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Osuru & 2 others v Republic (Criminal Appeal E089 of 2021) [2026] KECA 1085 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KECA 1085 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E089 of 2021 MS Asike-Makhandia, HA Omondi & LK Kimaru, JJA May 29, 2026 Between Michael Otieno Osuru 1st Appellant Josephat Nyongesa Hamisi 2nd Appellant Enock Nyongesa Wafula 3rd Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Busia, (Karanjah, J.) dated 12th October, 2021 in HCCRC No. 13 of 2020 Criminal Case 13 of 2020 ) Judgment 1.Michael Otieno Osuru, Josephat Nyongesa Hamisi and Enock Nyongesa Wafula, the 1st, 2nd and 3rd appellants respectively, were charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code, the prosecution case being that on the 10th day of June 2020 at Murende Village Matayos Sub – County in Busia County, jointly with others not before court murdered Daniel Juma Ouma (the deceased). All the accused pleaded not guilty to the information and a trial ensued. The Prosecution called a total of 5 witnesses and closed its case. The appellants were all placed on their defence; and upon conclusion of the trial, they were convicted and sentenced to serve 40 years; 30 years; and 30 years imprisonment respectively. 2.Aggrieved by the outcome, they filed this appeal on five grounds, which we shall set out in the later part of this judgment. 3.In opposing the appeal on conviction, the respondent submits that that the learned trial judge properly evaluated the evidence and the prosecution witnesses, which properly disclosed the ingredients required to prove a charge of murder. 4.This being a first appeal, we are under a duty to re-evaluate the evidence, assess and weigh it as a whole, in order to arrive at our own findings and independent conclusion. In doing so, the Court has to take into consideration that it neither saw nor heard the witnesses testify. This duty was well set out by the predecessor of this Court in Okeno v Republic [1972] EA 32 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] E.A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and 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 Post, [1958] E. A. 424.” 5.The witnesses who testified for the prosecution were PW1, Geoffrey Linus Ouma, a businessman at Murende who encountered the three appellants; and who informed him that they were looking for the deceased as he had burnt down the house belonging to Joshua Osuru, a brother to the 1st appellant; shortly a child informed them of the whereabouts of the deceased; and PW1 saw the group run towards a maize plantation – he was just 10 meters away; he followed them, saw the deceased running, enter into a neighbour’s house and lock himself inside. The group in pursuit of him including the three appellants broke open the door, dragged the deceased out of the house; and set upon him with machetes and sticks. As a result, the deceased suffered fatal injuries. 6.Evans Odhiambo Oluoch, PW2, a resident of Murende, who saw a group of seven, which included the appellants, beating up the deceased told the trial court that the deceased was known to him; and the attackers were using sticks and machetes; Antony Juma Wanyama, PW3, the Assistant chief of Murende received a call from William, a village elder, to the effect that the deceased had been assaulted and killed by a mob of people after he had gone to the home of one Joshua with the intention of setting it on fire. Dr. Cedric Tumbo, PW4, a medical officer of health based at Busia referral hospital, presented the post mortem report prepared by Dr. Oketch, which showed that the cause of death was severe head injury secondary to penetrating injury by a sharp object. 7.Eunice Namatse, PW5, the investigating officer confirmed that the appellants were consequently charged for the death of the deceased, following investigations which revealed that the deceased was assaulted and fatally injured by the three appellants and others who included one Joshua, who disappeared from the area and could not be traced to be arraigned in court. It was further revealed that the deceased and Joshua were not in good terms and this may have prompted the deceased to set fire to a house belonging to the said Joshua. 8.The appellants each denied being at the scene of the incident, and indicated in their respective testimonies that they too came to learn that the deceased had died as a result of mob justice. The 1st appellant claimed that he was a village elder and only went to the scene upon receiving information about the incident, but on arrival, he found that the deceased had already been assaulted by a large group of people. He thereafter notified the area chief who then called the police. He confirmed that the deceased was his neighbour, and the person mentioned as Joshua was his step-brother. 9.The 2nd appellant too indicated that he was a casual worker at a local quarry and that he was attracted to the scene by noise. He found the deceased having been lynched by a mob. On seeing him, the mob claimed he was a partner of the deceased involved in the sale of alcoholic drinks from Uganda. He was apprehended and beaten up before being set free. 10.The 3rd appellant also worked in a quarry and was likewise said he was attracted to the scene by noise and screams. On arrival, he learnt that the deceased had been killed by a mob of people. 11.Upon considering the evidence, the learned trial judge held that the fact that the deceased met his death following fatal injuries, sustained in the hands of a group of villagers, who took upon themselves the role of meting out punishment on the deceased, was not in dispute. He stated thus:“What transpired at the material scene on the material date was simply a criminal transaction propelled by a group of people who attempted to right a wrong by committing another more serious wrong of assaulting fatally injuring the deceased on suspicion that he had set the house and of a fellow villager on fire. As manifested by the degree of injuries inflicted upon the deceased, those who assaulted him did so with a clear intention terminating his life. Unfortunately, they succeeded in doing so, the deceased died from severe head injury inflicted by sharp objects. The basic issue for determination was therefore whether the three accused were part of the mob of people who assaulted and fatally injured deceased. The question is actually whether the three accused were positively identified as having been part of the group or mob of people who assaulted and killed the deceased”. 12.The learned judge observed that conditions prevailing, were favourable for positive identification which was by recognition, as the incident occurred in broad daylight; the appellants were well known to the identifying witnesses as they were their village mates, and the possibility of mistaken identity was remote. 13.The learned judge also considered their alibi defences and rejected it, pointing out that the evidence of PW1 and PW2 clearly and squarely placed them at the scene of the incident at the material time; recalling the encounter with the appellants and others, as they menacingly sought the deceased. The evidence of PW1 and PW2 was described as overwhelmingly cogent and credible enough to prove that the appellants participated in snuffing out the life of the deceased. 14.In support of the appeal, the appellants’ advocate filed written submissions in which he identified several issues for determination. At the plenary hearing learned counsel Mr. Luchivya appeared for the appellants whilst Miss Mutellah, the learned prosecution counsel, appeared for the respondent. 15.The grounds set in the memorandum of appeal were that the learned trial judge erred in law and fact: by failing to indicate in his judgement the role played by each of the appellants in the commission of the offence; in convicting them yet the prosecution failed to avail the weapons alleged to have been employed in the commission of the offence and link the same to the appellants; did not take into account the evidence presented by the appellants; and that the sentence passed on to the appellants was excessive considering that they were first offenders and young men. 16.The appellants therefore pray that the appeal be allowed their convictions, and sentences be set aside and in the alternative the sentences imposed be varied. 17.In their joint written submissions, the appellants argue that the learned judge confirmed that the deceased faced the wrath of a crowd in which the appellants were part off, and there was no direct evidence linking them to the assault of the deceased; nor were there any findings by the learned judge as to what made the appellants stand out in the crowd, as to be blamed for the murder in the circumstances; that the learned judge only relied on evidence of the prosecution witnesses; and failed to take into account the appellants evidence; and that the learned judge wrongly exercised her discretion in meting out the sentences, without taking into account of time that the appellants being young persons, will definitely spend their active youth life in prison. They thus pray that the sentences be varied. 18.It is the respondent’s contention that the witnesses properly identified the appellants as active participants in the mob assault. The respondent points out the fact that the appellants were part of a crowd does not absolve liability where individual participation is established through eyewitness testimony;that key witnesses including Geoffrey Linus Ouma (PW1), who testified that, on 10th June, 2020 at 6.00a.m. he was going to his shop at Murende when he met the appellants and they inquired from him the whereabouts of Daniel (deceased). PW1 informed them that he did not know where he was and enquired why they were looking for him. PW1 testified that the 1st appellant informed him that he (the deceased) had burnt the house of one Joshua Osuru. 19.We are further invited to consider the testimony of PW1 that he later saw people running towards the place where the deceased was allegedly hiding; and he saw the deceased run into the house of Mama Dennis; and how the deceased was removed from the said house, and the witness was very specific that: “Josephat Nyongesa (2nd appellant) hit him on the head with a club, and Joshua also hit him on the head with a club. They tied his hands with a rope and took him to his house.” Further, that PW1 was very categorical about their actions, pointing out that 2nd appellant was the first to beat the deceased with a stick. 20.The respondent submits that the evidence is corroborated by Evans Odhiambo Oluoch, PW2, who found the appellants, being among seven people who were beating the deceased using sticks and machetes; and he was able to recognize all the three appellants. He testified that the assailants accused the deceased of burning the house belonging to Joshua Osuru. 21.The respondent argues that the doctrine of joint enterprise applies, as there was evidence demonstrating that the appellants acted together in a joint criminal enterprise resulting in death of the accused, even if the weapons used where not produced; and that the conviction was not based on speculation but on corroborated testimonies of witnesses. In support of this proposition, reference is made to the case of Owino v Republic [2025] KECA 979 (KLR)2 in which the Court of Appeal held that:“The doctrine of common intent holds each person in the criminal enterprise personally liable for the acts of the group, even where the person who rendered the fatal blow is not ascertainable. This Court in Imbwaka & 3 Others vs. Republic [2025] KECA 92 (KLR), stated: “Criminal liability is individual, and even in cases of a mob or group, the doctrine of common intent holds each person in the criminal enterprise personally liable for the acts of the group, even where the person who rendered the fatal blow is not ascertainable. It suffices that the individual accused person did nothing to disengage himself from the acts of the group.” 22.The respondent submits that the prosecution was able to present credible eyewitnesses who gave testimonies linking the appellants to the assault. It is pointed out that to prove the offence of murder, the prosecution was required to prove the following elements of the offence:i.the fact and cause of death of the deceased person,ii.the death of the deceased was as a result of an unlawful act or omission on the part of the accused person; andiii.that such unlawful acts or omission was committed with malice aforethought. 23.In this regard, the respondent refers to the post mortem report which indicated that the cause of death was severe head injury secondary to penetrating injury by a sharp object, confirming that the death attributable to unlawful acts or omissions of the appellants. 24.The respondent maintains that the appellants were placed at the scene of crime by the witnesses who testified, describing them as all being armed with either a machete or a club which they used to strike the deceased person; that the absence of recovered weapons does not negate liability where death was caused by group assault. 25.With regard to malice aforethought, the respondent submits that the appellants were seen beating the deceased with machetes and clubs on the head; that the manner in which the assault was executed and the targeted body part, was a clear manifestation that the appellants intended to cause the deceased death if not to maim him, thus satisfying the ingredient of malice aforethought. The respondent refers to the case of Ombati & 3 others v Republic [2025] KECA 469 (KLR)1 which considered section 21 of the Penal Code and noted as follows:“The evidence implicating the four appellants show that they were all acting in concert in attacking the deceased. They were no doubt pursuing an unlawful purpose of assaulting the deceased of which death was a probable consequence. In the circumstances, the appellants must all be deemed to have had the common intention of committing the offence of murder which arose from their common purpose of attacking the deceased. From the foregoing, all the ingredients of the offence of murder were proved against each of the appellants to the required standard.” 26.The respondent argues that the trial court considered the defence given by all the appellants, but found it unconvincing, when weighed against the evidence of the prosecution; that a perusal of the judgment will show that the court analyzed the evidence, addressing itself to the defence of the appellants however, pointing out that they had been sufficiently placed at the scene of crime and had actively assaulted the deceased and causing fatal injuries. 27.In relation to the sentences meted, it is the respondent’s contention that they were within the statutory limits for murder. Referring to Ombati & 3 others v Republic (supra), it was submitted that it was trite law that sentencing was a matter that fell within the discretion of the trial court and an appellate court could only interfere in circumscribed circumstances. The Respondent submits that the sentence was neither harsh or manifestly excessive in the circumstances of the case; that the trial court neither acted on a wrong principle or material. In the aforementioned case, the court noted while making reference to the case of Bernard Kimani Gatheru v Republic [2002] KECA 94 (KLR) that:“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.” 28.The respondent thus urges us to find that the appeal lacks merit; that the conviction was based on sufficient evidence and a proper application of the law; the sentence was proportionate to the offence and within the discretion of the court; and therefore, dismiss the appeal in its entirety. 29.What arises for our determination is condensed to whether all the ingredients of the information of murder were proved to warrant conviction of the appellants; whether the appellants were properly identified as the persons who attacked and injured the deceased; whether, their respective defence was duly considered; and whether the sentence imposed on each appellant was manifestly excessive, harsh or cruel. 30.We concur with the respondent that in an information of murder the key elements of the offence required as proof are:i.that the death of the deceased occurred;ii.that the death was due to an unlawful act or omission;iii.that it was the accused who committed the unlawful act or omission which caused the death of the deceased; andiv.that the accused had malice aforethought.In this regard, see in Anthony Ndegwa Ngari v Republic [2014] eKLR. 31.Indeed, there is no contest that the deceased met his death following administration of punishment by a village mob. The contested issue is who were the persons in that mob. To determine whether the identification of the appellants was safe to rely on, the court must evaluate the evidence of the identifying witness to ensure the accuracy. In R. v Turnbull [1976] 3All ER 549, the Court stated:… the Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witnesses have with the accused under observation? At what distance? In what light? Was the observation impeded in any way? As for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? …. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence. Recognition may be more reliable than identification of a stranger but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistake in recognition of close relatives and friends are sometimes made.All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused’s case, the danger of a mistaken identification is lessened. But the poorer the quality, the greater the danger. In our judgment when the quality is good as for example when the identification is made after a long period of observation, or in satisfactory conditions by a relative, a neighbour, a close friend, a workmate and the like, the jury can safely be left to assess the value of the identifying witness even though there is no other evidence to support it; provided always, however, that an adequate warning has been given about the special need for caution.” 32.The appellants were known to PW1 and PW2 as they hail from the same village, in fact they had a short conversation with PW1 as they hunted down the deceased. The encounter was in broad daylight, and was not just a fleeting glance, both PW1 and PW2 watched the chase, the dragging out of the hiding place, and the actual assault, before PW2 was given marching orders. They were consistent in their evidence regarding the manner in which the attack was executed, as well as the weapons used. Each one’s evidence corroborated the other, and placed the appellants at the scene of the incident; and their evidence was not shaken on cross-examination as they both maintained that the appellants were part of the gang that assaulted the deceased. The attack on the deceased happened when there was sufficient daylight, and the witnesses were able to recognize the appellants and see their actions. We are satisfied that PW1 and PW2 were able to clearly see and recognize each of the three appellants who were well known to them as they hailed from the same village. The evidence of recognition is ordinarily more reliable than identification. See Anjononi and Others vs. Republic [1980] KLR where it was held that:“…recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.” 33.In relation to the common intention, the evidence clearly showed that the appellants all participated in beating the deceased and therefore common intention was proved. As for malice aforethought as contemplated under Section 206 of the Penal Code, the evidence of the prosecution witnesses showed that the aim of the appellants in attacking the deceased was clearly to cause him grievous harm, and the nature of the severe injuries suffered by the deceased on the head deep multiple cut wounds inflicted using a sharp object, a delicate body part which when exposed to violent trauma often attracts fatal consequences. The 3rd and 4th ribs were also fractured. We have no hesitation in finding that the appellants had the ultimate intention of eliminating the deceased. See Rex v Tubere s/o Ochen [1945] 12 EACA 63. 34.Indeed, the learned judge duly considered the defences offered, but pointed out that it did not dislodge the strong evidence offered by the prosecution witnesses. The evidence implicating the appellants show that they were all acting in concert in attacking the deceased. Undoubtedly, they were pursuing an unlawful purpose of assaulting the deceased, for which death was a probable consequence. In the circumstances, the appellants must all be deemed to have had the common intention of committing the offence of murder which arose from their common purpose of attacking the deceased. We do not find any misapplication of fact, law or reason; and we are persuaded that having duly considered both versions, the learned judge arrived at a safe conclusion. 35.Although sentencing of an accused person or persons is in the discretion of the court, in this instance, the appellants insist that the learned judge wrongly exercised that discretion in sentencing them without taking into account time span in the life of the appellants who were young persons. They thus pray that the sentences be varied to a lesser period for each. They lament that the respective sentences imposed upon each of them is harsh and excessive. 36.The learned trial judge in meting out the sentences considered the appellants’ plea in mitigation, but noted that the circumstances of the offence were serious and an innocent man had lost his life…it did not matter that the deceased was suspected of having set a house on fire. The accused and others took the law into their own hands. They became prosecutor, jury and judge, and ended up executing the deceased…We are told by prosecution that such injustice is rampant and prevalent in this region of Busia. It must be discouraged and deterred…” 37.We are aware of the holding in Bernard Kimani Gacheru v Republic [supra], that sentence rests in the discretion of the trial court; and must depend on the facts of each case; and on appeal, the appellate court will not easily interfere with 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. 38.The maximum sentence for the offence of murder is death.The trial court was informed that the 1st appellant was a village elder, whilst the other two were young men with young families. The learned judge considered these pleas, and pointed out the aggravating factors in the case, and meted the sentences of 40 and 30 years respectively. Considering the circumstances of the case in particular allegations that the deceased had set a house on fire, the injuries that were inflicted on the deceased; the appellant’s mitigation, and that the appellants have already served 6 years in prison, we consider a sentence of twenty (20) years imprisonment to be appropriate. 39.We therefore set aside the respective sentences that were imposed on the appellants, and substitute thereto a sentence of (20) years imprisonment; The appellants were arrested on 4th July 2020; and released on bond between 17th July 2020 and 24th August 2020. Since the appellants were out on bond during the trial, the period of sentence will be computed from 12th October 2021, being the date of their conviction. Thus, the appeal succeeds partially, failing on conviction, but succeeding on the period of sentence to be served. DATED AND DELIVERED AT KISUMU THIS 29TH DAY OF MAY, 2026........................................JUDGE OF APPEALH. A. OMONDI.......................................JUDGE OF APPEALL. KIMARU.......................................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR