Paul & another v Republic (Criminal Appeal E291 of 2022) [2026] KECA 1162 (KLR) (12 June 2026) (Judgment)

Paul & another v Republic (Criminal Appeal E291 of 2022) [2026] KECA 1162 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1162 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E291 of 2022 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA June 12, 2026 Between Moses Sumba Omondi Paul 1st Appellant Kevin Otieno Ogot 2nd Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Homa Bay (Kiarie, J.) dated 14th November 2022 in HCCRC No. E016 of 2021 Criminal Case E016 of 2021 ) Judgment 1.The appellants were charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence were that on 25th February, 2021 at Shauri yako estate in Homa Bay Sub-County within Homa Bay County, the appellants, jointly with another not before the Court, murdered Janevive Adienge (the deceased). The 1st and 2nd appellants herein were the 2nd and 1st accused, respectively before the trial court. The appellants denied the information. 2.The prosecution called seven witnesses during the trial. Dr. Jenipher Kerubo Nyangweso (PW1) produced the report on the postmortem she performed on the body of the deceased on 03rd March, 2021. She observed a deformed right upper knee, internal lacerations on the stomach with whitish and creamish substances, and a ruptured small gut. She testified that the suspected cause of death was ingestion of poisonous substances, leading to corrosion of the stomach. 3.Tabu Jonathan Odiero (PW2) recalled that on 25th February, 2021, he was outside his house when he saw the 2nd appellant handing over a green bag to Joyce (PW3), before the two entered PW3’s house. After a short while, he heard PW3 cry, “he has killed my child”, and then saw the 2nd appellant running away with a syringe. He raised an alarm and some boda-boda riders intercepted the 2nd appellant and brought him to the scene. He testified that the child was rushed to hospital, the assistant chief arrived at the scene and the 2nd appellant was then escorted to the police station. He noted that the syringe had some whitish substance. PW2 had never seen the 1st appellant. 4.Joyce Adhiambo (PW3), the deceased’s mother, noted that the 1st appellant is from her grandmother’s home. She testified that in July 2020, the 1st appellant called and asked her to collect an item from him at Homa Bay Hospital. At the hospital, the 1st appellant gave her some sugar, wheat and salt, and told her he had a way of helping her disabled child, the deceased, through an NGO. The 1st appellant further told her that they would send a person to her home to treat the child. PW3 recounted that in February 2021, she received a call from the 2nd appellant, whom she did not know, asking her to meet him. She met the 2nd appellant and took him to her house. The 2nd appellant then gave her a form to fill in the names of her child, herself and her husband to assist her in getting some items. Thereafter, the 2nd appellant gave her child some medicine orally using a syringe and when the child started to convulse, he left the house running but was arrested. She further testified that the child was taken to hospital and she was informed the child had been poisoned. She did not know the relationship between the appellants. 5.George Ramogi Andiege (PW4) testified that he found the 2nd appellant being beaten by members of the public for allegedly poisoning his child, the deceased. The 2nd appellant was taken to the police and the child died after three days. PW4 stated that when Lucas took the child’s birth certificate, he did not inform him that he had a life insurance policy. He confirmed PW3’s maternal uncle that her maternal Lucas Odhiambo Okello (Lucas) had registered the deceased in the policy. He also noted that he did not know the 1st appellant before the incident. 6.Jane Nabututa Waya (PW5), a government analyst, produced a report dated 20th April, 2021. She testified that no poisonous substance was detected in the intestines, liver and lungs, while the yellowish liquid in the syringe was organophosphate based pesticide that is fatal when ingested. 7.Derrick Oduor Kinde (PW6), a customer service agent with Prudential Life Insurance Kisumu Branch, gave testimony concerning the policy in question (PMC8012501). He testified that the deceased was a dependant, PW3 was the policyholder and Lucas was the next of kin. He noted that PW3, whom Lucas introduced to them, did not visit their offices. It was Lucas who handed in the necessary details, which they verified by contacting PW3 using the number he provided, and she accepted the insurance policy. PW6 explained that, since Lucas was the only beneficiary in the policy, he would benefit if PW3 passed on and that if the deceased passed on, PW3 would be a beneficiary. PW6 did not know the appellants. 8.No. 73533 CPL Justus Welube (PW7) was the investigating officer in the case. He confirmed that members of the public brought in the 2nd appellant to the Homa Bay Police Station on 25th February, 2021 on allegations of administering an unknown substance to the deceased and had recovered some documents from the 2nd appellant’s wallet. He testified that on the said date, the 1st appellant met the 2nd appellant at Migori and both travelled to Homa Bay to meet PW3. The 2nd appellant administered a substance to the deceased using a syringe, which was handed over to PW7 by the area chief. PW7 further testified that he took the syringe and substances collected after the post- mortem to the government chemist. He stated that he traced the 1st appellant in Migori through the cellphone number used to communicate with PW3. The deceased’s mother also identified the 1st appellant. 9.The defence called three witnesses. In his sworn testimony, the 2nd appellant (DW1) stated that he was a boda-boda rider at Homa Bay town. He recounted that on 25th February, 2021, Lucas gave him some shopping to take to PW3. He had not known both Lucas and PW3 before the said date. The 2nd appellant testified that he delivered the items to PW3 and left, but after hearing screams shortly thereafter, he returned and was arrested in the process. He was later told at the police station that the items he had brought to PW3 had caused the death of a child. According to the 2nd appellant, he was in PW3’s house for about one minute and did not see the deceased. 10.The 1st appellant (DW2) also gave sworn testimony that he had been admitted at Migori County Referral Hospital from 22nd to 26th February, 2021. He stated that PW3 was Lucas’ niece and that Lucas’ mother was his father’s sister. He denied reaching out to PW3 through a call or being aware that she was insured. He also denied participating in the deceased’s death. The 1st appellant further stated that he met the 2nd appellant when they were charged together in the case. 11.The 1st appellant’s brother, Kevin Oginga Sumba (DW3), testified that he was with the 1st appellant in the hospital from 22nd to 26th February, 2021 as his caregiver. 12.In its judgment delivered on 14th November, 2022, the trial court found that the prosecution had proved the offence of murder against each of the appellants. The trial court accordingly convicted and sentenced the appellants to death for the reason that the offence was premeditated. 13.The appellants are aggrieved and dissatisfied with this decision and therefore lodged the present appeal. They pray that the appeal be allowed, the conviction be quashed, the death sentence be set aside and that they are immediately released. 14.The appellants’ grounds of appeal as deciphered from the record are that the prosecution failed to establish, beyond reasonable doubt, the ingredients for the offence of murder and the conviction was therefore not safe; the 1st appellant’s alibi defence was disregarded; and, the sentence be set aside. The appeal was canvassed by way of the written submissions for appellants dated 27th January, 2026 for 1st appellant; 14th April, 2025 for 2nd appellant; and, for the respondent, dated 27the April, 2026. At the hearing of the appeal on 29th April, 2026 learned counselMr. Sala appeared for the 1st appellant while Mr. Okumu appeared for the 2nd appellant respectively. The learned Principal Prosecution Counsel Ms. Onyango appeared for the respondent. Counsel present fully relied on the written submissions. 15.The 1st appellant’s submissions are dated 14th April, 2025 and filed by Mudeyi Okumu & Company Advocates. He submitted that the conviction and death sentence imposed on them were erroneous in fact and law for the following reasons:a.No evidence was adduced in court to show the appellants were in any way involved in a conspiracy to commit a felony.b.The prosecution’s evidence fell short of shifting the burden of proof to the defendants in a matter whose standard of proof is beyond reasonable doubt.c.Since the prosecution’s evidence lacked any probative value, the trial court depending on it for conviction was prejudicial to the appellants’ rights.d.Malice aforethought was never established, yet the trial court saw it fit to conjure a rationale for establishing a murder verdict.e.There was no proof, medical or otherwise, of the proximate cause of the murder, if at all, as adduced during the trial.f.There was a total dearth of a forensic foray into the allegations and evidence establishing whether what was in the syringe was connected to the death of the deceased, as examination of the same could not trace the substances found in the syringe in the deceased's body.g.The trial court relied solely on uncertain, hasty and generalized evidence that was further devoid of cogent corroboration; from the evidence, the cause of death could have been perpetrated elsewhere.h.There was no proper link made between the appellants and the offence.i.The rejection of the 1st appellant’s alibi was out of proportion and prejudicial to his case.j.There was no evidence of communication established between the two the appellants.k.As much as Section 204 of the Penal Code provides for death sentence, it has long been an anathema to human rights. 16.It was the 1st appellant’s submission that whereas PW7 stated that the two appellants travelled together from Migori to Kisumu to meet PW3, the testimony by PW3 did not mention her meeting two people. That PW7 failed to provide that evidence. He noted that PW5’s testimony eroded the cogency of the evidence proffered by PW1, as it was found that no poisonous residuals were detected in the deceased’s intestines, liver and lungs. That although PW5 found traces of organ phosphate-based pesticide that can be fatal when ingested, the same was conclusively ruled out as having been ingested by the deceased. That the evidence that the 2nd appellant used a syringe to administer a fatal poisonous substance was rebutted and invalidated in its entirety to the appellants’ benefit. 17.The 1st appellant questioned the value of the prosecution’s evidence on the issue of the insurance policy, which concluded that no money had been remitted for the policy. That the deceased had been insured for the benefit of PW3 and Lucas, and not the appellants. That from this evidence, only two people could have had any reason to kill the deceased. The 1st appellant urged this Court to overturn the trial court’s verdict on account of failure to discern malice aforethought. He further urged that courts have upheld that it is the duty of the prosecution to prove its case beyond reasonable doubt (Festus Mukati Murwa v R [2013] eKLR). Apart from malice aforethought, the prosecution ought to prove the death of the victim, the cause of death and the role of the accused in causing the death. The 1st appellant’s position was that the gaps in the prosecution’s case raise doubts and do not prove the guilt of the appellants beyond a reasonable doubt. 18.The 1st appellant further submitted that the trial court declared them first offenders and that its only reason for imposing the death sentence was that they had malice aforethought. He argued that in the Francis Karioko Muruatetu & another v Republic [2017] eKLR, the Supreme Court of Kenya declared the mandatory nature of death penalty for murder to be unconstitutional. The Supreme Court did not however invalidate the death penalty but left it to courts to find the right sentence based on other factors. The 1st appellant stated that the trial court did not consider the Muruatetu jurisprudence. That the death penalty debate has raged for years in many jurisdictions, and the Kenya National Commission on Human Rights has been advocating for the end of the death penalty. He contended that the trial court should have deconstructed the testimonies and mitigation factors in justifying the death sentence. 19.The 2nd appellant’s submissions are dated 27th January, 2026 and filed by Sala & Mudany Advocates. He submitted that proof of death alone is insufficient to sustain a murder conviction and that the prosecution ought to have established the cause of death and linked it to the unlawful act or omission of the appellants. According to the 2nd appellant, malice aforethought was not proved. That there was neither evidence of intention to kill or cause grievous harm nor proof that the appellants knew death would probably result from the alleged act. That the allegation that “medicine” was administered without scientifically proving its nature or effect meant the prosecution failed to establish malice aforethought. 20.Further, the 2nd appellant asserted that the prosecution relied entirely on circumstantial evidence, whose chain in the case was incomplete. That there was no scientific or medical evidence linking the alleged substance administered to the actual cause of death. That these gaps left room for speculation and failed the test set out in Musili Tulo v Republic [2014] eKLR, that suspicion cannot be a basis for conviction. The 2nd appellant argued that the alleged use of a syringe was not corroborated by medical evidence, toxicology analysis or examination of the syringe. That the evidence against him failed to meet the standard for circumstantial evidence. He referred to Sawe v Republic [2003] KLR 364, in which this Court held that circumstantial evidence must point irresistibly to the accused and must exclude all other reasonable hypotheses consistent with innocence. 21.The 2nd appellant urged that his defence was consistent, plausible and was never displaced by the prosecution for his conviction to stand. He questioned the prosecution’s failure to charge or adequately investigate one Lucas, who was introduced as a critical alternative suspect. In this regard, the 2nd appellant relied on the case of Bukenya v Uganda [1972] EA 549, in which the court held that where the prosecution fails to call material witnesses without explanation, the court is entitled to draw an adverse inference that their evidence would have been unfavourable to the prosecution. 22.The 2nd appellant further submitted that the prosecution failed to adduce any evidence that the appellants acted jointly, rendering the finding of joint liability unsustainable. That common intention under Section 21 of the Penal Code must be proved by evidence showing participation and a shared purpose. He relied on the case of Njuki & 4 others v Republic [2002] 1 KLR 771 in which this Court held that common intention cannot be inferred simply because accused persons are charged together, and it must be established by evidence. He further argued that when imposing the death sentence, the trial court neither considered mitigation nor applied the principles laid down by the Supreme Court in Francis Karioko Muruatetu & another v Republic [ supra]. The 2nd appellant urged this Court to re-evaluate the evidence and draw its own conclusions as a first appellate court. 23.The respondent’s submissions dated 27th April, 2026 are by the learned Principal Prosecution Counsel, Catherine Onyango. She summarized the grounds of appeal to be: that the prosecution had failed to establish its case beyond reasonable doubt; that the information was defective; that the decision to charge the appellant was discriminatory; and whether the sentence was proper. 24.Ms. Onyango submitted that the prosecution's case was proved to the required standard. First, that there was sufficient evidence to prove that the deceased died as a result of poisoning. Second, that there was enough evidence that the two appellants collaborated to inflict the injuries on the deceased. That the 2nd appellant was arrested at the scene and the weapon (syringe) used to cause the death of the deceased was recovered; with PW2 and PW3 also placing him at the scene. That the 1st appellant had earlier called the deceased mother and informed her he would send someone to treat her child and also get an NGO to help her, when that was not the case. Third, that malice aforethought was proved as defined under Section 206(a) of the Penal Code: that is, 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. That it is unclear why the 2nd appellant, a boda-boda rider, would administer a substance found to be poisonous unless it was with the intention to kill. The respondent urged that all the elements of the offence of murder and identity of the perpetrators were therefore proved beyond reasonable doubt. 25.Counsel for the respondent further submitted that the information was not defective, as it is the postmortem form and the prosecution witnesses who adduced evidence to prove the cause of death. That the appellants appreciated the information against them through the witness statements supplied to them. Ms. Onyango denied that the decision to charge the appellants was discriminatory, asserting that the evidence showed they committed the offence with others not before court. 26.Counsel urged that sentencing is an exercise of discretion that an appellate court will ordinarily not interfere with that exercise unless it was exercised whimsically. They submitted that the trial court was cognizant of the Supreme Court’s decision in Francis Karioko Muruatetu & another v Republic (supra), which is why he considered the mitigation and circumstances of the case in its Ruling. She thus urged this Court not to interfere with the sentence and to dismiss this ground of appeal. 27.This is a first appeal and we must re-examine and reconsider both matters of fact and matters of law. We must weigh the evidence, assess the credibility of witnesses, and draw our own independent conclusions. We will rely on the record including the transcripts, evidence, and exhibits presented during the original trial to identify any material errors. We will assess the record to establish whether the trial court made errors of law or misapprehended the facts, such as improperly admitting evidence or failing to properly consider the defense. Our primary role is to re-evaluate, re-assess, and re-analyze the entire evidence on record to arrive at our own independent conclusions while making the allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses as was held in Okeno v Republic (1972) EA 32 thus;“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.” 28.The two broad issues for determination in this appeal are whether the prosecution established ingredients for the alleged information of murder, beyond a reasonable doubt, so as to sustain the conviction as was arrived at by the trial Court; and, if in the affirmative, whether the trial Court exercised the discretion to impose the death sentence judiciously. 29.The offence of murder is established when a person unlawfully causes the death of another human being with malice aforethought. The prosecution bears the burden to prove three essential ingredients beyond a reasonable doubt: death of the deceased and the cause of that death; the death must be the result of a deliberate, unlawful act or a criminal omission by the accused; and, the accused harboured malice aforethought at the time of the offence. In Anthony Ndegwa Ngari v Republic [2014] KECA 424 (KLR) this Court held as follows;“ 11.For the offence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are:(a)the death of the deceased and the cause of that death;(b)that the accused committed the unlawful act which caused the death of the deceased and(c)that the Accused had the malice aforethought. (See Nyambura & Others -vs- Republic, [2001] KLR 355).” 30.The appellants’ and the respondent's counsel are in agreement about the fact of death of the deceased. However, parties disagree on the issue of the cause of the death. As correctly submitted for the appellants, proof of death alone is insufficient to sustain a murder conviction and that the prosecution ought to have established the cause of death and linked it to the unlawful act or omission of the appellants. The postmortem form states that the circumstances of the death were that the deceased had been poisoned.PW1 was the doctor who performed the postmortem and testified that per the postmortem report, the cause of death was suspected to be ingestion of poisonous substances leading to corrosion of the stomach. PW5 was the Government Analyst at Kisumu and he testified thus, “I prepared this report after doing the analysis. A syringe marked A containing a yellowish liquid, a white plastic container containing small and large intestines, a piece of liver and a piece of lung. My findings were that no poisonous substance was detected in the intestines, liver and lungs. The yellowish liquid in the syringe was found to be organ phosphate based pesticide. The same is fatal if ingested. I wish to produce the report (PXH3)” 31.By that evidence of PW1 and PW5 we find that the prosecution failed to establish the cause of death as linking it to the appellants beyond reasonable doubt. In particular, PW5 confirmed that the lethal substance that was in the syringe absolutely absent from the provided samples of the internal tissues of the deceased. The prosecution witnesses offered no evidence in the nature of forensic investigation to suggest that the substance in the syringe could have been ingested by the deceased and yet be scientifically absent in the sampled internal tissues from the deceased’s body that were duly investigated. PW1 while confirming the deceased’s death mentioned the suspected cause of death suggesting it was the contents of the syringe but which PW5’s evidence failed to verify, beyond reasonable doubt. 32.Further, PW7 was the investigating officer. He testified in cross- examination that he had not arrested a person known as Lucas Odhiambo who was the beneficiary in the insurance policy and who was the main culprit. DW1, the 2nd appellant testified that he had not known Lucas as at 25th October, 2025 when Lucas approached DW1 during his ordinary boda-boda business and Lucas gave him shopping items to take to the PW3. Further, DW1 testified that he found a woman where he was directed to, delivered the items and left. After a short while, he heard screams and on going back he got arrested. DW1’s testimony was that he did not see a child in the house as he delivered the items and the items he had delivered included, amongst others, bread, milk, salt and cooking oil. During the delivery, he did not see a child and it took him about a minute. The testimony of the 2nd appellant together with that of PW7 dealt a serious doubt in the prosecution case that the 2nd appellant had indeed orally administered to the deceased the substance that was in the syringe. 33.The prosecution and PW7 offered no reasonable explanation why the said Lucas who PW7 considered to be the main culprit was not charged or called to testify. The prosecution has a duty to present all evidence necessary to uncover the truth, and failing to call a "star witness" or the main culprit, like in the instant appeal, permits us to draw a negative inference that the testimony would have exposed fatal flaws in the prosecution’s case. 34.In Bukenya v. Uganda (1972) EA 549, the East African Court of Appeal laid down three strict rules. First, the prosecution has a duty to call or make available all witnesses necessary to establish the truth, even if the evidence might be inconsistent with the prosecution's narrative. Second, the trial court has the duty to call any witness whose evidence appears essential for a just decision. Finally, if the prosecution fails to call a material witness without a valid explanation, the court is entitled to draw an adverse inference that the evidence, if produced, would have been unfavorable to the prosecution’s case. We are satisfied that the prosecution did not give valid reason for the failure to charge or call Lucas Odhiambo to testify and together with the contradictory testimony of the prosecution witnesses, as we have found, purporting to implicate the appellants, we draw an adverse inference his evidence would have been adverse to the prosecution case. It created an enormous gap in the prosecution's burden of proof and resulted in a failure to prove guilt of the appellants beyond a reasonable doubt. 35.PW3 was the mother of the deceased. She testified that sometimes in February 2021 the 1st appellant telephoned her, gave here certain forms to fill. Sometimes later he told her to take the deceased into the house, and the 1st appellant gave the child some medicine orally using a syringe. Further, the child started to convulse and the 1st appellant left the house running. She raised alarm and he was arrested while he was running away. In cross-examination she testified that the 2nd appellant gave her some food staffs. On the other hand, PW4 was the father of the deceased and he testified that on 25th February, 2022 he found a suspect being beaten by members of the public on allegations that the suspect had poisoned, the deceased. On his part, PW7 testified that it was the 1st appellant who had the shopping and the syringe and is the one who administered it to the deceased. We have re-evaluated the conflicting evidence of the prosecution witnesses and find that the prosecution failed to cogently show who of the two appellants indeed administered to the deceased the substance that was in the syringe. The conflicting evidence cannot be trusted and it scatters the prosecution case in linking the appellants to the alleged unlawful cause of the death, beyond reasonable doubt. 36.We have considered the cumulative testimonies of the prosecution witnesses. It is that Lucas who was the main culprit according to the investigating officer PW7 was not arrested or called to testify and thereby created a serious gap in the prosecution case. PW4’s testimony was not definitive on who of the appellants was the suspect he found being beaten on the material date. We have found that the prosecution failed to establish the cause of death. The gaps further show that the prosecution failed to establish beyond reasonable doubt that the appellants committed the unlawful act that resulted in the death of the deceased. With that finding, it should be an obvious conclusion that the prosecution could not have been able to show malice aforethought because the appellants had not been linked to the cause of the death. The prosecution’s submission that malice aforethought was established per section 206 (a) of the Penal Code collapses because no evidence is on record showing that the appellants, individually or jointly, had an intention to cause the death of or to do grievous harm to the deceased. 37.The upshot is that to the extent of our findings, the prosecution failed to establish all the ingredients for the offence of murder as was alleged against both appellants. The trial Court’s conviction and sentence of both appellants is not sustainable. Accordingly, we find it superfluous to delve into the other issues as raised in the instant appeal. 38.We accordingly allow, quash both appellants’ convictions for the offence of murder and set aside the sentence of death imposed against each appellant. Each appellant is set at liberty forthwith unless otherwise lawfully held. DATED AND DELIVERED AT KISUMU THIS 12TH DAY OF JUNE, 2026.ASIKE-MAKHANDIA............................... JUDGE OF APPEALE. C. MWITA...............................JUDGE OF APPEALB. ONGAYA...............................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR