https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1471

Gichuri v Republic (Criminal Appeal E018 of 2022) [2026] KECA 1471 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KECA 1471 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Criminal Appeal E018 of 2022 M Ngugi, LA Achode & Katwa Kigen, JJA July 24, 2026 Between Peter Maina Gichuri Appellant and Republic Respondent (Being an appeal against the Judgment of the High Court of Kenya at Nyeri (J. Ngaah, J.) delivered on 25th February, 2022 in H.C.CR. Case No. 47 of 2010.) Judgment 1.The appeal before us originates from the judgement of the High Court of Kenya at Nyeri in Criminal Case No. 47 of 2010, wherein the appellant, Peter Maina Gichuri, together with his co-accused Simon Gatama Gichuri and James Gichuki Mwangi, 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 alleged that on 14th November 2010, at Mucharage village within Nyeri County, the three jointly murdered Peter Waweru Kirera. Upon arraignment, each of the accused persons pleaded not guilty, and the matter proceeded to full trial. 2.The prosecution called twelve witnesses to establish its case. The main witnesses as to the facts of the night and the incident were PW1, 2, 5, and 6. PW1, Christopher Kibe Kirera, a brother to the deceased, testified that he was present on the material day, 14th November 2010, and at the material times. PW1 explained that on that date he was at a bar called 'Honey Pot’ in Mucharage Shopping Center with the deceased herein, who was his brother, and also PW 2 and 6. That while at the bar, the appellant and two others came into the bar and asked to be bought beer by the deceased. The deceased explained that he did not have money. Around this point in time, PW1 stepped out, and when he got back into the bar, he found the deceased bleeding from the nose. The deceased told PW1 that he had been hit by the appellant. Around the same time, and because of the incident, the bar owner asked the parties to get out of the bar. 3.PW1, the deceased and others left for home around 8- 9pm. They were, however, attacked on their way by the appellant, in the company of other people, using crude weapons at about 100 metres away from the bar. Owing to the attack, they ran away, but the deceased fell down. PW1 tried to help him escape, but he [PW1] was hit using a metal rod. PW1 then ran, leaving the deceased behind. Upon reaching home, which was nearby, PW 1 came back with another of his brothers, PW 5. They found the attackers gone.The deceased was there and, according to PW1, dead. They called the police, went to the appellant's home, and took the body to Mukurweini mortuary. PW 1 testified that he knew the appellant well and for a long time, as he was from the neighbourhood. The attack location was well lit by the bar light and school lighting. That he could identify the other attackers, as there was sufficient lighting. 4.PW2 and 6 gave the same evidence and said they knew the appellant from the neighbourhood and that the lighting at the scene was adequate to recognise and identify the attackers. 5.PW2 Simon Mwangi Wambui corroborated PW1’s account, narrating that he witnessed the deceased being assaulted by a group in which the accused persons were present. He described the physical confrontation and identified the appellant among those involved. PW3 Evanson Mugweni Wachira gave evidence that he saw the deceased being chased and later assaulted, confirming that the appellant was among the assailants. PW4, John Kirira Gakuna, testified that he arrived shortly after the incident and found the deceased lying injured, recounting that villagers mentioned the appellant’s involvement. PW5, Stephen Mbau Manjara, stated that he saw the deceased being beaten and identified the appellant as one of the attackers. PW6, Stephen Mbau Gakunga, similarly testified that he witnessed the deceased being assaulted and confirmed the appellant’s presence during the attack. 6.The investigating officer, PW7 Inspector Hannington Mwazonga, narrated the steps taken during investigations, stating that witness accounts consistently implicated the appellant and his co-accused. PW8, Corporal Ben Kasaine, testified on the arrest and recovery of exhibits, linking the appellant to the offence. PW9 Dr. Kimathi Paul produced the post-mortem report, confirming that the deceased died of multiple injuries consistent with assault. PW10, John Kimani Kiragu, testified on the chain of events after the incident and confirmed the deceased’s injuries. PW11, Corporal Hudson Henry Masake, gave evidence on the collection of medical reports and statements. Finally, PW12, Dr. Mwenda Moses, produced medical reports relating to the accused persons and confirmed the cause of death as severe trauma inflicted by blunt objects. The prosecution’s case was that the accused persons, acting jointly, assaulted the deceased, leading to his death. The evidence was largely based on eyewitness accounts and medical findings. 7.At the close of the prosecution’s case, the accused were placed on their defence. DW1, Peter Maina Gichuri (the appellant) denied involvement in the murder, stating that he was not present at the scene and that the witnesses had falsely implicated him due to village hostilities. DW2, Simon Gatama Gichuri, similarly denied participation, asserting that he was elsewhere at the material time. DW3, James Gichuki Mwangi, also denied the charge, contending that the prosecution witnesses fabricated their testimonies. Each accused maintained innocence and challenged the credibility of the prosecution witnesses, pointing to contradictions and inconsistencies in their accounts. 8.Upon evaluating the evidence, the learned trial judge found that the prosecution had proved its case beyond a reasonable doubt against the appellant. The 2nd and 3rd accused were acquitted. The court observed that several eyewitnesses consistently placed the appellant at the scene of crime and directly implicated him in the assault upon the deceased. The testimonies of PW1, PW2, PW3, PW5, and PW6 were found credible and mutually reinforcing, each describing the appellant’s active participation in fatally beating the deceased. The medical evidence presented by PW9 and PW12 confirmed that the deceased succumbed to multiple injuries inflicted by blunt objects, injuries which the court held could only have resulted from a sustained and deliberate attack involving and implicating the appellant. 9.The learned Judge further noted that the appellant’s defence amounted to a mere denial and did not sufficiently dislodge the prosecution’s case. The alibi raised was not supported by any independent evidence and was inconsistent with the recognition evidence of the witnesses. The court emphasised that the contradictions pointed out by the defence were minor and did not go to the root of the prosecution’s case. In contrast, the prosecution’s narrative through multiple witnesses was coherent and corroborated by both medical and investigative testimony. 10.On the question of malice aforethought, the court held that the prolonged and vicious nature of the assault, coupled with the use of blunt objects, demonstrated an intention to cause grievous harm or death within the meaning of section 206 of the Penal Code. The court reasoned that the appellant’s conduct revealed both the actus reus and mens rea of murder. While the co-accused were acquitted on the basis that the evidence against them was not sufficiently direct, the appellant’s involvement was found to be clearly established. 11.Consequently, the trial court convicted the appellant of murder under section 203 as read with section 204 of the Penal Code and proceeded to sentence him to 20 years imprisonment in accordance with the law, holding that the gravity of the offence and the circumstances of its commission warranted a deterrent punishment. 12.Through the Memorandum of Appeal dated 11th April, 2022, the appellant set out several grounds challenging both his conviction and sentence. First, he contends that the learned trial Judge erred in law and fact by basing his conviction on circumstantial evidence where none existed, thereby improperly inferring guilt. Second, he argues that the court wrongly found that the evidence against him was direct, despite there being no direct evidence linking him to the commission of the offence of murder. Third, he submits that the trial judge erred in convicting him while acquitting his co- accused, notwithstanding that the evidence against all three was similar, thereby exhibiting discrimination against him. 13.Fourth, the appellant asserts that he was convicted despite the prosecution having failed to prove the offence of murder to the required threshold of beyond a reasonable doubt. Fifth, he challenges the finding that the prosecution had proved both the actus reus and mens rea of murder against him, arguing that the ingredients of the offence were not established. Sixth, he points out that there were material contradictions in the evidence regarding the alleged physical confrontation between him and the deceased, which the court relied upon to infer guilt, but which were never reconciled. 14.Seventh, he faults the trial court for failing to seek a social inquiry report before sentencing, which would have assisted in determining an appropriate punishment. Lastly, he submits that the court disregarded and ignored binding authority cited in mitigation, specifically Republic vs. Catherine Ndungo Muthonka [2019] eKLR, thereby failing to consider relevant precedent. On these grounds, the appellant prays that the appeal be allowed, the conviction quashed, the sentence set aside, and that he be set at liberty unless otherwise lawfully held. 15.The appellant filed written submissions dated 11th May, 2026, in support of his appeal. He argues that the trial court erred in convicting him on the basis of unreliable identification evidence, unresolved contradictions, and circumstantial testimony that did not meet the threshold of proof beyond a reasonable doubt. He begins by reminding this Court of its duty as a first appellate court to re-evaluate and re-analyse the evidence afresh while bearing in mind that it did not have the opportunity to see or hear the witnesses, citing Chiragu & Another vs. Republic [2021] KECA 342 (KLR). 16.The appellant submits that the trial judge wrongly relied on the testimonies of PW1, PW2 and PW6 to place him at the scene of the crime without adequately warning himself of the dangers of identification evidence. He highlights contradictions in PW1’s account, noting that PW1 claimed to have fled to seek help, yet PW7 testified that PW1 was hiding nearby and witnessed the attack. He argues that these mutually exclusive accounts were never reconciled, thereby undermining the reliability of PW1’s identification. He further points to unresolved contradictions regarding lighting and distance, noting that witnesses gave conflicting accounts ranging from electric light, moonlight, and torches and distances between 30 metres and 250 metres. He relies on Omollo vs. Republic (Criminal Appeal 96 of 2018) [2022] KECA 434 (KLR) and Igeria vs. Republic [2025] KECA 370 (KLR) to emphasise the need for caution in visual identification. 17.The appellant stresses that PW6, a classmate and friend who personally knew him, was close enough to separate the initial fight but could not identify any attacker due to the darkness. He submits that if PW6 could not identify him, then PW1’s purported recognition cannot be safely relied upon, citing Paul Etole & Another vs. Republic [2001] eKLR. He also faults the prosecution for failing to call the bar owner, whose testimony, he submits, was crucial in clarifying the initial altercation and who allegedly helped identify the assailants. He argues that this omission raises the inference that the bar owner’s evidence would have been adverse to the prosecution, citing Kamau vs. Republic [2024] KECA 314 (KLR). 18.The appellant further submits that the trial court failed to distinguish between three distinct altercations that occurred that night: the first inside Honey Pot Bar, the second outside the bar, and the third fatal attack along the road. He argues that PW1 was not present during the first or second altercation, and his testimony was contradicted by PW2 and PW3, both of whom admitted they did not see who hit the deceased. He notes that PW2 fled during the second fight and therefore could not have witnessed the fatal attack, yet the trial court treated his testimony as if he had. He contends that the prosecution witnesses conflated the three altercations, leading to a wrongful conviction. 19.On timelines, the appellant submits that the fatal attack occurred between 10:00 p.m. and 11:00 p.m., by which time he was already at home. He highlights contradictions in the witnesses’ accounts, with PW1 stating he returned at 10:00 p.m. to find his brother alive, PW3 claiming he found the body at 9:30 p.m., and PW4 stating he was called at 11:30 p.m. He argues that these inconsistencies were overlooked by the trial court, yet they created doubt as to his presence during the fatal attack. He relies on Sawe vs. Republic [2003] KECA 182 (KLR) to emphasise that suspicion, however strong, cannot form the basis of a conviction. 20.Finally, the appellant raises the issue of the intoxication of key witnesses. PW6 admitted to having consumed beer, while PW1 initially claimed he was drinking soda but later admitted at cross-examination that he had taken keg beer. He submits that intoxication impaired their ability to make reliable observations and identifications, yet the trial court disregarded this factor. He concludes that the conviction was based largely on circumstantial evidence and flawed identification testimony, with material contradictions and omissions left unresolved. He therefore prays that the appeal be allowed, the conviction quashed, and the sentence set aside. 21.The respondent opposed the appeal. Through the submissions dated May 14, 2026, counsel submitted that the prosecution had proved its case against the appellant beyond a reasonable doubt. It was emphasised that the deceased, Peter Waweru Kirera, died as a result of haemopericardium occasioned by blunt chest trauma, as confirmed by the post-mortem report and the testimony of Dr. Kimathi Paul (PW9). Counsel further submitted that PW1 and PW2, who were present at the scene, positively recognised the appellant among the group of men armed with crude weapons who attacked them and the deceased under electric light. While PW1 and PW2 managed to escape, the deceased was left behind and was later found lifeless. 22.The respondent argued that the appellant himself admitted being at the scene of the fight, though he denied participation, and that his presence corroborated the testimony of the prosecution witnesses. Counsel submitted that under section 206 of the Penal Code, malice aforethought was established since the appellant, in the company of others, attacked the deceased with crude weapons, knowing such actions would probably cause grievous harm or death. On sentence, counsel submitted that although no social inquiry report was sought, the trial court exercised its discretion judicially, considered the appellant’s mitigation, and imposed a lawful sentence of 20 years’ imprisonment. Reliance was placed on Fatuma Hassan Salo vs. Republic [2006] eKLR, where this Court affirmed that sentencing is a matter of judicial discretion provided it is exercised on sound legal principles. 23.This is a first appeal, and the duty of a first appellate court is well settled. The court is required to evaluate, analyse, and consider the entire evidence afresh, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. This principle was re-stated, inter alia, in Okeno vs. Republic [1972] EA 32, where this Court stated:“An appellant on a first appeal is entitled to have the appellate court’s own consideration and views of the evidence as a whole. 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. It must itself weigh conflicting evidence and draw its own conclusions.” 24.Similarly, in Kiilu & Another vs. Republic [2005] 1 KLR 174, the Court emphasised:“The first appellate court must itself weigh conflicting evidence and draw its own conclusions. 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.” 25.Having considered the record, the memorandum of appeal, the submissions by both parties on record and the authorities cited, and with the above mandate in mind, the issues we discern for consideration in this appeal include whether the conviction and sentence was wholly dependent on circumstantial evidence and, if so, if the conviction was safe; whether the offence of murder was proved beyond reasonable doubt; what effect, if any, the contradictions in the prosecution’s case had on the safety of the conviction; whether new matters introduced at the appellate stage, such as intoxication and identification, can properly be considered on appeal; and lastly, whether the sentence of twenty (20) years’ imprisonment was fair and appropriate. 26.On the issue as to whether the conviction and sentence were wholly dependent on circumstantial evidence, the law is settled that a conviction may be founded on circumstantial evidence provided the chain of circumstances is so complete, cogent, and points irresistibly to the accused, excluding any other reasonable hypothesis of innocence. The Court has consistently applied this principle. In Sawe vs. Republic (supra), the Court held that suspicion, however strong, cannot be a basis for conviction; circumstantial evidence must be incompatible with innocence and incapable of explanation upon any other reasonable hypothesis than guilt. In Abanga alias Onyango vs. Republic, Cr. App. No. 32 of 1990, the Court emphasised that circumstantial evidence must form a chain so complete that it leaves no doubt that the accused committed the offence. Similarly, in Nzaro vs.Republic [1991] KAR 212, the Court reiterated that where co- existing circumstances weaken the chain, a conviction cannot safely stand. The Court in Musili Tulo vs. Republic [2014] eKLR restated that circumstantial evidence must be carefully tested before a conviction is entered. 27.In the present case, the conviction was not wholly dependent on circumstantial evidence. The trial court relied on direct recognition evidence from PW1 and PW2, who testified that they were with the deceased when the appellant, in the company of others armed with crude weapons, attacked the deceased. Both witnesses positively recognised him, being someone known to them, and also identified the appellant under electric lighting at close range. Their testimony was corroborated by medical evidence from PW9, Dr. Kimathi Paul, who confirmed that the deceased died from haemopericardium caused by blunt chest trauma. The appellant himself admitted being present at the scene, though he denied participation. It is noted that much later, at this appeal, he now changes his position, saying that he was not there. 28.Equally, circumstantial strands reinforced the direct evidence: the deceased was attacked by people who, according to testimony, were organised by the appellant; the attack occurred under sufficient lighting and by people the witnesses recognised; PW1 and PW2 escaped while the deceased was left behind; and the deceased was later found lifeless with injuries consistent with the assault. These circumstances, taken together, formed a coherent chain pointing irresistibly to the appellant. Accordingly, the conviction was supported by direct recognition evidence and circumstantial facts, satisfying the legal threshold under the authorities cited. The trial court’s approach was therefore legally sound and consistent with the jurisprudence of this Court and the law as it stands. 29.On the second issue, as to whether the offence of murder was proved beyond a reasonable doubt, the offence of murder under section 203 of the Penal Code is established where the prosecution proves that the accused caused the death of another person with malice aforethought. Malice aforethought is defined under section 206 of the Penal Code, which provides that it shall be deemed to have been established by evidence of an intention to cause death or grievous harm and/or knowledge that death or grievous harm will probably result therefrom. 30.This Court has consistently held that proof beyond a reasonable doubt requires the prosecution to establish both the actus reus (the unlawful act causing death) and the mens rea (malice aforethought). In Nzuki vs. Republic [1993] KLR 171, the Court stated:“Before an accused person can be convicted of murder, the prosecution must prove beyond reasonable doubt that he had formed the intention to either kill or cause grievous harm to the deceased.” 31.Similarly, in Republic vs. Tubere s/o Ochen [1945] 12 EACA 63, the Court emphasised that malice aforethought may be inferred from the nature of the weapon used, the manner of its use, and the part of the body targeted. In the present case, the prosecution adduced evidence that the deceased died from haemopericardium caused by blunt chest trauma, as confirmed by PW9, Dr. Kimathi Paul. PW1 and PW2 testified that they were with the deceased when the appellant, in the company of others armed with crude weapons, attacked them. Both witnesses positively recognised the appellant as a person known to them and also identified the appellant under electric lighting at close range. Their testimony was consistent and corroborated by the medical evidence. As we noted earlier, the appellant himself admitted being present at the scene, though he denied participation. 32.The Court has held that recognition evidence is more reliable than identification of a stranger. In Anjononi & Others vs. Republic [1980] KLR 59, the Court stated:“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.”Here, PW1 and PW2 recognised and identified the appellant, and the conditions of lighting and proximity eliminated the possibility of mistaken identity. 33.On motive, the record shows prior altercations involving demands for hand over of a phone and to be bought alcohol, pointing to aggression, malevolence, and animus by the appellant towards the deceased. The three altercations culminating in the fatal assault were consistent with escalating violence. In the circumstances, the appellant’s invitation to the Court to treat the alteration as 3 separate events cannot hold. 34.The two defences of alibi and intoxication were also raised by the appellant. On the first issue, the alibi, we note that it was taken into account by the superior court and disallowed for lack of proof. We are in agreement with the superior court that the alibi defence could not aid the appellant, as it is unsupported by any evidence. On the aspect of intoxication, the appellant contends that the witnesses were, in all probability, too intoxicated to be able to recognise him. Intoxication was not initially raised in the defence, and its introduction at appeal borders on being a convenient afterthought. In any event, if the appellant felt strongly that intoxication compromised the ability of the witnesses to recognise him, then that was an issue he could have taken up in cross-examination during trial. 35.The acquittal of the co-accused did not weaken the case against the appellant. The testimony of the eyewitnesses singled him out and specifically implicated him in the assault that caused the deceased’s death, in contrast to his co- accused. 36.The Court in Sawe vs. Republic (supra) cautioned that suspicion, however strong, cannot form the basis of a conviction. In this case, however, the prosecution evidence went beyond suspicion: it provided direct eyewitness recognition and identification evidence corroborated by medical findings. The nature of the attack with crude weapons directed at the chest area allowed the trial court to infer malice aforethought under section 206. 37.Accordingly, we hold that the prosecution proved the offence of murder against the appellant beyond a reasonable doubt. The actus reus was established by the fatal assault, and the finding of mens rea was in order considering the belligerent demands made to the deceased for his phone and to buy the appellant alcohol, coupled with the physical attack. The trial court cannot be faulted for inferring malice from the deliberate targeting of the deceased, plus the crude weapons deployed in the circumstances, all showing intent to cause death or grievous harm. The trial court’s finding was therefore consistent with the law. 38.On the issue of the effect of contradictions in the prosecution case, the law recognises that contradictions in evidence are inevitable. However, it is only material contradictions which go to the root of the prosecution case that can vitiate a conviction. Minor discrepancies are excusable and do not automatically weaken the case or fetch an acquittal. This Court has consistently applied this principle. In the Uganda Court of Appeal case, accepted and often cited by Kenyan courts, in Twehangane Alfred vs. Uganda, Cr. App. No. 139 of 2001, the Court held that:“Minor contradictions or inconsistencies which do not go to the root of the case every should be ignored. Only grave inconsistencies which point to deliberate untruthfulness will affect the credibility of a witness.” 39.This case has been cited with approval in our courts in, among others, Njuki vs. Republic [2002] 1 KLR 771, where the Court of Appeal stated:“It is not contradiction in a witness’s evidence that will cause the evidence to be rejected. The court must consider whether the contradiction is material and whether it goes to the root of the matter.” 40.The Court in Philip Nzaka Watu vs. Republic [2016] eKLR also reiterated that contradictions must be evaluated in light of the entire evidence, and only those that create doubt as to the guilt of the accused are to be considered fatal. 41.In this case we do not find the concerns raised by precedents to exist so as to warrant a finding of fatal contradictions. We do not perceive any witness as being untruthful. We do not see any material contradictions or discrepancies in evidence that go to the root of the case or cast doubt on the proof of the ingredients of murder. 42.Material contradiction, for the purpose of this case, would be an event where either witnesses testified in a manner creating doubt with respect to either the appellant not having been at the scene at all from the afternoon to the end of the day on 14th November, 2010, or that the appellant was wholly uninvolved in the altercation with the deceased at which he was asked to hand over his phone and to buy alcohol, or that the appellant was not there and not involved in the attack on the deceased using crude weapons in any of the three incidents, or that there is doubt if the deceased died from the said afternoon to the end of the day on 14th November, 2010, or that the deceased did not die of injuries inflicted by blunt objects. The issues of the various versions singled out by the appellant do not go to the core of the case, nor are they so fundamental as to impeach the conviction. 43.In the present case, the contradictions alleged by the appellant related to the physical confrontation between the appellant and the deceased, the timing of the murder, the distances in issue, the sightings of the appellant, and the sequence of altercations. 44.This Court agrees with the trial court that the details of the differences set out by the appellant do not affect the pillars of the case. They do not create doubt on the main narrative and ingredients of the charges. They, for instance, do not create doubt on whether or not the appellant was seen, recognised, and identified by the witnesses. They do not create doubt about the sequence and chain of events leading to the demise of the deceased. Nor do they cast doubt on the motive or on the acts resulting in the death of the deceased. 45.At most, the matters the appellant refers to as fatal, as contradictions, and as inconsistencies are all minor recollection varieties and versions adduced in good faith by the relevant witnesses with respect to the same narrative. They do not amount to explaining the same issue in a manner that is opposite, that is, reversing, and that is so different from each other as to cancel and nullify each other. In the circumstances, it is a stretch to designate the narratives as contradictions or material inconsistencies. They are insignificant differences in the versions of events. 46.It is also noted that the appellant has merely listed the various narrative versions of the matters he is aggrieved by but has not explained the sense, according to him, that these explanations by the various witnesses amount to fatal contradictions that go to the analysis, the root, the logic and the ratio of the conviction. 47.It is our finding, therefore, that the trial court was right to find that the mainline case and its ingredients were unaffected by the versions given. They are not so grave to the point of dislodging the core prosecution narrative. PW1 and PW2 consistently testified that the appellant was among the attackers, recognised under electric lighting, and that the deceased was left behind, fatally injured. The medical evidence from PW9 confirmed the cause of death as blunt chest trauma, consistent with the assault described. 48.Courts have emphasised in precedents that contradictions must be weighed against the totality of evidence. In Kiarie vs. Republic [1984] KLR 739, the Court held:….“The prosecution must prove the case beyond reasonable doubt, but minor discrepancies in the evidence do not necessarily weaken the prosecution case unless they point to deliberate falsehoods.” 49.Here, the contradictions were peripheral and did not affect the core of the evidence in the case, such as the recollection of the main events, the recognition evidence, and the medical findings. Accordingly, the contradictions in the prosecution’s case were not material, did not go to the root of the matter, and did not weaken the conviction. The trial court was entitled to rely on the consistent and corroborated evidence of PW1, PW2, PW6 and PW9. The conviction remained safe. The discrepancies were minor. 50.In any event and as stated above, it is a reality that trials are not always perfect, that witnesses, in good faith and honestly, can recall some event with minor differences as to details like time, distances and sequence of events. These insignificant versions do not automatically produce an acquittal. 51.As to the issue of whether new matters introduced at appeal can be considered, the law is clear that an appellate court is confined to the record of the trial court and the grounds of appeal properly raised. New matters that were not canvassed before the trial court cannot ordinarily be introduced for the first time on appeal unless they are pure points of law arising from the record. This principle is rooted in section 350 of the Criminal Procedure Code, which limits the scope of appeals to matters arising from the proceedings of the lower court. 52.This Court has consistently emphasised this position. In Okeno vs. Republic (supra), the Court stated:“An appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole, but the court must confine itself to the evidence which was before the trial court and not admit fresh matters unless exceptional circumstances exist.” 53.Similarly, in David Njuguna Wairimu vs. Republic [2010] eKLR, the Court held that new issues, such as intoxication oridentification, raised for the first time on appeal, cannot be entertained unless they are apparent on the face of the record and involve questions of law. In Njoroge vs. Republic [1987] KLR 19, the Court reiterated:“The role of the first appellate court is to reconsider the evidence, evaluate it itself and draw its own conclusions, but it must confine itself to the evidence on record.” 54.Therefore, the factual matters such as intoxication, alibi, or identification, if not raised or tested at trial, cannot be introduced for the first time at the appellate stage. Applying these principles to the present case, the appellant sought to raise intoxication and identification issues at the appellate stage. These were not canvassed before the trial court, nor were they part of the defence evidence or cross-examination of prosecution witnesses. They therefore amount to new factual matters which cannot properly be considered on appeal. 55.The appellate court is bound to disregard such new grounds, save to the extent that they may be inferred from the record itself. Accordingly, the Court finds that new matters such as intoxication and identification, raised for the first time on appeal, cannot be relied upon to challenge the conviction. The appeal has to be determined on the basis of the evidence and issues that were before the trial court. 56.Lastly, on the issue of whether the sentence of twenty (20) years’ imprisonment was fair, we note that sentencing in criminal matters is governed by the discretion of the trial court, exercised judicially and guided by statute and precedent. Under section 204 of the Penal Code, the punishment for murder is death. However, following the Supreme Court decision in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLR, the mandatory nature of the death penalty was found not to be binding, and courts may exercise discretion in imposing appropriate sentences, depending on the circumstances of each case. 57.The Court has consistently held that sentencing must reflect the gravity of the offence, the circumstances of its commission, and the interests of justice. In Fatuma Hassan Salo vs. Republic, Cr. App. No. 429 of 2006 [2006] eKLR, the Court stated:“Sentencing is a matter for the discretion of the trial court. The discretion must however be exercised judicially. The trial court must be guided by evidence and sound legal principle. It must take into account all relevant factors and exclude all extraneous or irrelevant factors.” 58.In Joseph Njuguna Mwaura & 2 Others vs. Republic [2013] eKLR, the court emphasised that sentences must be proportionate to the seriousness of the offence and the culpability of the offender. Similarly, in Benard Kimani Gacheru vs. Republic [2002] eKLR, the Court held:“It is now settled law that sentence is a matter that rests in the discretion of the trial court. An appellate court will not easily interfere with the sentence unless it is shown that the trial court acted on wrong principles, overlooked material factors, or the sentence is manifestly excessive or inadequate.” 59.Applying these principles to this case, we note that the trial court imposed a sentence of twenty (20) years’ imprisonment. Considering that the offence was murder, punishable by death under section 204, a custodial sentence of 20 years is possibly on the lower end of the permissible range. The preceding aggression by the appellant to be given the deceased’s phone and to be bought alcohol, the attack that was deliberate, involving crude weapons, and the resulting loss of life would probably warrant a more severe sentence of more than 20 years 60.The Court of Appeal has in several decisions upheld life imprisonment or sentences exceeding 30 years for similar offences where malice aforethought was established. Therefore, while the sentence imposed was lawful and within the discretion of the trial court, it may be viewed as lenient given the seriousness of the offence. The trial court considered the mitigation and opted for a determinate custodial term rather than the maximum penalty. In line with Muruatetu and subsequent jurisprudence, the sentence cannot be said to be illegal. Its leniency underscores the trial court’s exercise of discretion in favour of the appellant. 61.In the totality of the record, the memorandum of appeal, the rival submissions and the binding authorities, we are satisfied that the conviction was properly founded on cogent and credible evidence, the contradictions were immaterial, the new matters raised on appeal are incompetent, and the sentence imposed was lawful. Accordingly, the appeal is bereft of merit and is hereby dismissed in its entirety, the conviction is affirmed, and the sentence of twenty (20) years’ imprisonment stands, the same being neither illegal nor excessive but a judicious exercise of discretion consonant with the gravity of the offence. DATED AND DELIVERED AT NYERI THIS 24TH DAY OF JULY, 2026.MUMBI NGUGI………………… JUDGE OF APPEALL. ACHODE………………… JUDGE OF APPEALKATWA KIGEN K. J.………………… JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR