https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7588

Republic v Vivo & 2 others (Criminal Case 29 of 2021) [2026] KEHC 7588 (KLR) (4 June 2026) (Judgment) Neutral citation: [2026] KEHC 7588 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Case 29 of 2021 RN Nyakundi, J June 4, 2026 Between Republic Prosecution and Alex Lugalia Vivo 1st Accused Fred Muhako Lugalia 2nd Accused Stanley Akwiyanga Lugalia 3rd Accused Judgment 1.The Accused persons herein were charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 (Laws of Kenya). The particulars of the Charge were that:“On the 18th day of May 2020 at Mukingi Village, Mukingi Sub-location in Izava South Location in Sabatia Sub-County within Vihiga County jointly murdered Henry Akwiyanga” 2.The Prosecution’s case was heard on diverse dates between 19th July 2022 and 8th April 2025 when it closed its case. On 17th July 2025, this Court found that the Prosecution had established a prima facie case against the Accused persons and thereby put them on their defence. The defence case was heard on 28th January 2026. 3.The 1st, 2nd and 3rd Accused persons Written Submissions were dated 30th April 2026. As at the time of writing this Judgment, the Prosecution had not put in their submissions. Analysis and Determination 4.Before this Court delves into the main ingredients which constitute the offence of murder contrary to Section 203 of the Penal Code it is presumed that each of the Accused Person is innocent until the contrary is proved by the State as provided for under Article 50(2) (a) of the Constitution. The standard and burden of proof is always vested with the State and the actual mandate of prosecuting crimes within our penal laws is vested with the Office of the Director of Public Prosecution under Article 157(6), (7), (8), (9), (10) & (11) of the Constitution. The applicable doctrine whose manifestation flows from Section 107(1), 108, 109 and 112 of the Evidence Act is that of proof of beyond reasonable doubt. This conceptual framework has found itself being interpreted and construed as to its meaning and application to the facts of each criminal case laid before a trial Court by way of evidence to prove existence or non-existence of facts in issue in relation to the commission of the crime. In this regard, the Court in Miller v Minister of Pensions [1947] 2 All E.R. 372 at page 373 to page 374 it was stated that:“The degree of beyond reasonable doubt is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with a sentence: 'of course it is possible but not in the least probable', the case is proved beyond reasonable doubt; but nothing short of that will suffice." 5.The burden of proof never shifts to the accused person and there is no obligation for an accused person to say anything at his or her trial with regard to the existence of facts in issue on the indictment. The fact that the accused has given/or placed in his or her defence or relies on an account given to the Investigating Officer does not alter the burden and standard of proof of beyond reasonable doubt. The accused person has no obligation to proof that his or her version is true, it is the duty and mandate of the State through the Director of Prosecution that the account given by the accused or his or her defence witnesses has not controverted the chain of events that could reasonably affect negatively the case for the Prosecution or the State for that matter. On this issue, the Courts in a series of decisions starting with Andrea Obonyo & Ors.V. R. [1962] E.A. 542, on pg 550 extensively discussed the doctrine of the standard and burden of proof of beyond reasonable doubt in criminal cases and the salient features on giving weight to the evidence admitted by the State and the perspective by the defence tailored to change the narrative of the case proven beyond reasonable doubt. Thus: "As to the standard of proof required in criminal cases DENNING,L.J. (as he then was), had this to say in Bater v. Bater [1950] 2 All E.R. 458 at 459:'It is true that by our law there is a higher standard of proof in criminal cases than in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases, the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. Many great judges have said that, in proportion as the crime is enormous, so ought the proof to be clear." That passage was approved in Hornal v. Neuberger Products Ltd. [1956] 3 All E.R. 970, and in Henry H. Ilanga v. M. Manyoka [1961] E.A. 705 (С.А.). In Hornal v. Neuberger Products Ltd., HODSON, L.J., cited with approval the following passage from Kenny's Outlines of Criminal Law (16th Edn.), at p. 416:'A larger minimum of proof is necessary to support an accusation of crime than will suffice when the charge is only of a civil nature....in criminal cases the burden rests upon the prosecution to prove that the accused is guilty 'beyond reasonable doubt'. When therefore the case for the prosecution is closed after sufficient evidence has been adduced to necessitate an answer from thedefence, the defence need do no more than show that there is reasonable doubt as to the guilt of the accused. See R. v. Stoddart (1909) 2 Cr. App. Rep. 217 at p. 242........ ... [I]n criminal cases the presumption of innocence is still stronger, and accordingly a still higher minimum of evidence is required; and the more heinous the crime the higher will be this minimum of necessary proof.Where, on the evidence adduced before Court, there exists only а remote possibility of the innocence of an Accused person, it would mean the Prosecution has proved its case beyond reasonable doubt; hence, the Prosecution would have conclusively discharged the burden that lay on it to prove the guilt of the Accused. In Obar s/0 Nyarongo v. Reginam (1955) 22 E.A.C.A. 422, at p. 424 the Court held that:"We think it apt here to cite a passage from the recent Privy Council case of Chan Kau v. The Queen (1952) W.L.R. 192. ... At p. 194 Lord Tucker said this:'Since the decision of the House of Lords in Woolmington v. Director of Public Prosecutions (1935) A.C. 462; and Mancini v. Director of Public Prosecutions 28 C.A.R. 65; it is clear that the rule with regard to the onus of proof in cases of murder and manslaughter is of general application and permits of no exceptions save only in the case of insanity, which is not strictly a defence.”In Okethi Okale v. R. [1965] E.A. 555, the trial judge had misdirected himself on the onus of proof; and made remark on the defence evidence, stating that:"I have given consideration to this unsworn evidence but I do not think it sufficient to displace the case built up by the prosecution or to produce a 'reasonable doubt'."On appeal, the Court responded at p. 559 as follows:"We think with respect that the learned judge's approach to the onus of proof was clearly wrong, and in Ndege Maragwa v. Republic (1965) E.A.C.A. Criminal Appeal No. 156 of 1964 (unreported), where the trial judge had used similar expressions this Court said:"... we find it impossible to avoid the conclusion that the learned judge has, in effect, provisionally accepted the prosecution case and then cast on the defence an onus of rebutting or casting doubt on that case. We think that is an essentially wrong approach: apart from certain limited exceptions, the burden of proof in criminal proceedings is throughout on the prosecution. Moreover, we think the learned judge fell into error in looking separately at the case for the prosecution and the case for the defence.In our view, it is the duty of the trial judge ... to look at the evidence as a whole. We think it is fundamentally wrong to evaluate the case for the prosecution in isolation and then consider whether or not the case for the defence rebuts or casts doubt on it. Indeed, we think that no single piece of evidence should be weighed except in relation to all the rest of the evidence. (These remarks do not, of course, apply to the consideration whether or not there is a case to answer, when the attitude of the Court is necessarily and essentially different.)" 6.The issues that were put before this Court for consideration were as follows:a.Whether or not Henry Akwiyanga (hereinafter referred to as the “deceased”) died?b.If so, was his death caused by an unlawful action(s) and/or omissions?c.If so, who caused the unlawful action(s) and/or omissions?d.Was there malice aforethought in the causation of the deceased’s death? 7.This Court therefore found it prudent to deal with the said issues under the following distinct and separate headings. Proof of Death of the Deceased 8.The 1st, 2nd and 3rd Accused persons submitted that it was not disputed that the death of the deceased person occurred. 9.As both the Prosecution and Defence witnesses alluded to the deceased’s death, it was not necessary to seek further proof. This Court found and held that the deceased’s death was proved without an iota of doubt. Proof of Cause of the Deceased’s Death 10.The Accused persons did not submit on this issue. 11.The cause of the deceased’s death was a pertinent issue. PW 2, DR COLLINS MASIKA tendered a Post Mortem Report dated 21st May 2020 in respect of the deceased herein as an exhibit in this matter. After conducting the post mortem examination, he formed an opinion that the cause of death was intracranial haemorrhage due to trauma. 12.It was therefore clear from his evidence that the deceased’s death was not as a result of natural causes. It was therefore crucial to establish how the deceased sustained the injuries that caused his death. Identification of Perpetrator(s) of Deceased’s Death 13.On identification of the accused person the Turnbull decision [1977], All E.R has been adopted in many jurisdictions including Kenya to provide the yardstick to qualify for quality identification of the suspects. It provides inter alia as follows:“That it is important to note that the trial Judge’s duty is to withdraw the case from the jury in an identification case is wider than the general duty of a trial judge in respect of a submission of no case to answer as enunciated in Galbraith (1981) 73 Cr. App.R. 124, [1981] 1 W.L.R. 1039. Moreover, Turnbull plainly contemplates that the position must bе assessed not only at the end of the prosecution case but also at the close of the accused's case at pp. 137, 138 and 228H-229A. Secondly, Turnbull requires the judge to warn the jury of the special need for caution before convicting the accused in reliance on visual identification and to explain that a mistaken witness may be a convincing one. That means that the jury ought to be told that honesty as such is no guarantee against a false impression being so indelibly imprinted on the mind as to convince an honest witness that it was wholly reliable. Reid v R (1990) 90 Cr. App. R. 121, [1990] 1 AC.363, 380F-381C. We do not, of course, say that these particular words must be used but the risk must be clearly conveyed to the jury. Thirdly, Turnbull requires the judge to direct the jury to examine the circumstances in which the identification was made. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence. Needless to say, the judge must deal with the specific weaknesses in a coherent manner so that the cumulative impact of those specific weaknesses is fairly placed on the jury." 14.The Accused persons denied killing the deceased. They submitted that he died from injuries suffered as a result of falling from a ladder. 15.The Accused persons submitted that there was no direct evidence linking them to the death of the deceased and that while the deceased was said to have been attacked by rungus and pangas, the Investigation Officer did not produce any of the said weapons but only brought pieces of woods which he alleged were used and which he confirmed that they were not found at the scene or in any of the Accused persons’ house. 16.They further asserted that the Investigation Officer also stated that at time of visiting the scene of the crime, he did not see the ladder and that the house had already been demolished. 17.It was their case that the Prosecution witnesses were not consistent in their testimonies as there were contradictions during cross- examination. They asserted that none of them was arrested at the scene of the crime and that no weapons alleged to have been used was found in any of their house. They added that the scene of the alleged crime was interfered with as the ladder that was said to have been used by the deceased was carried away from the scene by members of the public and the house demolished before the Investigating Officer visited the scene. 18.They were emphatic that they did not participate in causing the death of the deceased. They argued that the Prosecution had failed to prove that they were guilty beyond reasonable doubt. They urged this Court to acquit them of the murder charges herein. 19.Notably, PW 1, ROSA SAVAI VIVO, testified that on the material day, the Accused persons went to her home and found her with a guest, one Vero and who was taking tea. She identified the 1st, 2nd and 3rd Accused persons in the dock. She stated that it was the 3rd Accused person who was first attacked the deceased. She added that the 1st Accused person came with a panga, and was the father of the 2nd and 3rd Accused persons who had rungus. 20.She further testified that the deceased was his brother-in-law and that the 1st Accused cut him with a panga and he fell from the roof. She added that he was cut on the head and that he bled so much. She asserted that the 2nd and 3rd Accused persons hit the deceased’s head with rungus. She said that the deceased was rushed to Mbale but he later died. 21.On cross-examination, PW 1 stated that her husband had died ten (10) years ago and that she did not have a good relationship with the Accused persons’ family as there was a dispute over land which they demanded that she vacates. (The Court noted that she broke down during her testimony having been reminded of the incident and took time to answer the questions). 22.She was emphatic that she was present when the incident happened and that the deceased was cut before he fell down and that it was not true that he fell and died from the fall. She was emphatic that the deceased was on top of the house that was demolished and that the 1st Accused person climbed the house and cut the deceased while there. 23.PW 3, HELLEN OSIDE, testified that the deceased was her uncle and that he knew the Accused persons as the 1st Accused person was her step father while the 2nd and 3rd Accused persons were his nephews. She also said that PW1 was her mother. It was her testimony that on the material day, PW1 called the deceased to show him the side of the house which had fallen on one side. PW1 asked her whether the people who were to repair the house were still coming. 24.She stated that Duncan Chose and three (3) others entered the house. She said that they had found the 1st Accused person cleaning the compound near their house. The 1st Accused person then told the deceased to go out and do what had brought him there. He also told him that he was not his father and that his father died long ago. 25.She further testified that the deceased came out of the house and told Duncan to give him a ladder, when he got on the second stair, the 2nd Accused person told him to try and get to the roof and he would remove his teeth. She said that the deceased came down and raised his hands up. She stated that the 2nd Accused person had two (2) rungus. 26.She further stated that the 2nd Accused person hit the deceased with a rungu on his head and shoulder and that the 3rd Accused person came with a panga and cut the deceased on the head. She added that the 1st Accused person came out and cut the deceased on the chin and said that they should finish the deceased so that he could go away completely. She screamed and people came to the scene. The deceased was taken to hospital by Duncan Chose and Humphrey Gododi. She added that the police took photographs of the scene and identified the two (2) sticks that were recovered and were used to hit the deceased. 27.She said that the 3rd Accused person had two (2) pangas and he used to cut the deceased with one while the other was placed down and that 2nd Accused person had two (2) rungus and used them both to hit the deceased. On cross-examination, she confirmed that PW1 was in the house when the incident happened and came after the deceased had been injured by the 2nd and 3rd Accused persons. She confirmed that she was the only one at the scene when the incident happened. She admitted that the whole issue emanated from a land dispute as she shared the same father with the 1st Accused person and that their father had died without distributing land. She explained that the house that was demolished was their father’s and at the material time, it belonged to their mother but the 1st Accused person did not want the same demolished. 28.PW 4, CHARLES KISAMBO SADI, testified that he knew the deceased as a cousin to his father. He also knew the Accused persons as they were relatives. On the material day, he stated that he was at home at around 8.00am as he had come from his work as a security guard. He heard screams coming from PW1’s home. He rushed to the said home and when he inquired what had happened, PW1 told him that the 1st Accused person and his children had beaten the deceased. 29.It was his testimony that he saw the deceased lying near an old house and had been cut on the chin, head and on the left leg. He stated that he took the deceased to the hospital together with George Sadi and that he went back home to notify the deceased’s wife what had happened. He later heard that the deceased died. 30.On his cross-examination, he stated that he could not say that the deceased was injured by the ladder as he had been cut on the head, chin and leg. He notified the Court that PW1 and the Accused persons had differences arising out of land dispute and that the house was to be demolished according to the Maragoli customs and that PW1 had notified the larger family of the said demolition and everyone had agreed to the same including the three (3) Accused persons. He wondered why they injured the deceased. 31.PW 5, NO 113503 PC EVANS KORIR, testified on behalf of the Investigating Officer No. 46924 PC Richard Korir who had retired. His evidence corroborated that of PW1, PW2, PW3 and PW4. He explained that PW1 had called the deceased to help her demolish the house which was dilapidated. He said that according to the Maragoli custom, he was to remove one iron sheet before the house could be demolished as that happens when a woman has lost her husband. He added that PW1 was staying in the same compound with the 1st Accused person who was a step son and that the 1st Accused person was objecting the demolishing of the house. When the deceased climbed to remove the iron sheet, the Accused persons attacked him. He produced the recovered rungus as exhibit in Court. 32.The 1st Accused person testified as DW1. It was his testimony that on the material day at about 7.00a.m, he was outside his house collecting garbage from the compound. He said that there were three (3) houses in the said compound belonging to PW1 and that from his house to PW1’s was about fifteen (15) steps. He stated that he saw about thirty (30) people he did not know who were armed and who came to the compound. 33.It was his testimony that one of them took a ladder and put it on PW1’s house and that one of them an old man about aged seventy-six (76) years old got up the ladder. He asserted that the person who got up the ladder had a hammer and started removing the iron sheet. He said that old man fell down with the ladder and that he went inside his house to take tea while the armed people ran away. 34.He further stated that he took his children (the 1st and 2nd Accused persons) to the Police Station at Mbale to report the matter. He said that the 2nd Accused person was in the house and the 3rd Accused person was in the kitchen when he was cleaning the compound and that it was not true that they were at PW1’s house. He denied having a had a panga that material day. He also denied having a dispute with PW1 or interfering with the people who had come to work for her on the demolition. His evidence was corroborated by that of 2nd and 3rd Accused persons who testified as DW2 and DW3. It was their case that the deceased died from falling from the ladder. 35.After carefully analysing the evidence that was adduced by the Prosecution witnesses, it was evident that PW3 saw the 2nd Accused persons beating the deceased on the material date with rungus and the 3rd Accused person cutting him with a panga on the head while the 1st Accused person cut him on the chin with a panga. 36.The incident happened during daytime. Therefore, there was sufficient light as PW1 and PW3 were able to see them beating the deceased. 37.PW1, PW3 and PW4 were also able to see the deceased bleeding and his body full of injuries. PW1 and PW3 also saw the crude weapons the Accused persons were carrying at the material time. 38.PW1 and PW3 all placed the Accused persons at the scene of crime. There was sufficient lighting that was favourable for the positive identification of the 1st, 2nd and 3rd Accused person. 39.Additionally, PW4 testified that PW1told him that it was the Accused persons who had attacked the deceased. 40.This Court was persuaded to find and hold that the 1st, 2nd and 3rd Accused persons were positively identified by PW1 and PW3 as aforesaid. Identification was by way of recognition. They were all related and were neigbours living in the same compound therefore knew each other well. This could not have been a case of mistaken identity. 41.The Accused persons did not demonstrate that there was any motive for PW1 and PW3 to have colluded to frame them as the people who unlawfully caused the deceased’s death on that material date. Their assertions that the Prosecution’s evidence was inconsistent and/or it failed to call crucial witnesses thus fell on the wayside. 42.Consequently, it was this Court’s finding that the 1st, 2nd and 3rd Accused persons’ defence was mere denial and did not displace and/or dislodge the consistent and cogent evidence that was adduced by PW1, PW2, PW3, PW4 and PW5. 43.The witnesses to this case were very emphatic that the accused persons were previously known to them and there was no mistaken identity whatsoever of placing each of the accused persons at the scene of the crime. 44.The accused persons are charged jointly with the offence of murder. This Court therefore has to determine whether they executed the unlawful act with malice aforethought contrary to Section 203 of the Penal Code jointly and severally as provided for under Section 21 of the Penal Code. The Penal Code provides on the principles of criminal responsibility in the following terms:“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of that purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of that purpose, each of them is deemed to have committed the offence." 45.This is to be read in conjunction with Section 20 of the Penal Code which also provides as follows:“(1)When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it- (a) every person who actually does the act or makes the omission which constitutes the offence; (b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;(c)every person who aids or abets another person in committing the offence.(2)Any person who procures another to do or omit to do any act of such nature that if he or she had done the act or made the omission the act or omission would have constituted an offence on his or her part is guilty of an offence of the same kind and is liable to the same punishment as if he or she had done the act or made the omission; and he or she may be charged with doing the act or making the omission." 46.The Court in the case of Ismael Kisegerwa & Anor. v Uganda; C.A. Crim. Appeal No. 6 of 1978 remarked as follows:“In order to make the doctrine of common intention applicable, it must be shown that the accused had shared with the actual perpetrator of the crime a common intention to pursue a specific unlawful purpose, which led to the commission of the offence. If it can be shown that the accused persons shared with one another a common intention to pursue a specific unlawful purpose, and in the prosecution of that unlawful purpose an offence was committed, the doctrine of common intention would apply irrespective of whether the offence committed was murder or manslaughter.” 47.From the local legal trajectory, Kenyan Courts have not been left behind in underpinning the principles on common intention under Section 21 of the Penal Code. Thus, the following cases are on point:Republic v. Erick Kiboi Ombati & 3 others (Criminal Case 21 of 2015): The Court outlined that common intention can be inferred from the joint actions of the accused, such as participating in a mob attack, which proves beyond reasonable doubt that they were acting with malice aforethought. Republic v. Nelson Bosire Otuke & 2 others (HCCRC E021 of 2022): The High Court relied on Section 21 to convict multiple accused individuals for murder because they actively participated in the initial assault, rendering them liable under the doctrine. Mabel Kavati & Another v. Republic (Machakos High Court): The Court affirmed that while each case is decided on its own merits, evidence that accused persons acted in a joint criminal enterprise— even if one did not physically deal the fatal strike—satisfies the threshold of common intention. 48.The fundamental principle under common intention is that although the specific individuals may not have struck the fatal blow, all participated in the unlawful act and shared a common intention making them all equally culpable as principals of committing the offence in question. In this case there is sufficient evidence that the accused persons before Court had a common intention which has been proved by way of evidence to cause the death of the deceased. The gaps being alluded to by the defence Counsel is not capable of occasioning a rebuttal to the Prosecution case which has been proved beyond reasonable doubt. I therefore hold the view from the evidence that the three accused persons before this Court shared a common intention and acted together to commit the crime of murder against the deceased and the conduct of each of one of them is legally imputed to all the others bypassing the need to prove individual causation. 49.This is a case in which there was both direct and circumstantial evidence which formed the chain of events which are so complete pointing towards the accused persons’ guilt to the exclusion of all other reasonable hypothesis. The Court in R v Kipkering Arap Koskei and Another [1949] 16 EACA, observed as follows:“That in order to justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of guilt, and the burden of proving facts which justify the facts to the exclusion of any reasonable hypothesis of innocence is always on the prosecution and never shifts to the accused. This principle was late in the case of Simon Musoke v R. Criminal Appeal No. 188 of 1956 given more explanation when the court added that at the same time there must not be any co-existing facts in or circumstances which may weaken or destroy that inference of the guilt of the accused person”. 50.This is also the position taken by the Court in the case of Peter Mote Obero & Another V Republic [2011] eKLR Court of Appeal at Kisumu, in Criminal Appeal No. 177 of 2008, the learned Judges Omolo, Waki & Nyamu, JJA reiterated as follows;“It is the essence of circumstantial evidence that, in order to justify an inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co- existing circumstances which would weaken or destroy the inference – Teper V R [1952] AC 480. With those safeguards in place, circumstantial evidence is as good as any direct evidence which is tendered and accepted to prove a fact. In R V Tayklor, Weaver and Donovan [1928] 21 Cr. App. 20 CA, the court stated:“Circumstantial evidence is very often the best evidence of surrounding circumstances which by intensified exam is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say it is circumstantial.” 51.The chain of events in this homicide are traceable from the testimony of PW1, PW3, PW4 and PW5. There is no evidence on the part of the accused persons to break the chain to exonerate any one of them from the scene of the crime not as bystanders but as the principal perpetrators who through the unlawful acts executed the killing of the deceased. Malice Aforethought 52.This is the most important element which distinguishes murder contrary to Section 203 of the Penal Code with manslaughter as defined under Section 202 of the same Code. The definitional dimension of malice aforethought is clearly spelt out in Section 206 of the Penal Code which states as follows:“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—a.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;b.Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;c.An intent to commit a felony;d.An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony." 53.This Court has due regard to the case of Morris Aluoch v Republic [1997] eKLR which cited the case of Rex v Tubere s/o Ochen [1945] 12 EACA 63 where the East Africa Court of Appeal held that malice aforethought could be presumed where repeated blows were inflicted. 54.The seriousness of the injuries the deceased sustained was confirmed by PW2. Upon conducting the postmortem examination, he observed that the deceased had deep cut wounds on the scalp, one on the frontal region and another on the mandibular section measuring 2 x 3cm, bruises on the neck and the nervous system showed a separation of cervical 1 and cervical 2 due to trauma. 55.The extensive injuries all over the deceased’s body and the fact that he did not die immediately were evident that he suffered greatly before he died. 56.This Court was thus persuaded to find and hold that there were no variances of gaps in the Prosecution’s case as the Accused persons had asserted. The beatings the deceased suffered at their hands were not only unlawful but they could not be said to have been bereft of malice aforethought on their part. It was clear that they acted in concert with each other and hence had common intention to cause the deceased harm which led to his death. 57.Having analysed the evidence that was adduced by both the Prosecution together with the testimonies of the 1st, 2nd and the 3rd Accused persons and accompanied by their respective Written Submissions, this Court comes to the firm conclusion that the Prosecution established its case to the required standard and burden of proof of beyond reasonable doubt on all of the four elements tabulated elsewhere in this judgment. The import of it is that any defence by each of the accused person was found to be wanting and not capable of unpackaging the case for the Prosecution whose duty is to disapprove the right to innocence of each of the accused persons already indicted with the offence of murder contrary to Section 203 of the Penal Code. Disposition 58.For the foregoing reasons, the upshot of this Court’s decision is that the 1st, 2nd and 3rd Accused persons herein be and are hereby found guilty and subsequently jointly and severally with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. This therefore calls for both the Prosecution and the defence to file brief submissions on aggravating and mitigation factors. 59.Orders accordingly.Verdict On Sentence: 60.This is a case punishable with death as prescribed under Section 204 of the Penal Code sequenced from the finding of guilty and convictionas against the accused person for the offence of murder contrary to Section 203 of the same code. The foundation of principles on sentencing for the offence of murder are traceable to the dictum of the Supreme Court in the case of Francis Karioko Murwatetu v Republic 2017 eKLR 61.Some of the key guidelines although anchored in the letter of the law on its sentencing they are very much applicable in the primary sentencing of an offender who has been found guilty and convicted of the offence. These factors include but not limited to the following:Age of the offender;a.Being a first offender;b.Whether the offender pleaded guilty;c.Character and record of the offender;d.Commission of the offence in response to gender-based violence;e.The manner in which the offence was committed on the victim;f.The physical and psychological effect of the offence on the victim’s family;SUBPARA g.Remorsefulness of the offender;h.The possibility of reform and social re-adaptation of the offender;i.Any other factor that the Court considers relevant 62.Sentencing is about Judicial discretion which must be anchored in the legislative scheme of the Penal Code like in our case the maximum sentence for any Kenyan who kills another and has been found guilty is death by hanging. However, this sentence has been reserved for the rearrest of the crime of murder. Given its significance the National counsel for administration of justice developed a tool referenced as the Kenya Sentencing Policy Guidelines with the following elements which I term as objectives and principles.a.Retribution: to punish the offender for his/her criminal conduct in a just manner.b.Deterrence: to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.c.Rehabilitation: to enable the offender reform from his/her criminal disposition and become a law-abiding person.d.Restorative justice: to address the needs arising from the criminal conduct such as loss and damages.e.Community protection: to protect the community by incapacitating the offender.f.Denunciation: to communicate the community’s condemnation of the criminal conduct.g.Reconciliation: To mend the relationship between the offender, the victim and the community.h.Reintegration: To facilitate the re-entry of the offender into the society. 63.In the Criminal Justice Administration, sentencing of an offender takes centre stage and justice being done to a criminal case is measured by the nature of the sentence imposed by a trial court. That is the very reason that in our policy guidelines there are a variety of factors besides the above objectives which form the legal frame in the exercise of Judicia discretion for a court to come up with an appropriate verdict. Such principles include the following:a.Proportionality: The sentence meted out must be proportionate to the offending behaviour meaning it must not be more or less than is merited in view of the gravity of the offence. Proportionality of the sentence to the offending behaviour is weighted in view of the actual, foreseeable, and intended impact of the offence as well as the responsibility of the offender.3 1.2.2 Equality/Uniformity/Parity/Consistency/Impartiality: The same sentences should be imposed for same offences committed by offenders in similar circumstances.4 1.2.3 Accountability andb.Transparency: The reasoning behind the determination of sentence should be clearly set out and in accordance with the law and the sentencing principles laid out in these guidelines.5 1.2.4c.Inclusiveness: Both the offender and the victim should participate in and inform the sentencing process.6 1.2.5 Totality of the Sentence: The sentence passed for offenders convicted for multiple counts must be just and proportionate, taking into account the offending behaviour as a whole. More guidance is given on this in paragraphs 2.3.21 to 2.3.30.d.Totality of the Sentence: The sentence passed for offenders convicted for multiple counts must be just and proportionate, taking into account the offending behaviour as a whole. More guidance is given on this in paragraphs 2.3.21 to 2.3.30.e.Respect for Human Rights and Fundamental Freedoms: The sentences imposed must promote, and not undermine, human rights and fundamental freedoms. Whilst upholding the dignity of both the offender (and where relevant, the victim), the sentencing regime should contribute to the broader enjoyment of human rights and fundamental freedoms in Kenya. Sentencing impacts on crime control and has a direct correlation to fostering an environment in which human rights and fundamental freedoms are enjoyed. 64.In pursuit of this discourse leaned counsel for the defence M/s Malanda pursuant to Article 10 of the constitution and the dictum in Muruatetu case filed written submissions urging this court to exercise lenience bearing in mind the following facts. For the 1st Accused there was the contention for learned counsel that the fact of age be taken into account, being an a first offender and as a man who is the main provide for his wife and 9 children. That incarceration of the 1st Accused will be a big blow to the family both physically and psychologically. In so far as the 2nd Accused is concerned, learned counsel further submitted that this is an adult of 43 years old who is remorseful and regrets the offence with no criminal record which ought to be considered in imposing a lenient sentence. 65.The learned counsel for the Accused persons also mitigated on behalf of the 3rd Accused who is a young man of 25 years old and before this incident was a student at Sigalagala polytechnic. He seeks forgiveness to the family and the court for mercy and compassion so that he can reprogram his life afresh even after this serious offence. 66.There is no dispute that the death of the deceased was uncalled for and in absence of any justification or excuse on the part of the offenders it remains that the unlawful acts of assault inflicting fatal injuries is a violation of Article 26 of the constitution on the right to life. I did not find any evidence on the part of the offenders that this is a case in which the circumstances fall under self defence of self or property under Section 17 of the Penal Code or Section 207 as read with 208 of the Penal Code on provocation. There are no compelling and exceptional circumstances to warrant a lenient sentence or for that matter non- custodial as submitted by the defense counsel. 67.From creation onward God has shown a profound regard for human life forming people in his own image as seen on Genesis 1 v 27. The value of every life is further emphasised in Generis 9 v 6 where taking a human life is strongly condemned. In Jeremiah 1 v 5 God affirms that He knows and values each person even before they are born. This biblical perspective in the same line like our own constitution in Article 26 underscores the inherent worth and dignity of every human being. That to me in my views may be the reason why God proclaimed in Genesis 1 v 6 whoever shades the blood of man by man his blood will be shade from his own image God has made mankind. If indeed the offenders in this case could have been inspired by this philosophical foundation of creation, the deceased could be alive numbering his days a right at 70 or more as the Lord Wills. 68.For those reasons, I do hereby exercise judicial discretion bearing in mind the chain of events which occasioned the death of the deceased, the mitigation, the guidelines in Muruatetu case and the sentencing policy guidelines. This is a fit case for a custodial sentence. As a consequence of which I sentence each of the offenders to a term imprisonment of 25 years which sentence shall run from 28.5.2020. Each of the offenders has a right of appeal within 14 days to the Kenya Court of Appeal. It is so ordered. DATED & DELVERED AT VIHIGA THIS 4TH DAY OF JUNE 2026........................................R. NYAKUNDI JUDGE