https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12583

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU COUNTY COURT NAME: KISUMU HIGH COURT CASE NUMBER: HCCRA/E095/2025 ERICK ODONGO ONYANGO AND DENNIS ONYANGO VS THE REPUBLIC JUDGMENT ***(Arising from an Appeal by the Judgment of Hon Jocelyn Kimetto delivered on 18th September 2025 in MMCCR/E044/2025)*** # INTRODUCTION * 1. This Appeal arises from the judgment of Hon. Jocelyn Kimetto delivered on 18th September 2025 in Kisumu Kombewa Magistrate’s Court Criminal Case No. MCCR/E044/2025. 2. The Appellants were charged with the offence of attempted murder contrary to Section 220(a) of the Penal Code. The particulars of the offence were that on 23rd August 2020, at Kadero Village in Seme Sub-County within Kisumu County, jointly with others, unlawfully attempted to cause the death of James Adera Ochung by cutting him on the forehead with a panga and assaulting him with rungus. The Appellants denied the charge, gave sworn defences, and called one witness. During the pendency of the proceedings, the 5th accused person passed away. 3. The defence ultimately called ten (10) witnesses. Upon the close of the case, the parties filed written submissions, which were duly considered alongside the evidence on record. After analyzing the evidence, the trial court stated that: *“upon analysis of the entire evidence, I make a finding that of the five accused persons, only the names and physical identities of 1st and 2nd Accused’s featured prominently and were clearly mentioned adversely and linked to the offence. Hence, I find each of the two culpable of attempted murder under section 220(a) of the Penal Code as charged and are convicted accordingly.”* 4. Consequently, the learned trial magistrate convicted the 1st and 2nd accused persons and sentenced each of them to five (5) years’ imprisonment. 5. Aggrieved by both the conviction and sentence, the Appellants, being the 1st and 2nd accused persons, lodged the present appeal before this court. In their Petition of Appeal, they raised fifteen (15) grounds challenging the decision of the trial court and subsequently filed written submissions in support thereof. # SUBMISSIONS BY PARTIES **Appellant’s Submissions** 1. The Appellant’s filed their submissions to this Appeal dated 26th January 2026. The Appellants relied on the case of ***Okeno Vs. Republic*** stating that it is the duty of this court to re-evaluate the evidence and make its own conclusion. 2. On Grounds 1, 2, 3, 4 and 13, the Appellants challenged the finding that the offence of attempted murder had been proved beyond reasonable doubt. They submitted that the prosecution failed to establish the particulars of the charge as framed, particularly the allegation that the complainant was assaulted using pangas and rungus. The Appellants pointed to the complainant's testimony that he was assaulted using fists and not a rungu, arguing that the evidence adduced did not support the charge sheet. They further contended that the trial court improperly relied on allegations of threatening text messages allegedly sent by the 1st Appellant to infer an intention to kill. According to the Appellants, the alleged messages were never produced before the court, the telephone number was not proved to belong to the 1st Appellant, and no forensic evidence was tendered to authenticate the messages. They therefore submitted that the evidence fell short of establishing the requisite intention to commit murder. 1. The Appellants further submitted that the prosecution failed to prove both the mens rea and actus reus of attempted murder. Relying on **R v Whybrow [1951] 35 Cr. App. Rep. 141, Cheruiyot v Republic** ## (1976–1985) EA 47, and authorities cited in Smith & Hogan Criminal Law and Cross & Jones Introduction to Criminal Law, they argued that attempted murder requires proof of a specific intention to kill and acts sufficiently proximate to causing death. They contended that the evidence only disclosed an ordinary assault and not conduct capable of sustaining a conviction for attempted murder. 1. On Grounds 5 and 6, the Appellants submitted that identification of the assailants was unreliable and unsafe. They argued that the alleged attack occurred in circumstances involving numerous people, with evidence suggesting that more than 100 villagers were present at the scene. They contended that despite these difficult circumstances, no identification parade was conducted and the conviction was based largely on dock identification. The Appellants further argued that the acquittal of the 3rd, 4th and 6th accused persons, coupled with evidence showing that some accused persons had been wrongly implicated, demonstrated the unreliability of the identification evidence. Reliance was placed on **Hassan Abdallah** ## Mohammed v Republic [2017] eKLR, John Mwangi Kamau v Republic [2014] eKLR and Gabriel Kamau Njoroge v Republic (1982–1988) 1 KAR 1134. 1. On Grounds 7 and 8, the Appellants challenged the credibility of the prosecution witnesses, arguing that nearly all the key witnesses were relatives of the complainant or persons connected to longstanding land disputes involving the parties. They submitted that PW2, PW3, PW4, PW5 and PW8 were either family members or closely associated with the complainant and therefore had reason to support his case. The Appellants further argued that despite evidence that many members of the public witnessed the events, the prosecution failed to call independent witnesses. They contended that the existence of prior land disputes between the families provided a motive for false accusations and that the trial court failed to adequately consider this factor. 1. On Grounds 9, 10, 11 and 12, the Appellants submitted that the prosecution case was riddled with material contradictions and inconsistencies which cast doubt on its credibility. They pointed to discrepancies regarding the weapons allegedly used, the nature and extent of the complainant's injuries, the medical treatment received, and the sequence of events on the material day. The Appellants argued that there was inconsistency between the testimony of prosecution witnesses and the medical evidence, particularly concerning whether the complainant sustained cuts, bruises or swelling and where he first received treatment. They further questioned the evidence of PW7 and the authenticity of the treatment records relied upon by the prosecution. 2. The Appellants also maintained that the prosecution evidence placed them in circumstances that made it impossible for them to have committed the offence. They argued that they were at their home, away from the complainant's residence, where they were themselves under attack by an irate mob following a land dispute. They submitted that the timelines given by prosecution witnesses conflicted with one another and supported their defence that they could not have been at the complainant's home at the time of the alleged assault. In support of this argument, reliance was placed on ## John Nyaga Njuki & 4 Others v Republic, Criminal Appeal No. 160 of **2000, and John Mutua Munyoki v Republic [2017] eKLR** regarding the effect of material contradictions and inconsistencies on the prosecution's case. 1. The Appellants further faulted the trial court for failing to properly analyze and evaluate the defence evidence. They submitted that the trial court merely summarized the defence case and dismissed it without a detailed consideration of its probative value. They argued that the defence evidence consistently demonstrated that they were victims of a mob attack arising from a land dispute and that several accused persons were arrested and charged simply because they happened to be at the Appellants' home during the incident. 1. On Grounds 14 and 15, the Appellants challenged the sentence of five years' imprisonment as harsh and excessive. They argued that the injuries allegedly sustained by the complainant were minor and that the evidence did not justify a conviction for attempted murder. The Appellants submitted that the trial court ought to have considered a lesser offence under the penal code and imposed a more lenient sentence. Consequently, they urged the court to interfere with both the conviction and sentence. 2. In conclusion, the Appellants submitted that the prosecution failed to prove its case beyond reasonable doubt, that the conviction was founded on unreliable identification evidence and material contradictions, and that the defence evidence was not properly considered. They therefore prayed that the appeal be allowed, the conviction quashed, the sentence set aside, and an acquittal entered in their favor. **Respondent’s Submissions** 1. The Respondent, through submissions dated 24th March 2026, opposed the appeal and maintained that the learned trial magistrate properly evaluated, analyzed, and considered the evidence before arriving at a well-reasoned decision. The Respondent further submitted that, as a first appellate court, this court is under a duty to re-evaluate the evidence and arrive at its own independent conclusion, relying on the case of ***Okeno v Republic*** **(1972) EA 32.** 1. In response to Grounds 1, 2, 3, 4, and 13, the Respondent submitted that the prosecution had proved the offence of attempted murder beyond reasonable doubt. Reliance was placed on Section 220(2) and Section 388 of the Penal Code regarding the offence of attempted murder and the definition of an attempt. On the element of *mens rea*, the Respondent cited ***Cheruiyot v*** ***Republic* (1976–1985) EA 47 and *Abdi Bare v Republic*,** submitting that the requisite intention was demonstrated through threatening text messages and phone calls allegedly made by the 1st Appellant to PW3 approximately three weeks before the attack. 1. On *actus reus*, the Respondent argued that the conduct of dragging the 73-year-old complainant from his home and inflicting injuries upon him, including a cut to the forehead, when considered holistically, demonstrated an intention to kill. Reliance was placed on ***Daniel Muthee v Republic*,** **Criminal Appeal No. 218 of 2005, and *Njeri v Republic* (2025) KEHC 248 (KLR),** for the proposition that an intention to kill may be inferred from the nature and intensity of an attack, particularly where lethal weapons are used against a vulnerable victim. 1. Concerning the alleged contradiction in PW1’s testimony, where he stated that he had been assaulted using fists rather than a rungu as indicated in the charge sheet, the Respondent submitted that the inconsistency was minor and immaterial, considering that the complainant was a 73-year-old victim recounting a traumatic incident. 2. On Grounds 5 and 6 relating to identification, the Respondent submitted that the Appellants were positively identified by persons who knew them well and that this was therefore a case of recognition rather than identification of strangers. Consequently, an identification parade was unnecessary. The Respondent further argued that the acquittal of some of the co-accused did not demonstrate any defect in the identification process but instead showed that the trial court carefully scrutinized the evidence and convicted only those against whom the evidence was overwhelming. 3. With respect to Grounds 7 and 8, the Respondent submitted that the relationship between some prosecution witnesses and the complainant did not render their evidence unreliable. The Respondent argued that the law does not disqualify a witness merely because of a familial relationship and that such a relationship only affects the weight to be attached to the evidence rather than its admissibility. It was also emphasized that not all prosecution witnesses were relatives of the complainant. 4. On Grounds 9, 10, 11, and 12, the Respondent submitted that the conviction was fully supported by the evidence and that the alleged contradictions were not material. The Respondent contended that the Appellants’ defence that they were at their home, approximately 5km away from the scene, was not supported by any corroborative evidence and therefore did not raise a reasonable doubt. It was further submitted that neither the alibi defence nor the alleged inconsistencies were sufficient to displace the prosecution’s case. 1. Regarding Grounds 14 and 15 on sentence, the Respondent submitted that the sentence of five (5) years’ imprisonment was lawful under Section 220 of the Penal Code and that the trial magistrate properly exercised judicial discretion in imposing the sentence. 2. In conclusion, the Respondent maintained that the evidence was properly analyzed by the trial court and urged this court to dismiss the appeal and uphold both the conviction and sentence. # ISSUES FOR DETERMINATION 1. Having considered the Petition of Appeal, the Record of Appeal, the Judgment of the trial court and the submissions by the parties, the following issues arise for determination:- 1. *Whether the prosecution proved the offence of attempted murder contrary to Section 220(a) of the Penal Code beyond reasonable doubt.* 2. *Whether the identification and recognition of the Appellants was free from error.* 3. *Whether the contradictions and inconsistencies in the prosecution evidence were material and sufficient to create reasonable doubt.* 4. *Whether the trial court properly considered and evaluated the defence case.* 5. *Whether the conviction and sentence imposed by the trial court ought to stand.* # ANALYSIS ON THE ISSUES FOR DETERMINATION ## Whether the prosecution proved the offence of **attempted murder beyond reasonable doubt** 1. As a first appellate court, this court is under a duty to re-evaluate and reconsider the evidence on record and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify as it was established in the case of ***Okeno v Republic [1972] EA 32.*** 2. The Appellants were charged with attempted murder contrary to Section 220(a) of the Penal Code. The prosecution was therefore required to establish both the physical element (*actus reus*) and the mental element (*mens rea*) of the offence. 3. The law regarding the offence of attempted murder is settled. In ***Cheruiyot v Republic (1976–1985) EA 47,*** the court held that for a conviction under Section 220 of the Penal Code, the prosecution must prove a positive intention to unlawfully cause death. Similarly, in ***R v Whybrow [1951] 35 Cr. App. Rep. 141,*** it was held that intention is the principal ingredient in a charge of attempted murder and that nothing less than an intention to kill will suffice. 4. A careful reading of the judgment of the trial court reveals that the finding on intention was substantially influenced by the evidence of PW3, who alleged that the 1st Appellant had sent threatening text messages to him before the incident and again on the morning of the alleged attack. The learned trial magistrate treated those alleged threats as evidence demonstrating preparation and intention to kill. 5. Upon re-evaluating the evidence on record, this court finds that the alleged text messages were never produced before the trial court. No screenshots, printouts, call logs, mobile phone records, subscriber registration records, forensic reports or certificates under Section 106B of the Evidence Act were tendered. Further, there was no evidence linking the alleged telephone number to the 1st Appellant. The evidence concerning the threats therefore remained uncorroborated oral testimony. 6. Where a party seeks to rely on electronic evidence, the law requires that such evidence be properly produced and authenticated. In the absence of the alleged messages or any form of verification, the court is unable to place substantial reliance upon the allegations made by PW3. 7. The importance of those messages cannot be understated because they formed the cornerstone upon which the prosecution sought to establish the element of intention. Without them, the prosecution was left with evidence of an assault whose circumstances remained disputed. As was held in ***Joan Chebichii Sawe v Republic [2003] eKLR-Criminal Appeal 2 of 2002*** ### “The suspicion may be strong but this is a game with clear and settled rules of engagement. The prosecution must prove the case against the accused beyond reasonable doubt. “ 1. Suspicion, however strong cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt. 2. The court has also considered the nature of the assault itself. Although there was evidence that the complainant sustained injuries, the evidence was inconsistent as to whether he was assaulted using pangas, rungus, fists or other objects. Notably, the complainant testified during cross-examination that the 1st Appellant assaulted him using fists and not a rungu. None of the witnesses testified that they saw the Appellants cut the complainant with a panga as alleged in the charge sheet. 3. The medical evidence equally failed to establish injuries from which a clear intention to cause death could be inferred. The prosecution evidence therefore fell short of proving beyond reasonable doubt that the Appellants possessed the specific intention to unlawfully cause the death of the complainant. 4. In the circumstances, this court finds that the prosecution failed to establish the essential ingredient of *mens rea*, and consequently failed to prove the offence of attempted murder beyond reasonable doubt. ## Whether the identification and recognition of the Appellants was free from error 1. The prosecution witnesses testified that they knew the Appellants prior to the incident. However, the evidence on record shows that the alleged attack occurred in a highly charged environment involving numerous villagers and a large crowd. 2. The court notes that six persons were initially charged, one died during the proceedings and three were ultimately acquitted for lack of evidence. The fact that several accused persons were implicated but later acquitted raises legitimate concerns regarding the accuracy of the identification evidence. 3. The Appellants argued that no identification parade was conducted. While an identification parade may not be necessary in cases of recognition, the surrounding circumstances must nevertheless permit a positive and error-free identification. 4. While the prosecution witnesses purported to recognize the Appellants as persons known to them, the court in **Anjononi & Others v Republic [1980] KLR 59** observed that recognition is generally more reliable than identification of a stranger. Nevertheless, such evidence must still be carefully scrutinized. In the present case, the circumstances surrounding the alleged attack, the large crowd at the scene, the acquittal of several co-accused persons, and the material inconsistencies in the prosecution evidence raise doubt as to the reliability of the purported recognition. ## Whether the contradictions and inconsistencies in the prosecution evidence were material 1. The record discloses several inconsistencies concerning the weapons allegedly used, the injuries sustained by the complainant, the treatment he received and the sequence of events on the material day. 2. There was conflicting evidence regarding whether the complainant sustained cuts, bruises or swelling. There were also inconsistencies regarding where he first received treatment and the extent of the injuries observed by various witnesses. 3. In ***John Nyaga Njuki & 4 Others v Republic, Criminal Appeal No. 160 of 2000***, the court held that; ### “But what is important is whether the discrepancies are of such a nature as would create a doubt as to the guilt of the accused. If so, then the prosecution would not have discharged the case squarely on it to prove the case beyond reasonable doubt.” In the circumstances, discrepancies become material where they create doubt as to the guilt of an accused person. 1. The contradictions identified by the Appellants were not minor discrepancies arising from ordinary lapses of memory. Rather, they touched on fundamental aspects of the prosecution case, including the manner of assault, the identity of the assailants and the injuries allegedly sustained. These inconsistencies ought to have been resolved in favor of the Appellants. ## Whether the trial court properly considered the defence case 1. The Appellants maintained that they were at their home, away from the complainant's residence, and that they were themselves victims of an attack by an irate mob arising from a land dispute. 2. The record shows that the defence called several witnesses in support of this version of events. While the trial court summarized the defence evidence, there is little indication that it was subjected to the same detailed scrutiny accorded to the prosecution case. 1. The duty of a trial court is not merely to recount the defence but to evaluate it alongside the prosecution evidence. Where a defence raises a reasonable doubt, an accused person is entitled to the benefit of that doubt. 2. Having re-evaluated the evidence, this court finds that the defence case was not adequately weighed against the inconsistencies and weaknesses in the prosecution evidence. ## Whether the conviction and sentence ought to stand 1. In view of the foregoing findings, particularly the failure by the prosecution to prove the element of intention to kill, the questionable identification evidence, the material contradictions in the prosecution case and the inadequate consideration of the defence, this court finds that the conviction was unsafe. 2. Since the conviction cannot stand, the sentence imposed upon the Appellants equally cannot stand. # DISPOSITION Accordingly, 1. (a) The Appeal succeeds and is hereby allowed. 2. The conviction of the 1st and 2nd Appellants for the offence of attempted murder contrary to Section 220(a) of the penal code is hereby quashed. 3. The sentence of five (5) years' imprisonment imposed upon each Appellant by the trial court is hereby set aside. 4. The Appellants shall be released forthwith unless otherwise lawfully held. It is so ordered. **Dated and Delivered this 29th July 2026** SIGNED BY/FOR: **□ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE ABDI M. HASSAN** Kisumu High Court High Court Criminal Date: 2026-08-01 20:44:13