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M'ithirua alias Kinjila v Republic (Criminal Appeal 151 of 2019) [2026] KECA 1037 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KECA 1037 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Criminal Appeal 151 of 2019 S ole Kantai, JW Lessit & A Ali-Aroni, JJA May 29, 2026 Between Thambura M'ithirua alias Kinjila Appellant and Republic Respondent (An appeal from the Judgment of the High Court of Kenya at Meru (Mabeya, J.) delivered on 27th September 2018 in HCCR. No. 24 of 2013) Judgment 1.Thambura M'ithirua alias Kinjila, the appellant herein, is before this Court by way of a first appeal, judgment against him having been delivered by the High Court (Mabeya, J.) on 27th September 2018. The appellant had been charged before the High Court in Meru with the offence of murder, contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence were that, on the night of 22nd February 2013 at Kandabene Market, Rwanda Location in Tigania West District, within Meru County, jointly with another not before the court, he murdered Samwel Kinoti. 2.The appellant pleaded not guilty, and the matter proceeded to trial, where the prosecution called a total of 5 witnesses. The appellant was found to have a case to answer and was placed on his defence. Upon considering the evidence, the learned Judge convicted the appellant of the offence of murder and sentenced him to 25 years' imprisonment. 3.The appellant was aggrieved by the High Court's decision and preferred this appeal on grounds which we summarise as follows: the learned Judge erred: by relying on evidence which was not sufficient to prove the offence of murder; failing to consider that the incident occurred at a bar where the parties were drinking; failing to take into account that the prosecution’s case was riddled with contradictions and inconsistency; failing to note that there was no grudge between the appellant and the deceased; failing to consider the mitigation factors raised by the appellant; and by passing a harsh sentence contrary to Article 25(c) of the Constitution. 4.This being a first appeal, the Court is obligated to examine, evaluate and analyse the evidence afresh and draw its own conclusions while bearing in mind that it did not see or hear the witnesses testify. This principle was stated in Republic vs. Aduol alias Bonny & 4 Others (Criminal Appeal 189 of 2020) [2026] KECA 155 (KLR), where the Court referred to the locus classicus case of Okeno vs. Republic [1972] EA 32, where the Eastern African Court of Appeal, the predecessor to this Court, stated the mandate of the Court in a first appeal as follows:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya Vrs. Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala Vrs. R. (1957) EA. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters Vrs Sunday Post [1958] E.A 424.” 5.We have as is required of us scrutinized the evidence by the prosecution witnesses, which we summarise as follows: PW1, Michael Ochieng, testified that on 21st February 2013 at approximately 7:30 pm, while at the Spider Club in Kandabene he encountered the appellant, and the appellant's wife, Joyce, as he sat in the company of the deceased and his brother, PW3. At some point, the deceased went to where the appellant and Joyce were seated and asked Joyce to pay a debt of Kshs. 4,000 she allegedly owed him. However, the appellant insisted that Joyce did not owe the deceased, and the appellant removed a knife, wanting to stab the deceased, prompting the waiter to intervene, chasing them out, and they moved to the veranda as the waiter closed the bar door behind them. Although it was dark, PW1 could see the two as they had been in the bar since 6 pm. Thereafter, he left and walked to his house, which is about 100 meters from the road. On reaching home, he saw the appellant chasing the deceased up to his house. The deceased wanted to enter PW1’s house, but while at the door, the appellant hit him with a stick, and he ran around the house twice, and a wire from an electric post outside the house trapped the deceased, who fell. The appellant continued to cane the deceased with a stick, as the deceased continued to insult him. When the appellant drew a knife and stabbed the deceased in the ribs, while the deceased was still lying down. 6.PW1 testified that he watched the incident, which occurred while standing at the door, at about 8.00 pm. There was moonlight, and it looked like daytime. After being stabbed, the deceased began to deteriorate quickly as he was screaming. The appellant left and went to his house nearby. PW3 arrived after a short while, and found his brother dead. Together with PW3, they went to the AP Post at Tigania East Police Station, where they reported the incident to Abdi and Zakayo. They could not get the chief on the phone. They called Mikinduri Police Station and two Land Rovers arrived around 10:00 pm and took the body. The police returned the next day, enquired about the incident and asked PW1 to go to Mikinduri Police Station to write a statement. He confirmed he knew both the deceased and the appellant as neighbors of 25 years, he had worked for the appellant, and herded cows with the deceased's father. 7.PW2 Ayub Manyara testified that on 23rd February 2013, at about 9.00 am, his wife, Lucy Nkirote, informed him that his nephew, the deceased, had died. The following day, 24th February 2013, he went to his brother’s house at Kandabene, where he learned from his older brother that the deceased had been murdered by the appellant, known as Kinjilo. On 25th February 2013, he identified the deceased body at the mortuary in Meru for the purposes of a postmortem. He observed that the deceased had an injury on the head, which was an open cut wound, a stab wound on the chest and the body was swollen from beatings. He had known the appellant for many years, as they were both born in the same area, and his wife and the appellant's wife are sisters. 8.Benard Mwiti, PW3, testified that on 22nd February 2013, he harvested maize with the deceased, who was his older brother, at Stephen Tuitiya's farm until 2:00 pm. After lunch, they went to Kandabene town and visited a bar at around 2:30 pm, where they found the appellant and others. He testified further that a quarrel broke out between the appellant and the deceased, during which they began to insult each other. After this exchange, the quarrel subsided, and the appellant left, leaving the deceased and PW3 behind. 9.Later, the witness and the deceased decided to go home, but on the way, stopped at the Spider Club II at around 6:30 pm. Thirty minutes later, the appellant arrived at the bar. He ordered a soda and sat near the deceased. Once again, they began to argue. At around 7:00 pm, the two went outside and started kicking and boxing each other until patrons in the bar intervened. He went outside to observe the situation. A security light from a bulb near the door provided some illumination. After a while, the two returned to the bar. The appellant continued to drink a soda while the deceased drank beer. They sat next to each other and appeared to have reconciled. The two then left the bar together and headed home. 10.PW3 followed them shortly. He was about 5 to 10 meters behind them. He could not tell what the two were talking about. He then saw the appellant stab the deceased on the chest at PW1's door near an electricity post. This happened at about 8:15 pm, but it was not very dark as there was moonlight. He ran to the AP Camp, which was about 500 meters from the scene and reported the incident. Three policemen went to the scene of the crime and found his brother was dead. The policemen then called Mikinduri Police Station and policemen came with a vehicle and took the body to Meru Hospital Mortuary after taking photographs. The following day, went to Mikinduri Police Station and wrote his statement. 11.PW4, Dr James Kisilu, produced in evidence the postmortem report of the deceased, on behalf of Dr Ndungu. He informed the court that the postmortem examination on the body of the deceased was performed on 28th February 2013, at Meru Level 5 Hospital Mortuary. The report gave the age of the deceased as a 30-year-old African male, in good nutritional status, and 5'6 "tall. Externally, there was a stab wound on the left 2nd intercostal space (between the 1st and the 2nd rib). There was a laceration on the frontal region of the head and on the back of the head. Internally, there was a massive haemothorax (blood in the chest) affecting the left lung. The doctor formed the opinion that the cause of death was massive haemothorax due to a penetrating chest injury. He produced the postmortem report as an exhibit. 12.PW5, PC Moses Omondi, previously of Tigania Police Station, testified that on 22nd February 2013 at around 11:00 pm, while asleep at the police line, the then OCS, Isiah Langat, reached him on phone and informed him of a murder in Kandabene and requested him to go to the scene of the crime. Along with his colleagues Sitonik, PC Masoti, and PC Sittenei, they arrived at the scene around midnight and discovered that the body of the deceased had already been removed from the scene. Officers from the Kenya Police Reserve and Muthaara Police Station were present at the scene. 13.PW5 and Wafula took over the investigation, with PW5 serving as the initial investigating officer. At the scene, he encountered PW1, who had been present during the incident. Upon questioning him, PW1 revealed that the appellant had been with the deceased earlier that evening, around dusk, as they were drinking local brew in Kandabene village. A disagreement arose between the two, after which the deceased left the local establishment and went with his brother, PW3, to a bar in the Kandabene market. He further established from PW3 that the appellant followed them to the bar, and when PW3 inquired from the two if they had resolved the issues that had caused their earlier disagreement at the local hangout, the deceased nodded in confirmation, and they continued drinking. PW3 also noted that when the appellant arrived, he was drinking soda and not beer. After some time, the appellant and the deceased left the bar and walked along the tarmac. PW3 followed them from behind. As they approached the appellant's home, he was joined by his wife, brother, and daughter. 14.He testified further that he learnt from PW1, who was taking supper in his house at around 6.30 - 7.00 pm, that he saw the deceased struggling to keep his balance, but eventually hit an electric post next to his house and fell down. The deceased was bleeding profusely from his chest and left thigh. The appellant, his wife, brother and daughter, followed the deceased where he had fallen and started beating him while on the ground. The appellant removed a sword from his waist and stabbed the deceased. After which they all ran away from the scene. 15.PW5 further learned that at that time, PW3, who had been following the deceased and appellant from behind, picked a stick from PW1's house and attempted to go after them, but was unable to reach them as he was drunk. He screamed for help, and officers from the Kenya Police Reserve arrived at the scene. 16.PW5 further testified that on 28th February 2013, he went to the mortuary for the postmortem examination following the identification of the body by the family. He also received the results of the postmortem, wherein the doctor stated that the deceased died of excessive bleeding caused by a sharp object inflicted on the left side of the chest. Later, the area chief was directed to arrest the appellant, which was done on 25th September 2013. Upon his arrest, the appellant was taken to Tigania Police Station, where he was charged with the offence. 17.After the close of the prosecution's case, the appellant was placed on his defence. He gave a sworn statement denying the offence. He testified that on 22nd February 2013, he was at Mikinduri for the funeral of his uncle’s wife and had stayed there with his children for the night, returning home the following morning, when some customers requested a ride to Kianjai market on his motorbike, and there they learned that the deceased had been murdered. On returning home, he heard PW1 and three others alleging that he had killed the deceased. 18.He confirmed that he knew PW1 from before, as he had hired him to dig a pit latrine for him, but he ran away with his equipment and sold it. When he eventually found PW1, he reported him to the Administration Police Camp, and PW1 was arrested and though he promised to return the equipment, he never did. He also noted that PW1 was upset with him for having reported him to the police. 19.He further testified that later he met the chief, who alleged that he had killed the deceased and asked him to accompany him to Gondoni Police Station. Upon arrival, they found that the name listed was Kinjila, not Thambura, but the chief insisted that his name be added. He knew the deceased, who had been arrested multiple times for stock theft; he also knew the deceased's father, who was his friend. 20.DW2, Florence Karangu testified that on 22nd February 2013, she attended her aunt’s funeral in Mikinduri, where she stayed overnight along with many others, including the appellant. The following day, at 11:00 am, she left with the appellant, who accompanied her to her house before returning to his own. Other people wanted the appellant to take them to Kianjai. After the appellant left her house, DW2 heard the allegation that he had killed the deceased during the funeral. 21.DW3, Henry Kinoti, testified that the appellant is his cousin, and on 22nd February 2013, at his mother’s funeral, they were together from around 8:00 am and stayed overnight at his place and left the next day at around 11:00 am. The following Monday, he received a call from his home informing him that the appellant was part of a group that had killed someone. Concerned, he visited the appellant at the Tigania Police Station, where the appellant explained how he had been arrested. 22.The trial court, having considered the evidence by both the prosecution and the defence, was persuaded that the appellant had committed the offence. It accordingly convicted him and sentenced him to 25 years' imprisonment. 23.The appeal before us was heard on the Court’s virtual platform. Learned counsel for the appellant filed submissions dated 2nd May 2025, where he urged that the prosecution provided contradictory evidence, yet the trial Judge failed to recognise the inconsistent and conflicting testimonies of the prosecution witnesses. Specifically, there were discrepancies regarding the date of the alleged crime, with some witnesses stating it occurred on 21st February 2013, while others claimed it occurred on 22nd February 2013. Additionally, there were contradictions regarding the events leading up to the death, as some witnesses stated that the incident took place in a bar, while others indicated that they were chased out of the bar after a quarrel erupted, and it occurred outside of the bar. 24.On the injuries sustained by the deceased, counsel urged that some witnesses claimed he was struck on the head with a stick, while others asserted that the appellant stabbed him after the deceased was entangled by an electric wire during the chase. Counsel further argued that the testimony of PW1 significantly differed from that of other witnesses, and it is well-established in law that such contradictions should be resolved in favour of the appellant. 25.Learned counsel emphasized on poor lighting and contends that the trial Judge made an error by not adequately examining the lighting conditions said to have enabled the identification of the appellant. He pointed out that the alleged murder took place outside a bar around 7:30 pm, and the prosecution's witnesses did not sufficiently explain how they identified the appellant as the person who killed the deceased, especially given that other individuals were also present at the scene. 26.Learned counsel contended further that there is no evidence to support the claim that the appellant stabbed the deceased; the available evidence suggests that he beat the deceased with a stick. Additionally, the alleged knife said to have inflicted fatal injuries was not presented as an exhibit in court. Counsel contended that there is reasonable doubt regarding the appellant's involvement in the murder, as he was not found at the scene of the crime, nor was the alleged weapon or stick recovered from him. Counsel referred to Richard Munene vs. Republic [2018] [2018] KECA 186 (KLR), where this Court stated that contradictions, discrepancies and inconsistencies in a witness's evidence undermine that witness's reliability and if such issues are substantial, they create doubt in the court's mind, which ultimately benefits the accused. 27.Learned counsel also relied on Baraza vs. Republic [1992] KECA 64 (KLR) and several other cases to support the contention that when identification or recognition is the sole evidence against a suspect, the trial court must examine such evidence carefully and be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it a basis for a conviction. Counsel argued that the mere mention of the presence of electric bulbs does not imply that the outside of the bar was sufficiently illuminated for the prosecution witnesses to positively identify the appellant as the perpetrator. 28.Regarding the issue of mens rea, counsel contended that the prosecution failed to establish this essential element of the offence of murder, as the prosecution witnesses failed to present any evidence demonstrating the appellant's intent to commit the offence. He pointed out that the prosecution witnesses alleged the appellant and the deceased had been in another bar before relocating to the bar where the quarrel over money, supposedly given to the deceased by an undisclosed politician, started. He added that the politician would have been a key witness in the matter. He also argued that if the appellant had intended to murder the deceased, he could have done so in the first bar, but he did not. 29.On the defence of alibi, counsel contended that the trial Judge failed to consider the appellant's defence of alibi and shifted the burden of proof to the appellant. He argued that it was the responsibility of the prosecution to provide evidence to rebut the alibi defence as required by law. In support of this contention, he referred to Victor Mwendwa Mulinge vs R [2014] KECA 710 (KLR), where this Court affirmed that the burden of proving the falsity of an alibi defence lies with the prosecution. 30.Counsel further submitted that the trial court in sentencing the appellant failed to take into account the time the appellant spent in custody while the trial was ongoing. In support, he relied on Ahamad Abolfathi Mohammed & Another vs Republic [2018] KECA 743 (KLR), where this Court held that the lower court's failure to meaningfully account for the time spent in custody, despite stating it had, amounted to ignoring that period. The Court clarified that "taking into account" means proportionately reducing the imposed sentence by the time already served. It further noted that the proviso to section 333(2) was introduced in 2007 to empower courts to include pre-sentence custody time in the final sentence, and that the first appellate court in that case misdirected itself by not directing the sentence to run from the date of arrest. 31.In opposing the appeal, learned counsel for the respondent filed submissions dated 6th May 2025. On whether the circumstances prevailing favoured positive identification of the perpetrator, counsel submitted that PW3 testified that the moonlight illuminated the area, enabling him to identify both the appellant and the deceased, as one was a brother and the other a neighbour, and they knew each other well. Counsel contended that this familiarity eliminated the possibility of any mistake regarding identity, indicating that the "chain" of identification remained intact. 32.Additionally, counsel pointed out that PW5 introduced the idea of other attackers (the appellant's relatives) during his examination- in-chief, a topic not mentioned by the eyewitnesses PW1 and PW3. Furthermore, during cross-examination, PW5 acknowledged discrepancies between his testimony and what PW1 had communicated to the police and the court. Counsel attributed this possible inconsistency to PW1's statement that he was merely answering questions and that he did not personally record his statement, nor was it read back to him. 33.On the defence of alibi, counsel referred to Victor M. Mulinge vs Republic [2014] KECA 710 (KLR), where the Court held that the particulars of an alibi defence should be disclosed in good time. He urged that in this case, the respondent's alibi was introduced at the defence hearing. 34.We have considered the record, the rival submissions, case law cited and the law and form the view that the issues that fall for determination in this appeal are:a.Whether the prosecution proved the offence of murder beyond any reasonable doubt.b.The place of the defence of alibi mounted by the appellant.c.Whether the sentence imposed was excessive and harsh. 35.On whether the prosecution proved the offence of murder beyond reasonable doubt, it is trite that the prosecution in a charge of murder has the singular task of proving three ingredients requisite in an offence of murder in order to secure a conviction, namely: that death occurred; the death was caused by the unlawful act of commission or omission by the accused; and the accused had malice aforethought as he committed the said act as set out by this Court in Anthony Ndegwa Ngari vs. Republic [2014] KECA 424 (KLR). 36.PW1 and PW3 saw first-hand the appellant beat the deceased, the deceased struggling for his dear life and the eventually blow to deceased life. The post-mortem report produced in evidence by PW4, gave details of injuries sustained by the deceased and the cause of death given as massive haemothorax due to a penetrating chest injury. The evidence of the two witnesses was consistent that the appellant stabbed the deceased in the chest, which is consistent with the findings of PW4. The trial court had this to say:“The evidence of the prosecution in my view remained firm and consistent. The accused is said to have run away with the weapon that dealt the deceased fatal injuries. The testimonies of PW1 and PW2 placed the accused at the scene. I am satisfied that the death of the deceased was as a result of the unlawful act on the part of the accused.” 37.On whether the appellant committed the offence, the respondent’s counsel is categorical that there were eyewitnesses, PW1 & PW3. The appellant’s counsel on the other hand, raised doubt on whether the light at the time of the alleged offence was conducive for proper identification since the alleged offence happened in the night. Courts have held that recognition of an assailant is more reliable than identification by a stranger. This Court affirmed this position in Reuben Taabu Anjononi, Benjamin Akisa Anjononi and Monya Anjononi vs. Republic (Criminal Appeal 480, 208 and 209 of 1978) [1980] KECA 23 (KLR). 38.PW1 and PW3 knew the appellant as a neighbour of many years. On the fateful day they were with him and the deceased in the bar from 6 pm and shortly before the attack and followed each other on their way home. They indeed witnessed the altercation between the two. They also testified of the presence of moonlight and security lighting near PW1’s house. Further, both witnesses saw the appellant stab the deceased as they were not far from the scene of the crime. 39.In Wamunga vs. Republic (Criminal Appeal 20 of 1989) [1989] KECA 47 (KLR) this Court stated:“Where the only evidence against a defendant was evidence of identification or recognition, a trial court was enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it could safely make it the basis of a conviction.” 40.In our view the testimony of PW1 & PW3 were clear on the circumstances that led to the death of the deceased. There were no inconsistencies or contradictions so serious as to make their evidence unreliable and we therefore agree with the trial court that the recognition of the appellant was free from the possibility of error. 41.On the defence of alibi, we are in agreement with the trial court that the appellant raised his alibi defence late; at the tail end of the trial claiming he was at a funeral on the date the offence occurred. This Court in Mugini & Another vs. Republic (Criminal Appeal 277 of 2018) [2025] KECA 480 (KLR), held:“From the record, we note that the defence was raised too late in the day, at the time the appellant was giving his sworn statement of defence. Thus, the prosecution was not accorded sufficient time to investigate it. That notwithstanding, it appears to us that the prosecution made a strong and watertight case against the appellant, that displaced the alibi. The evidence of the prosecution witnesses corroborated each other and formed a clear and logical sequence of events establishing the appellant’s presence at the scene of crime and not otherwise.” 42.On the third ingredient necessary to found a conviction of murder, proof of malice aforethought, the evidence on record was that the appellant, on the first encounter with the deceased, removed a knife intending to stab the deceased, but the barmaid intervened and chased them out. At their second encounter at the Spider Club that night, the appellant was taking a soda while the deceased continued imbibing a beer. It seemed like the two had reconciled, and they walked home together, only for the appellant to turn around, beat and stab the deceased with a knife. The altercation between the two occurred earlier in the day, and the appellant left the bar only to meet them at the Spider Club later. Whatever differences the two had, the appellant, having left the bar and later gone to the club, had a cooling-off period. It appears that the appellant joined the deceased at the club with a premeditated mind, even if in doubt over this presupposition, the appellant struck the deceased, as if the beating was not enough, he aimed at his chest and gave him the last blow to his life with a knife. The severe injuries the appellant inflicted on the deceased, including the penetrating wound on the deceased’s chest, are a clear indication that the appellant was out to maim or grievously harm the deceased, which he did, culminating in the death of the deceased, who was unarmed. The action of the appellant leaves no doubt that his actions were calculated, and we are satisfied that malice aforethought was established. 43.On whether the sentence of 25 years imposed was harsh and excessive, it is well settled that sentencing is a matter of discretion by a trial court and an appellate court will only interfere if the sentence meted out is illegal, excessive, or based on wrong principles. In Silas Mwiti Gikunda vs. Republic [2007] KECA 307 (KLR), this Court held that an appellate court will not interfere with a sentence unless the trial court acted on wrong principles or the sentence is manifestly excessive. 44.In the present case, the appellant fatally injured the deceased. In our view, nothing called for the cruel action of the appellant. The altercation of the two started off as a quarrel, the appellant thereafter caned the deceased, inflicting injuries on his body and ended up stabbing him on the chest. The circumstances leading to the death of the deceased do not militate towards a lenient sentence. The appellant was lucky to have gotten away with 25 years’ imprisonment, which sentence cannot be said to be excessive in the circumstances, as one convicted of the offence of murder is liable to be sentenced to death under section 204 of the Penal Code. We see no basis for interfering with the sentence. 45.Consideration of the time spent in custody appears not to have been addressed at trial, nor does it form a ground of appeal. Nonetheless, section 333(2) of the Criminal Procedure Code requires the court to take into account the period spent in custody before sentencing. This Court in Ahamad Abolfathi Mohammed & Another vs. Republic [2018] KECA 743 (KLR) held that:“Taking into account the period spent in custody means that the sentence imposed must be reduced proportionately by the period already served.” 46.In the interest of justice and fairness, we direct that the sentence of 25 years shall run from the date of arrest so as to comply with section 333(2) of the Criminal Procedure Act. 47.In the end, the appeal is dismissed in its entirety, save for the computation of time as directed in Paragraph 46 of this judgment. DATED AND DELIVERED AT NYERI THIS 29TH DAY OF MAY, 2026.S. ole KANTAI....................................JUDGE OF APPEALJ. LESIIT....................................JUDGE OF APPEAL ALI-ARONI....................................JUDGE OF APPEALI certify that this is a true copy of the original.Deputy Registrar.