https://new.kenyalaw.org/akn/ke/judgment/keca/2026/967

Ochola v Republic (Criminal Appeal 82 of 2020) [2026] KECA 967 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 967 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal 82 of 2020 P Nyamweya, LA Achode & JM Mativo, JJA May 15, 2026 Between Stephen Odhiambo Ochola Appellant and Republic Respondent (An appeal from the Judgment of the High Court of Kenya at Kisii (R. N. Sitati J.) delivered on 23{{^rd}} October 2014 in Kisii High Court Criminal Case No. 67 of 2009 Criminal Case 67 of 2009 ) Judgment 1.Stephen Odhiambo Ochola, the appellant herein, has challenged his conviction for murder and the sentence of death imposed by the High Court of Kenya at Kisii (R.N.Sitati, J.) after a trial conducted in High Court Criminal Case No. 67 of 2009. The particulars of the offence were that on 8th May 2009 in Racha Sub Location in Ndhiwa District within Nyanza Province, the appellant murdered Florence Otulo Owaga. 2.During the trial, Asha Atieno Owaga (PW1) testified that the deceased was her mother and on 8th May 2009 at about 8.00 pm, while in the company of the deceased and Jane Anyango Owaga (PW3), her elder sister, the appellant came to their house armed with a panga (machete) and a spear, and asked them why they had treated his father with contempt. When the deceased attempted to inquire what the issue was, the appellant cut her right hand twice and cut PW1’sister (PW3) on her shoulder. He then fled, after raising the alarm people came and took PW1’s mother and sister to the hospital. At abou1.00 am her sister came back and informed them that their mother had died. PW1 stated that she had known the appellant “all her life” because his home was very close to their home. 3.This account of events was also narrated by PW3, who stated that she was admitted to hospital after the incident, and after her discharge she learnt that her mother had died and was already buried. Everline Atieno Jabuya (PW6), a daughter-in-law of the deceased, was also present and witnessed the incident, and narrated a similar account of events of the appellant inflicting injuries on the deceased and PW3. 4.The deceased’s husband, Henry Owaga Odhiambo (PW2) was on his way home from attending a meeting on 8th May 2008 at 8.00pm when he heard screams from the direction of his home. He rushed home to find the deceased and PW3 lying down and bleeding profusely. PW 1 was also present together with many people in his home. PW2 testified that the deceased died while receiving treatment, and he reported the matter to the Assistant chief, and they both in turn reported the matter to Ndhiwa police station. The appellant was subsequently arrested in October 2009, and PW2 stated that his family lived in the same place with the appellant, and there was a land dispute between himself and the appellant’s father. 5.Peter Oseb Ngare (PW 4), a relative of the deceased, took the deceased to hospital after receiving a call for assistance, while Margret Atieno Ogola (PW5), the deceased’s sister, went to the deceased’s home on 8th May 2009 at 8.00pm after she heard screams therefrom, whereupon she found the deceased and PW3 with injuries and accompanied them to hospital, where the deceased died. Peris Akinyi Alowa (PW7), who also heard the screams, went to the deceased’s home and witnessed the injuries on the deceased and PW3 before they were taken to hospital. 6.PC Titus Kinoti (PW8) received the report of the incident on 9th May 2009, while at Ndhiwa police station, and he was assigned to investigate the incident. He established that the deceased and appellant were neighbours and that at about 8.00pm the previous day, the deceased and her family were seated outside the house eating supper when the appellant appeared with a panga, spear and club, called the deceased aside and warned her that he would not let their family continue to intimidate his father. During the ensuing scuffle, the appellant cut the deceased’s left hand almost chopping it off, while PW3 was cut on her right hand near the shoulder as she went to rescue the deceased. The deceased was pronounced dead on arrival at St Cammillas hospital while the injured daughter was admitted to the same hospital. PW8 visited St. Cammillas and removed the deceased’s body to Homa bay District hospital. A post mortem examination was conducted on the body of the deceased on 11th May 2009, after identification by her husband and sister, and PW8 produced the post mortem report prepared by a Dr. Icole, which indicated that the deceased died from excessive haemorrhage. Further, that after the burial of the deceased, the appellant went underground until 11th October 2009, when he was arrested in Migori and escorted to Ndhiwa police station after which he was charged with the offence of murder. 7.The appellant gave unsworn testimony in his defence, and opted not to call any witnesses after it was ruled that he had a case to answer. His defence was that he went to work on 30th September 2009, and at about 9.00pm, he was arrested and taken to Migori Police station and detained for 13 days, and later taken to Ndhiwa Police station on 14th October 2009 where he was charged with the murder of “someone” on 8th May 2009. He denied taking part in the incident or inflicting the scar on PW3. He stated that he lived far from home and had no grudge with the deceased, did not know how the deceased died or who caused her death. 8.The trial Judge was however satisfied that the prosecution had proved its case beyond doubt, and while convicting the appellant of murder and sentencing him to death, stated that the appellant with the single blow of sharp panga, cut the deceased left hand and left it hanging only by a piece of flesh, and that the attack was beastly and inexcusable. The appellant, aggrieved by these findings of the trial Court has proffered this appeal in which he raises five (5) grounds of appeal in his Memorandum of Appeal dated 24th June 2025. The said grounds challenge the conviction for being based on contradictory witness testimonies, insufficient evidence and unreliable identification; and the sentence of death for being imposed capriciously without considering the circumstances of the offence and mitigations by the appellant. 9.We heard the appeal on the Court’s virtual platform on 2nd September 2025. The appellant, Stephen Odhiambo who was present, appearing virtually from Kamiti Maximum Prison, and learned counsel, Mr. Ogenga, was also present appearing for the appellant. The learned Senior Assistant Director of Public prosecutions, Mr. Solomon Njeru, appeared for the respondent. The two counsels relied on their respective written submissions dated 22nd January 2024 and 17th February 2024. As this is a first appeal, the duty of this Court as set out in the case of Okeno vs. Republic [1972] EA 32 is to submit the evidence to a fresh and exhaustive examination, make its own findings and draw its own conclusions. In doing so, we are mindful of the fact that the trial court has had the advantage of hearing and seeing the witnesses. 10.Mr Ogenga in this respect abandoned all the grounds of appeal on the conviction, and indicated that the appellant would only appeal against the sentence. It was his case that the trial Judge condemned the appellant to death without considering the extenuating circumstances surrounding the occurrence of the offence, and placed reliance on the case of Muruatetu & Another vs Republic; Katiba Institute & 4 others (Amicus Curiae) [2021] KESC 31 (KLR) (6 July 2021) (Directions) where the apex Court gave directions on sentencing and considerations of mitigation by the appellant.We were accordingly urged to reconsider the sentence of death meted on the appellant, and to substitute the same with a definite custodial sentence in accordance with the guidelines. 11.Mr. Njeru in his response submitted that section 379 (1) (a) & (b) of the Criminal Procedure Code provides for this Court’s jurisdiction to entertain an appeal against sentence from the High Court, and that pursuant to the decision in Muruatetu & Another vs Republic; Katiba Institute & 4 others (Amicus Curiae) (supra) this Court can review the sentence. It was his view that we should give regard to the aggravating circumstances of the case, considering that the deceased was attacked at her home, in the presence of her children, and there was no evidence that she provoked the appellant in anyway. 12.We have considered the arguments put forth by counsel. We have also perused the record, and observed that on 29th October 2014, the appellant stated as follows in mitigation after being convicted of the offence of murder:“I come from a poor family and from the time I was arrested I do not know what has been going on. I leave the court to decide my sentence”. 13.While imposing the death sentence, the trial judge observed as follows: “There is evidence on record that with one single blow with a sharp panga the accused cut off the deceased's left hand and left it hanging only by piece of flesh. The court finds that the attack was extremely beastly and inexcusable.Accordingly and pursuant to the law, I sentence the accused to suffer death as by law provided.Right of appeal to court of appeal within 14 days.” 14.Regarding the legality of the death sentence, we note that the sentence is still in the law as a legal sentence under section 204 of the Penal Code. The Supreme Court of Kenya however held in Francis Karioki Muruatetu & Another vs Republic & 5 Others (supra) as follows as regards the constitutionality of section 204 with respect to its mandatory nature:“Consequently, we find that section 204 of the penal code is inconsistent with the Constitution and invalid to the extent that it provides for the mandatory death sentence for murder. For avoidance of doubt, this decision does not outlaw the death penalty, which is still applicable as a discretionary maximum penalty.” 15.It is evident to us that the trial Judge proceeded on the assumption that the death sentence was a mandatory sentence and did not consider the appellant’s mitigation. It is also notable that there appeared to have been family disagreements between the family of the deceased and that of the appellant. However, there are also aggravating factors, particularly the unprovoked violence and pain that was inflicted on the deceased by the appellant. We therefore find that there are legal grounds to set aside the death sentence, and substitute it with an appropriate term of imprisonment. 16.The upshot of the foregoing is that the appellant’s conviction for murder still stands, and his appeal against the sentence of death partially succeeds to the extent that we set aside the death sentence, and substitute it with a sentence of imprisonment of thirty-five (35) years. The term of imprisonment shall run from the date of the appellant’s conviction by the trial Court, and take into account the period the appellant spent in custody before his conviction. 17.Orders accordingly. DATED AND DELIVERED AT KISUMU THIS 15TH DAY OF MAY, 2026P. NYAMWEYA…………………………………JUDGE OF APPEALL. ACHODE…………………………………JUDGE OF APPEALJ. MATIVO…………………………………JUDGE OF APPEALI certify that this is a true copy of the original DEPUTY REGISTRAR