https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1423

Owino & 2 others v Republic (Criminal Appeal E039 of 2023) [2026] KECA 1423 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1423 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E039 of 2023 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 10, 2026 Between Alfred Odhiambo Ogolla 1st Appellant Erick Ouma Owino 2nd Appellant Oyieko Otieno Ouma 3rd Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Siaya (Aburili J.) dated 3rd April, 2023 in HCCR No. E009 of 2022 Criminal Case E009 of 2022 ) Judgment 1.This is a first appeal against the judgment of the High Court of Kenya at Siaya, Aburili J., delivered on 3rd April 2023 in Criminal Case No. E009 of 2022. Alfred Odhiambo Ogolla, Erick Ouma Owino and Oyieko Otieno Ouma, “the appellants”, were arraigned before the said court on an information charging them with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence were that on the night of 1st and 2nd July 2021 at Mahero Village, Nyandorera “A” sub-location in Siaya Sub-County, within Siaya County, jointly with others not before court, the appellants murdered one, Boniface Ochieng, “the deceased”. They pleaded not guilty to the information, and the prosecution was tasked to prove their guilt. It did so by calling a total of 10 witnesses. 2.PW1, Harrison Owino Shikuku, recounted that on 2nd July 2021 at about 3 a.m., while returning home from his aunt’s funeral vigil in the company of Nicholas Ouma Ochieng PW9 and Charles Okello PW2, were suddenly accosted by a hostile crowd accusing them of being cattle rustlers in the area. Despite their explanation that they were innocent of the accusations and were in fact from a funeral vigil, the mob set upon them with pangas and rungus. Word of the attack soon reached PW3 Nobert Bwire Ndombi, a police officer at the vigil through a phone call from PW1. PW3 in turn requested his brother, the deceased who operated a motor cycle business (boda-boda) to ferry him to the scene. On arrival, the crowd turned on them, forcing PW3 to fire in the air, but the crowd became more agitated. PW1 identified the appellants among the assailants as he had known them from childhood as they all after all hailed from his Nyadorera village. Whereas some of those being assaulted eventually managed to escape, the deceased, who was disabled due to a prior accident and could not run as fast, was overwhelmed and fatally assaulted. 3.Charles Okello, PW2, corroborated PW1’s account. He confirmed that they were attacked by a crowd of about 30 people armed with pangas, rungus, and torches, who accused them of being cattle thieves. He too recognized the appellants among the attackers. He also confirmed that the deceased who was, incapacitated by a leg implant, was left behind as the other victims fled and was beaten to death. 4.On his part, PW3, received a distress call from PW1, and rushed to the scene with his brother, the deceased. He found a hostile crowd armed with pangas and rungus, who attacked them and damaged their motorcycle. He fired shots in the air to disperse the mob but was forced to flee, leaving behind the deceased due to his leg injury. He later learnt that the deceased had been killed. 5.PW4, Alphonce Onyango Odhiambo, also after receiving information whilst at the same vigil from PW3 regarding the attack, drove to the scene with relatives but was also attacked forcing him to retreat and drive to Rwambwa Police Post to report the incident. He later learnt that the deceased had been killed. 6.Emily Night Sibili, PW5, the widow of the deceased, was informed of her husband’s death. She later identified his body for purposes of post mortem at the mortuary. The Area Chief, PW6, Paul Onyango Kanoti, was called by the village elder about motorcycles being burnt. On visiting the scene, he found two motorcycles burnt and the body of the deceased lying across the road. He reached out to the police officers at Nyadorera Police Post who came and evacuated the body. 7.Cpl Philip Kigen, PW7, then in charge of Nyadorera Police Post, received a report of the attack and upon visiting the scene found the deceased’s body, burnt motorcycles. He helped in the evacuation of the body to the mortuary. Dr. Juma Gabriel Wekesa, PW8, conducted the postmortem on the body of the deceased. He concluded that the cause of death was severe head injury with intracranial haemorrhage due to sharp trauma. 8.Another eye witness to the fatal assault was PW9, Nicholas Ouma Ochieng. He confirmed, that he too was attacked by a gang of people while leaving the funeral. He identified the appellants among them, as he had known them well for over 10 years. After assaulting him, they burnt his motorcycle. He stated that he saw the appellants assault the deceased with pangas and rungus as well. 9.Sgt John Nzive, PW10, the investigating officer, recorded statements from witnesses who identified the appellants as among the attackers. He confirmed that the deceased’s postmortem report indicated that death was as a result of severe head injuries. He subsequently caused the arrest of the appellants, after which he preferred the information against them. 10.Placed on their defence, the appellants testified and called several witnesses. The 1st appellant stated that on the material day, he went and picked his child from school in Bondo, and took him for prayers at a church in Anduro, where he stayed overnight before returning home the following day. The 2nd appellant, claimed that he was at home asleep when at about 1 a.m. he heard screams and blasts, which he thought were tyre bursts. 11.On his part, the 3rd appellant, stated that he closed his shop early due to Covid curfew, went home, watched news, ate dinner, and slept. At about 1 a.m. he heard gunshots and noises but chose not to go near, fearing that they could be cattle rustlers. 12.Raphael Oduor Oduol, DW4, a boda boda rider, confirmed ferrying the 1st appellant to pick his child from school and later to a church at Anduro for prayers. He stated that they slept at the church and returned the child to school the following morning. DW5, Rosemary Akinyi Odimo, knew the appellants well and that 2nd appellant was her mother’s neighbour. She claimed that she had never known him to be a criminal. DW6, Jacinta Ouma Oduol, also heard gunshots and noises at about 1. 00a.m. on the material day but did not identify anyone. She stated that she knew the appellants as her nephews and in-laws, but never saw them at the scene. 13.Eunice Atieno Ayieko, DW7, the wife of the 3rd appellant, asserted that she was at home with her husband on the night in question. She confirmed that they heard blasts and noises but remained indoors throughout. Stephen Onyango Osinde, DW8, returned from Busia and met the 2nd appellant in his house that morning. Karen Adhiambo Oyieko, DW9, the daughter of the 3rd appellant, was at home with her father that night. She stated that they heard noises and gunshots but remained indoors due to curfew. She insisted that her father was wrongly implicated, as he was at home with her. Further, Jackim Amollo Oluoch, DW10, a preacher, testified that the 1st appellant brought his child to his church at Anduro for prayers on the night in question. He stated that he prayed for the child and that the 1st appellant slept at the church until morning. 14.Upon a careful evaluation of the evidence, the trial court determined that the prosecution had discharged its burden of proof beyond reasonable doubt. In particular, it found that the recognition evidence tendered by PW1, and PW2, was credible, consistent, and sufficient to establish the identity of the appellants as part of the group that fatally assaulted the deceased. The court emphasized that both witnesses knew the appellants well prior to the incident, interacted with them regularly, and were able to recognize them by voice, appearance, and torchlight illumination at close range. Their testimony was corroborated by PW9, who also identified the appellants as among the assailants. The trial court further held that the medical evidence by PW8 confirmed the occurrence of a violent assault on the deceased leading to his death. The postmortem revealed multiple sharp injuries, fractures, dislocations, and intracranial haemorrhage, which were consistent with the eyewitness accounts of the deceased being beaten with pangas and rungus. 15.The trial court also considered the testimonies of PW3, PW4, PW6, and PW7, which collectively established the sequence of events, the presence of a hostile mob, and the recovery of burnt motorcycles and personal documents at the scene. The court found that although some witnesses such as PW3 and PW4 could not identify the attackers, their evidence corroborated the occurrence of the attack and the circumstances under which the deceased was killed. Turning to the defence, the court found the appellants’ accounts to be mere denials and alibis unsupported by credible evidence. The trial court concluded that the defence did not raise reasonable doubt as to the appellants’ involvement. In the end, the trial court held that the prosecution had proved all the elements of murder and accordingly convicted them of the information and sentenced to 25 years imprisonment. 16.Aggrieved by the conviction and sentence aforesaid, the appellants, jointly lodged this appeal on the grounds that the trial court erred in law and fact in: sentencing them to 25 years each imprisonment which was manifestly harsh and excessive given the circumstances of the case; purporting to apply the principles of sentencing as set out in the Muruatetu case, but nonetheless imposed a severe sentence without evidence that the appellants actually assaulted the deceased; wrongly relying on allegations of what they did to other witnesses rather than direct evidence linking them to the fatal assault; convicting them solely on the principle of common intention despite the absence of proof that they had assembled with others for the purpose of committing assault or murder; improperly attributing to them acts committed by other persons not brought before the court and rejecting their alibi defences. 17.The appeal was heard by way of written submissions. When called out for plenary hearing, Mr. Onyango teaming up with Mr. Osala, learned counsel appeared for the appellants while M/s Mumo, learned prosecution counsel appeared for the respondent. 18.Counsel for the appellants submitted that the trial court relied principally on the evidence of PW1 and PW2, who alleged that the appellants were part of a group that assaulted the deceased. Counsel emphasized that PW1 and PW2 ran away and left the deceased behind, and therefore could not know who fatally assaulted him. They pointed out that even in their testimony, the witnesses did not state with certainty who assaulted the deceased, only referring vaguely to “the attackers” or “the people.” As for PW3, they argued that although he came to the scene, he admitted that he was a visitor in the area and could not identify anyone of them among the assailants. 19.In their view, the evidence led did not directly implicate the appellants in the murder of the deceased, and the trial court ought to have exercised greater restrain and caution before concluding that they were involved. They argued that the only evidence against the appellants related to alleged assaults on the witnesses, not the deceased. 20.Counsel further submitted that the events of the night occurred in two stages: first, PW1 and PW2 were accosted and beaten by a large group; second, the deceased arrived with PW3, who fired shots in the air, causing commotion in which PW1, PW2, and PW3 escaped, leaving the deceased behind. They argued that the group had gathered to patrol the village against rampant cattle theft, and that the trial court erred in ascribing a murderous common intention without considering the true purpose of the gathering. They contended that if some members acted outside the group’s intention, they should be punished individually and not collectively. 21.They relied on Rex v Tabula Yenka S/o Kirya & 3 others [1943] 10 EACA 51, where the Court held that common intention must be inferred from presence and conduct, but cannot be stretched to cover acts hatched later in chaos. They argued that the killing occurred after gunshots were fired and witnesses fled, and therefore the appellants could not be held liable for the actions of unknown individuals. Counsel went on to submit that while prosecution witnesses placed them at the scene, their defence evidence supported their separate alibis. It was argued that the trial court wrongly rejected their alibi evidence, relying instead on peripheral and contradictory issues such as distances from their homes to the scene. They cited John Mutua Munyoki v Republic [2017] eKLR, where the Court stressed the importance of carefully evaluating evidence that is contradictory and inconsistent. 22.On sentence, counsel took the view and urged that the sentence should not have exceeded five years. They cited Bonaya Tutu Ipu & another v Republic [2015] KECA 335 (KLR), where a murder conviction was reduced to manslaughter with a ten-year sentence, and John Onyango Obala v Republic [2011] KECA 323 (KLR), where the Court emphasized proper consideration of mitigating factors. They also relied on Chai v Republic [2022] KECA 495 (KLR), where proportional sentencing was stressed and emphasized. 23.Ms. Mumo, in opposition to the appeal, submitted on two broad issues: whether the evidence presented was sufficient to prove the information against the appellants, and whether the trial court properly meted out the sentence. Counsel submitted that the prosecution discharged its burden of proof satisfactorily. She cited Miller v Ministry of Pensions [1947] 2 ALL ER 372, where Lord Denning explained that proof beyond reasonable doubt does not mean proof beyond any shadow of doubt, but must carry a high degree of probability. 24.Counsel argued that all the ingredients of the offence of murder were proved. The postmortem report confirmed that the deceased died of severe head injury with intracranial haemorrhage due to sharp trauma, consistent with a vicious attack. PW1, PW2, and PW9 positively identified the appellants, whom they knew well, as among the assailants. She submitted that the evidence was credible and sufficient, and the trial court rightly rejected the appellants’ alibi defences. 25.On sentencing, counsel noted that section 204 of the Penal Code prescribes death as the ultimate penalty for murder. The trial court, however, considered mitigation proffered and imposed a custodial sentence of 25 years. She argued that sentencing is a matter of judicial discretion, and appellate courts only interfere where the sentence is illegal, based on wrong principles, or manifestly harsh and excessive. She cited Arthur Muya Muriuki v Republic [2015] eKLR and Shadrack Kipchoge Kogo v Republic [2015] eKLR, where the Court reiterated that sentencing is principally the work of the trial court and interference with sentence is only justified in such circumstances as aforesaid. 26.This Court, being aware of its duty as a first appellate court, has had to revisit the entire record, reproduced the evidence tendered in the trial court, albeit in an abridged form in a bid to discharge its statutory mandate which is that:“The first appellate court must reconsider the evidence, evaluate it itself, and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect.”See Okeno v Republic [1972] EA 32, 27.From the record and the submissions of both parties, three issues arise for determination: 1.Whether the prosecution proved the offence of murder against the appellants beyond reasonable doubt. 2.Whether the trial court properly invoked the doctrine of common intention under section 21 of the Penal Code and 3.Whether the sentence imposed was lawful and appropriate in the circumstances. 28.Section 203 of the Penal Code defines murder as the unlawful causing of death of another with malice aforethought. Going by the above definition therefore, the prosecution must prove the death of the deceased and its cause, that the death was unlawful and was caused by the accused, and in so doing, the accused was actuated by malice aforethought. Of course, we agree with the sentiments of Lord Denning in Miller v Ministry of Pensions (supra), that proof beyond reasonable doubt of the above ingredients does not mean proof beyond the shadow of any doubt but must carry a high degree of probability. 29.In this appeal, the death of the deceased and the cause thereof was never in contention. Indeed, PW1 through to PW 10 in one way or another came across the deceased’s body. Nor did the appellants dispute the fact of death. PW8 on the hand confirmed the cause of death as severe head injury with intracranial haemorrhage due to sharp trauma. 30.On the identity of the perpetrators, PW1, PW2 and PW9, knew the appellants well and positively recognised them among the assailants. They were all from the same village as the witnesses. There was abundance of light at the scene of crime. Indeed even some of the witnesses even called out the appellants by name as they protested their innocence. Neither did the appellants deny that the said witnesses knew them as they claimed. So that this was a clear case of recognition as opposed to identification of a stranger in difficult circumstances. Indeed, in the seminal decision of Anjononi v Republic [1980] eKLR, this Court reiterated that the recognition of an assailant is more assuring, satisfactory, and reliable than identification of a stranger, as it relies on the witness’s prior personal knowledge and familiarity with the offender. We are satisfied that the recognition evidence was consistent and credible, and it was proper for the trial court to act on it to found a conviction. 31.How about malice aforethought? what constitutes malice aforethought is set out in section 206 of the Penal Code. However, in Sango Mohamed Sango & another v Republic [2015] KКЕСA 178 (KLR) the court held as follows;On the question of malice aforethought, the court is entitled, in determining its presence or absence, to take into account among other things, factors such as the part of the body that was targeted, the type of weapon used, if any, and the type of injuries inflicted upon the deceased. 32.We note that the circumstances of the offence arose in the context of rampant cattle rustling in the area, and the mob appeared to have acted spontaneously on suspicion that the deceased was among the rustlers. It is also important to note that the deceased was not among those that were initially attacked. He rode to the scene of crime in the company of PW3 in response to frantic call from PW1. He was thus a victim of circumstances and had it not been for his disability, perhaps he would have fled the scene as others and survived. In other words, the appellants had not gone out of their way to hatch a plan and thereafter execute it by killing the deceased. Given the circumstances of the offence, we doubt whether malice aforethought was proved. In Nzuki v Republic [1993] KLR 171, this Court held that malice aforethought must be proved and cannot be presumed. In the premises, we are satisfied that while the unlawful killing was proved, malice aforethought was not. The proper conviction should therefore have been for of the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. 33.On the second issue, section 21 of the Penal Code provides that when two or more persons form a common intention to prosecute an unlawful purpose, each is deemed to have committed the offence. In Rex v Tabula Yenka S/o Kirya & Others [1943] 10 EACA 51, the Court held that common intention may be inferred from presence, conduct, and omission to disassociate oneself from the assault. In this case, the appellants were part of a hostile mob that accosted the deceased and his companions, armed with pangas and rungus. Their participation was not passive but active. The deceased, incapacitated by a leg injury, was left behind and fatally assaulted as the other victims fled the scene. We are satisfied that the inference of common intention was properly drawn. The appellants shared a common intention to assault the deceased but not to kill. 34.In view of our determination that this was a case of manslaughter as opposed to murder, it is not necessary to consider the third issue framed regarding the sentence imposed following the appellants’ conviction for the offence. We shall however, now deal with the appropriate sentence that we should impose for the offence of manslaughter. 35.In Bonaya Tutu Ipu & Another v Republic [2015] KECA 335 (KLR), the Court substituted a murder conviction with manslaughter and imposed a ten-year sentence. Similarly, in John Onyango Obala v Republic [2011] KECA 323 (KLR), the Court reduced a sentence after considering mitigating circumstances. Considering the circumstances of rampant cattle rustling in the area, the spontaneous nature of the mob attack, and the absence of premeditation, we are satisfied that a custodial sentence of fifteen (15) years’ imprisonment is appropriate and proportionate. 36.In the result, we are satisfied that the prosecution proved the unlawful act leading to death of the deceased but failed to establish malice aforethought. The doctrine of common intention was properly invoked in convicting the appellants but only to the extent of assault, not murder. The conviction for murder is therefore set aside and substituted with a conviction for manslaughter contrary to section 202 as read with section 205 of the Penal Code. We impose a sentence of fifteen (15) years’ imprisonment from the date of their arraignment in the trial court. The appeal succeeds to that extent. DATED AND DELIVERED AT KISUMU THIS 10TH DAY OF JULY, 2026.ASIKE-MAKHANDIA…………………….…….………JUDGE OF APPEALE.C. MWITA………………………..….………JUDGE OF APPEALB. ONGAYA………………………..…….……JUDGE OF APPEALI certify that this is a true copy of the originalDEPUTY REGISTRAR