https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1623

Oyugi v Republic (Criminal Appeal E094 of 2023) [2026] KECA 1623 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1623 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E094 of 2023 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 31, 2026 Between Paul Otieno Oyugi Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Homa-bay, (Kiarie Waweru Kiarie J.) dated 22nd July 2021 in HCCRC No. 23 of 2016) Judgment 1.The appeal arises from the judgment of the High Court of Kenya at Homa Bay in Criminal Case No. 23 of 2016, in which the appellant, Paul Otieno Oyugi, faced an information charging him with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the information were that on the 25th November 2016, at Okeke village, Lower Kayambo location in Ndhiwa District of Homa Bay County, the appellant murdered Brighton Ouma Ochieng, (the deceased). 2.The appellant pleaded not guilty to the information and the prosecution set in motion its bid to prove the information against him. In that regard, the respondent called witnesses whose testimonies according to it, formed a chain of circumstantial evidence pointing irresistibly to the appellant in the commission of the offence. Maureen Anyango (PW1) testified that the appellant who was her brother-in-law went to her house and enquired whether her husband was present, and upon being told that he was not, he removed a machete from his jacket and cut her twice before she managed to escape. Makrin Otieno Ouma (PW2) was at the river with the deceased, when the appellant came and asked her about the whereabouts of the deceased’s mother and when he responded that she had gone to Sinyo, he asked the deceased to accompany him home so that he could give him mandazi. 3.Shortly thereafter, she heard the deceased crying and on rushing to the scene, she found him lying on the ground dead. The appellant then carried away the body of the deceased. Benard Otieno Okango (PW3) a nephew of the appellant was informed of the goings on at the home of PW1. On his way there, he came across the body of the deceased lying on the path dead. He raised alarm and members of the public came to the scene. 4.IP Nicholas Kipkoech Lang’at (PW4), the investigating officer received a report of murder and went to the scene which was on afoot path leading to a river. He found a lifeless body of the deceased with deep cuts to the head and back. He got to know that the appellant was responsible for the death, reason being that he had differed with his brother, who was the father to the deceased prior to the incident. He was able to recover the machete used in the commission of the offence. He subsequently caused the body of the deceased to be removed to Homa-bay County hospital mortuary where the post mortem was conducted. The cause of death was opined to be due to head injury. He tendered in evidence the post mortem report. 5.Upon being placed on his defence, the appellant contended that on the material day he was drunk and therefore unaware of what transpired. He further alleged that his family harbored hatred against him because he was born out of wedlock before his mother married into the family, and that this animosity led to his being framed with the case. 6.In its judgment, the trial court dismissed the appellant’s defence of intoxication, noting that intoxication under section 13(2) of the Penal Code requires proof that the appellant did not know what he was doing or that the intoxication was involuntary, and the burden lay on the appellant to establish this defence which he did not. See Maina v Republic [2007] 2 EA 279. His alternative defence that he was earmarked by his siblings because he was born out of wedlock did not also gain traction with the trial court, and was dismissed as an afterthought since it was never put to the prosecution witnesses during his cross-examination of them. 7.It found that the evidence against the appellant was circumstantial but of a conclusive nature. Reverting to Mohamed & 3 Others v Republic [2005] 1 KLR 722 and Sawe v Republic [2003] KLR 354, the trial court held that the inculpatory facts were incompatible with innocence of the appellant and incapable of explanation upon any other reasonable hypothesis than his. 8.For malice aforethought, the trial court drew from section 206 of the Penal Code, noting that the appellant’s deliberate act of luring the deceased, possession of a machete, and the fatal injuries he inflicted on the deceased demonstrated intention to cause death or at the very least, grievous harm. Consequently, the trial court found the appellant guilty of the information preferred, convicted him and sentenced him to death. 9.Aggrieved by the conviction and sentence, the appellant comes to this Court by way of first appeal lamenting that the prosecution didn’t prove all the ingredients of the information as required; that the circumstantial evidence relied on did not meet the legal threshold; that his defence of intoxication was not sufficiently interrogated and lastly that the sentence imposed was unconstitutional. 10.When the appeal was called out for plenary hearing, the appellant was present virtually from Kibos maximum prison being represented by Ms. Awiti, learned counsel. Ms. Moenga, learned counsel, on the other hand, appeared for the respondent. The parties opted to rely entirely on their respective written submissions that they had filed and exchanged. 11.Counsel for the appellant, submitted that the appellant’s defence of intoxication was not sufficiently interrogated. It was further submitted that there was no direct evidence linking the appellant to the information. The prosecution therefore relied on circumstantial evidence that did not meet the threshold to convict the appellant. Counsel also maintained that the prosecution evidence was riddled with contradictions and inconsistencies which ought to have been resolved in favour of the appellant but was not. Besides, crucial witnesses such as Anne Anyango who screamed on the discovery of the deceased body and Victor Otieno who wrestled the murder weapon from the appellant were not called to testify thereby creating a gap in the circumstantial evidence that ought also to have been resolved in favour of the appellant. 12.Counsel further submitted that the post mortem report was tendered in evidence by an incompetent witness and ought therefore to have been disregarded. Finally, it was submitted that the decision of the trial court to sentence the appellant to death was bad in law and should be set aside, citing the Supreme Court decision in Francis Muruatetu & Another v Republic [2017] eKLR, that declared the mandatory nature of the death sentence in murder cases unconstitutional. Counsel emphasized that sentencing must take into account mitigating factors such as age, being a first offender, remorsefulness, and the possibility of reform, and urged the court to consider that the appellant had served almost five years in prison, undergone rehabilitation, and acquired certificates in theological and discipleship training in interrogating the sentence. 13.Counsel ultimately prayed that the death sentence imposed be set aside and substituted with a determinate sentence of fifteen years to run from the date of his conviction should the appeal on conviction be sustained by this Court. 14.On the other hand, counsel for the respondent, submitted that the prosecution proved all the ingredients of the information beyond reasonable doubt, that is, the death of the deceased and its cause, that the appellant was the one who caused the death, and that he acted with malice aforethought in so doing. Counsel emphasized that the evidence of PW1, PW2, PW3 and PW4 consistently placed the appellant at the scene, armed with a machete, luring the deceased away and later fatally attacking him. Accordingly, the circumstantial evidence was sufficient to establish his guilt. 15.Reliance was placed on Musili Tulo v Republic - Cr. App. No. 30 of 2013 and Sawe v Republic (2003) KLR 364, to posit that circumstantial evidence can be as strong as direct evidence when it is incompatible with innocence of the accused and incapable of any other explanation upon any other reasonable hypothesis than the accused’s guilt. 16.Regarding intoxication, Counsel submitted that section 13 of the Penal Code places the burden on the accused to prove that intoxication was involuntary or that it rendered him insane, and that the appellant failed to discharge this burden. His claim of drunkenness was termed an afterthought, with no evidence to show that his judgment was impaired when he chose to fatally attack the deceased going by his actions and conduct. 17.On sentence, the respondent submitted that section 204 of the Penal Code lawfully provides for the death penalty, and while the Supreme Court in Francis Karioko Muruatetu & Another v Republic (supra) declared the mandatory nature of the death sentence in murder cases unconstitutional, it affirmed nonetheless that it remains lawful and may be imposed in deserving cases. It was argued that the brutal and inhumane manner in which the deceased, a child of hardly three years, met his death in the hands of the appellant justified the imposition of the death penalty. 18.Regarding contradictions and inconsistencies in the prosecution case Counsel relying on Richard Munene v Republic [2018] eKLR submitted that minor inconsistencies in the prosecution evidence do not weaken or destroy its case. Counsel therefore urged the court to uphold both the conviction and the sentence. 19.This being the first appeal, our mandate is set out in Rule 31 of the Court of Appeal Rules, and requires us to re-appraise the evidence and draw inferences of fact on the guilt or otherwise of the appellant. We have a duty to reconsider the evidence in totality as laid before the trial court. See Kiilu & Another vs. Republic [2005] 1KLR. 20.With this duty in mind, the two main issues we discern for determination in this appeal are whether the information was proved against the appellant, and whether the sentence imposed was lawful and appropriate in the circumstances. 21.The fundamental elements that the prosecution must prove beyond reasonable doubt to secure a conviction on the information of murder are that a death occurred and its cause, that the death was the result of an unlawful act of commission or omission by the accused and that the act was actuated by malice aforethought. 22.On the first element, there is no dispute that the deceased died.Indeed all the witnesses who testified attested to this fact. The appellant on his part conceded to this fact as well but claimed to have been intoxicated. The post-mortem report produced in evidence confirmed that the cause of death was head injury consistent with blunt force trauma.The body was identified by relatives and the medical evidence corroborated the testimonies of the prosecution witnesses. 23.The point of departure is however, the identity of the perpetrator of the act that resulted in the death of the deceased. None of the witnesses saw the appellant physically hack the deceased to death, and the trial court therefore relied on circumstantial evidence drawn from the testimonies of PW1, PW2, and PW3, which established that the appellant lured the deceased away from the river, was last person seen walking behind him, and shortly thereafter the deceased was found dead. This chain of events formed the basis upon which the trial court convicted the appellant. 24.It is a settled principle of criminal law that the guilt of an accused person may be established either through direct or circumstantial evidence. Circumstantial evidence is that body of evidence which enables a court to infer the existence of a particular fact from other facts or circumstances that have been firmly established. When properly tested, such evidence can be as cogent and compelling as direct evidence. Indeed, in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR, this Court affirmed that circumstantial evidence, when it irresistibly points to the accused and excludes any other reasonable hypothesis, forms a strong and legitimate basis for conviction. In this regard, circumstantial evidence is not a lesser form of proof but, when complete and unbroken, is regarded as one of the most reliable evidence in criminal adjudication. 25.As early as 1928, Lord Hewart, CJ, in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21, captured the essence of circumstantial evidence in terms that remain authoritative:“It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination, is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.” 26.This pronouncement underscores the jurisprudential position that circumstantial evidence, when properly tested and found consistent, is not inferior to direct testimony but can in fact constitute the most cogent proof of guilt. Courts in Kenya have consistently adopted this reasoning, affirming that circumstantial evidence, if it forms a complete and unbroken chain pointing irresistibly to the accused and excluding any other reasonable hypothesis, is sufficient to sustain a conviction. 27.In the present case, the prosecution evidence consistently established that the appellant went to the river, armed with a machete, lured the deceased away from the river and moments later, the deceased was found lying dead. PW2 testified that he saw the appellant walk behind the deceased, heard the deceased cry out loud, and shortly afterwards discovered his lifeless body. He then saw the appellant carry away the deceased body. 28.Regarding the defence of intoxication, we note that it was raised to late in the day. It was never put to the witnesses during cross examination though he was represented by counsel throughout. We agree with counsel for the respondent that section 13 of the Penal Code places the burden on the accused to prove that intoxication was involuntary or that it rendered him insane. It is obvious that the appellant failed to discharge this burden, that is, to show that his judgment was impaired when he chose to attack the deceased, and that the intoxication if at all, was not self induced. 29.The investigating officer (PW4) produced the post-mortem report, which attributed the cause of death to head injury. In the ultimate, we are satisfied that the chain of circumstances, pointed irresistibly to the appellant as the perpetrator. 30.On malice aforethought, the trial court correctly inferred it from the deliberate manner in which the appellant lured the deceased, the choice of weapon used, and the vital parts of the body targeted. In David Wekesa Namachanja v Republic [2021] eKLR, this Court cited with approval the case of Republic v Tumbere S/O Ochen (1945) 12 EACA 63, where the Court of Appeal for Eastern Africa set out the following factors to be considered in determining whether malice aforethought has been established:“The nature of the weapon used; the manner in which it was used; the part of the body targeted; the nature of the injuries inflicted either a single stab/wound or multiple injuries; the conduct of the accused before during and after the incident.” 31.We are therefore satisfied, upon our own evaluation of the evidence, that malice aforethought was proved beyond reasonable doubt. 32.On the second issue, section 204 of the Penal Code prescribes death as the ultimate penalty for murder. However, the Supreme Court in Francis Karioko Muruatetu & Another v Republic (supra), declared its mandatory nature in murder cases unconstitutional, as it deprived courts of discretion to impose any other sentences in appropriate cases. The Court emphasized:“Section 204 of the Penal Code deprives the court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair.” 33.This Court has since applied this principle in cases such as Milton Amugene Luvisia & Another v Republic [2022] KECA 1424 (KLR), where the death sentence was substituted with a determinate term of imprisonment after considering mitigating circumstances. In the present appeal, while the trial court imposed the death penalty, it did not fully address the appellant’s mitigation or consider the possibility of reform. 34.Our independent assessment shows that although the offence was heinous, the law now requires individualized sentencing that balances retribution with rehabilitation. 35.We therefore uphold the conviction as it was properly entered, but on sentence we depart from the trial court’s decision. In line with Muruatetu case (supra), and subsequent jurisprudence, we set aside the death sentence and substitute it with a determinate custodial term of twenty (20) years’ imprisonment from the date of conviction. DATED AND DELIVERED AT KISUMU THIS 31ST 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 original.DEPUTY REGISTRAR