 500 meters apart.” 33.The caution required when handling single eyewitness evidence was discussed at length in this Court’s decision in Wamunga v Republic [1989] KECA 47 (KLR) as follows:“Evidence of visual identification in criminal cases can bring about miscarriages of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant depends wholly or to a great extent on the correctness of one or more identifications of the accused which he alleges to be mistaken, the Court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification. The way to approach evidence of visual identification was succinctly stated by Lord Widgery C.J, in the well-known case of R v Turnbull [1976] 3 All E.R. 549 at page 552 where he said:“Recognition may be more reliable than identification of a stranger; but, even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”This need for caution was also reiterated by the Court of Appeal for Eastern Africa in the case of Abdallah Bin Wendo v R 20 EACA 166 at page 168 thus:“Subject to certain well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification especially when it is known that the conditions favouring correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct pointing to guilt, from which a Judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error.” 34.In the present case, as correctly analyzed by the learned trial Judge, PW1 knew the 1st appellant, thus it was a matter of recognition and not identification. Further, PW1 recounted to the court the happenings that led to the death of the deceased which were corroborated by other prosecution’s witnesses. These included the lighting in the house, and one of the objects that was used to inflict injury upon the deceased. We also note that the learned trial Judge expressly warned herself of the dangers attendant to such evidence, and proceeded to examine the prevailing conditions. Guided by the holding in Wamunga v Republic (supra) we are persuaded that PW1 positively identified the 1st appellant. 35.The conviction of the 2nd appellant was founded on circumstantial evidence, particularly the doctrine of recent possession. On the circumstantial evidence the predecessor of this Court in R v Kipkering Arap Koske & Another 16 EACA 135 held, inter alia, that:“In order to justify the inference of guilty, the inculpatory fact must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt.” 36.Additionally, this Court in Erick Odhiambo Okumu v Republic [2015] KECA 714 (KLR), relying with approval on the decision in Abanga Alias Onyango v Republic Cr. App. No. 32 of 1990 rendered itself as follows:“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:(i)the circumstances from which an inference of guilt is sought to be drawn, must 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 human probability the crime was committed by the accused and none else”. 37.In the instant case, the respondent relied on the doctrine of recent possession to draw an inference of guilt. As regards the circumstances under which the doctrine of recent possession may apply, this Court held in Athuman Salim Athuman v Republic [2016] KECA 697 (KLR) that:“The essence of the doctrine is that when an accused person is found in possession of recently stolen property and is unable to offer any reasonable explanation how he came to be in possession of that property, a presumption of fact arises that he is either the thief or receiver. (See Malingi V. Republic (1989) KLR 225 H.C and Hassan V. RepubLIC (2005) 2 KLR 151).The circumstances under which the doctrine will apply were considered in Isaac Ng’ang’a Kahiga Alias Peter Ng’ang’a Kahiga V. Republic, CR. APP. NO. 272 of 2005, where this Court stated:“It is trite that before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first that the property was found with the suspect, secondly, that the property is positively the property of the complainant; thirdly that the property was stolen from the complainant and lastly, that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one to the other.” 38.The question that begs an answer in the case before us is whether the ingredients of the doctrine of recent possession were established. On this the trial court had this to say:“Pw11 stated that the phone was initially tracked to Lydia Mokaya who he was able to trace and find in Kiambu County. Lydia Mokaya testified in this case as Pw4. She narrated how she exchanged her Itel Phone which was single sim with this Nokia phone which was a double sim. She identified the person she exchanged phones with as her cousin Alfred Soko the 2nd accused in this case. Although the 2nd accused denied this and the fact that the two of them were related it is significant that when he was arrested by Pw11 he was found in possession of an Itel phone which when put to Pw4 she identified as hers. If it is his case that Pw4 had reason to lie against him although he did not expressly state so, what about Pw11, a police officer who did not know him at all prior to this case? My finding is that the officer (Pw11) could not have lied about the Itel phone as he had no reason to do so. His (2nd accused’s) possession of the Itel phone belonging to Pw4 corroborates her evidence of an exchange. A receipt for the Itel phone was exhibited though not produced and it confirmed the phone belonged to Pw4. The Nokia phone found in Pw4’s possession was identified by Pw1, Pw2 and Pw3 as the one taken from the deceased’s house. These witnesses knew the phone very well as they were accustomed to seeing the deceased using it. I am satisfied therefore that they positively identified it. The 2nd accused did not give any explanation let alone a plausible one as to how the phone came into his possession instead choosing to completely deny it. While I cannot impute a guilty knowledge from his denial, I can do so from the period of time that he obtained the phone. According to Pw4 the exchange took place in December 2014. The deceased was killed in April 2014 hence a period of six months. The 2nd accused gave no explanation of when he came by this phone so we can safely assume he had it for six months and in my view six months is not too long a period to rule out the doctrine of recent possession. As I have stated he did not offer any explanation in rebuttal and I am therefore entitled to draw the inference that he either stole the phone or that he was a guilty receiver. In this case he obviously could not have physically stolen it since Pw1 who was an eyewitness was emphatic that he did not see him in the house on that day, but I can draw an inference that he must have acted in concert with the assailants although he was not present with them. The fact that six months later he chose to exchange the phone with an innocent Lydia Mokaya (Pw4), who he was sure had no knowledge at all of how it had been obtained is proof that he had a guilty mind. Accordingly, I find that he was properly joined to this charge together with the 1st accused”. 39.As stated earlier, the evidence against the 2nd appellant is circumstantial. There was no direct evidence that he participated in the murder of the deceased. The exchange of the phone taking place six months after the death of the deceased, and whether this period of six months can be classified as “recent” for the doctrine of recent possession to apply. This fact raises doubts as to what could have transpired with the phone during the period of six months, especially given that PW11 stated during cross examination that he did not produce the Safaricom data which would have shown its usage or location during that period. PW1 also testified that he did not see the 2nd appellant at the scene. 40.It was in this respect held by this Court in Isaac Ng’ang’a Kahiga & Another v Republic [2006] eKLR on the requirement that the property was recently stolen from the complainant, that the proof as to time will depend on the easiness with which the stolen property can move from one person to the other. In this case the phone is one that could easily have moved from one person to another during the six- month period, and the Safaricom data was therefore crucial to show the movement of the stolen phone. We are therefore of the view that the conviction of the 2nd appellant on the basis of the application of the doctrine of recent possession was not safe. We also note that he was not charged with any alternative charge, and his appeal therefore succeeds. 41.Turning to whether the inconsistency and contradiction of the prosecution case regarding lighting of the deceased’ house, and alleged delayed mention of the 1st appellant’s name as one of the assailants to the police were fatal to the prosecution case. The evidence of PW1 was that during the incident there was a light from the lamp in the room, he also testified that when the assailants accosted him outside the house, it was not yet dark. Thus he saw the 1st appellant, whom he knew very well as the deceased’s cousin. PW5 confirmed that there was a paraffin lamp burning and the light was very dim in the room. 42.On the issue of not mentioning the name of the 1st appellant to PW5 when he was being questioned, PW1 told the court that he was not asked whether he recognized the perpetrators by the police. He therefore, did not give that information at that point. The trial court convinced by PW1’s explanation observed that:“Pw1 was only 14 or 15 years (15 in Pw5’s estimation) and it would not be too far-fetched to say that he may not have realized the gravity of such information unless the question was put to him. There is after all nothing in the evidence to suggest that Pw1 had any reason to lie against the 1st accused. I believe him. The fact therefore that no information of the 1st accused’s involvement in the crime came forth on the night police visited the scene does not absolve him from culpability.” 43.Having considered the prosecution case as a whole, we are also convinced that the evidence of the prosecution witnesses rings true and the discrepancies pointed out by the appellant are minor. They do not adversely affect the prosecution case. We are persuaded by the comparative decision of the Supreme Court of India in State of U.P. vs. M.K. Anthony; Criminal Appeal No. 19 of 1976 where it was held thus:“Appreciation of evidence, the approach must be whether the evidence of the witness read as a whole, appears to have a ring of truth. Once that impression is formed, the Court should scrutinize the evidence keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by him and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.” 44.Now concerning the argument on the alibi, the 1st appellant argued that their defence of alibi was not properly considered and evaluated by the trial court. The respondent on the other hand contended that the alibi was considered but did not raise any reasonable doubt. The trial court pronounced itself on the defence of alibi as follows:“The 1st accused mounted an alibi and produced bus tickets to support it. While I appreciate that it is never the duty of the accused to prove his alibi but the duty of the prosecution to disprove it, I find that in the face of the very cogent and credible evidence of Pw1, that alibi cannot stand. I accordingly reject the same and find that the 1st accused was among the four assailants under whose hands the deceased suffered death and that it was he who as a matter of fact inflicted the fatal blow when he hit the deceased on the head with an axe. The postmortem report confirms two injuries on the head of the deceased and a fracture of the skull and these are injuries which are consistent to a blow on the head with an axe. Chief Inspector Kamau (Pw5) confirmed that he saw an axe with blood in the room and that he was told by Pw1 that it was the one that was used to hack the deceased. This again confirms the truthfulness and trustworthiness of Pw1’s evidence.” 45.From the above, the trial court considered the 1st appellant’s alibi defence in detail. We are convinced that the alibi defence was displaced by the evidence that placed the 1st appellant at the scene and that the trial court was correct in rejecting it. 46.We have established that the 1st appellant committed the unlawful act which caused the death of deceased. The next issue to determine is whether they harboured malice aforethought. Section 206 of the Penal Code defines malice aforethought as follows:“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances:1.An intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;2.Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;3.an intent to commit a felony;4.An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony” 47.The evidence tendered demonstrates that the 1st appellant’s intention was to cause the death of the deceased. PW1 told the court that the assailants stabbed the deceased on the head with a sharp object. They then strangled him. The 1st appellant struck him with an axe and upon being told that the deceased was still alive he struck him again. The evidence of PW1 was corroborated by the postmortem report revealing that the deceased died due to severe head injury. We therefore find that malice aforethought was proved. 48.Turning to sentence, the trial court upon considering the appellants’ mitigation, sentenced each appellant to twenty-five years imprisonment. This Court in Bernard Kimani Gacheru v Republic [2002] KECA 94 (KLR) correctly held 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, a sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with a 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 stated is shown to exist.” 49.Ultimately, we find that the 1st appellant’s appeal has no merit. It is dismissed in its entirety. We affirm both the conviction and sentence. The 2nd appellant’s appeal has merit, and is allowed. The 2nd appellant is therefore set at liberty forthwith, unless otherwise lawfully held. DATED AND DELIVERED AT KISUMU THIS 15TH DAY OF MAY, 2026P. NYAMWEYA.....................................JUDGE OF APPEALL. ACHODE.....................................JUDGE OF APPEALJ. MATIVO.....................................JUDGE OF APPEALI certify that this is a true copy of the originalDeputy Registrar