https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1627

Orina v Republic (Criminal Appeal E139 of 2023) [2026] KECA 1627 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1627 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E139 of 2023 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 31, 2026 Between Vincent Momanyi Orina Appellant and Republic Respondent (eing an appeal from the Judgment of the High Court of Kenya at Nyamira (Maina J.) dated 20th December 2018 in HCCRC No. 52 of 2015) Judgment 1.Before us is an appeal from the judgment of the High Court of Kenya at Nyamira (Maina.J) (the trial court) dated 20th December 2018 in High Court Criminal Case No. 52 of 2015. Vincent Momanyi Orina, the appellant, was arraigned before the trial court charged with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence being that on the 7th June 2011 at Masaba North District within Nyamira County, he murdered Antony Otuge Onani, (the deceased). He denied the charge. 2.The prosecution called 5 witnesses in an attempt to prove its case against the appellant. Kepher Ongwae, (PW1) testified that on the evening of 7th June 2011, the deceased, who was employed at his kiosk and hotel, was removing items from the front of the shop, when he heard the deceased screaming followed by a thud. On checking what was happening, he saw the appellant running away. PW1 rushed to where the deceased was and found him lying on the ground. PW1 contacted the deceased’s son, Steve Moseti, (PW3) who came and they rushed the deceased to Hospital where he died the following day 8th June 2011 while undergoing treatment. According to PW1, shortly before the incident, he heard the appellant quarreling with the deceased but he never intervened. 3.PW2, Hellen Nyanchama Ongwae, PW1’s wife, was at the kiosk when she saw the appellant and the deceased quarreling while the appellant was holding a stone. PW2 persuaded the appellant to drop the stone and the appellant obliged. PW2 later heard someone being hit and when she turned to see what was happening, she saw the deceased on the ground, while the appellant was running away. PW2 rushed to assist the deceased but the deceased did not respond. PW2 and PW1 tried to perform first aid on the deceased as they called the deceased’s son (PW3) who came and assisted PW1 in taking the deceased to hospital. PW2 noticed a rungu at the scene but she did not know the owner which was handed over to the police; while Steve Moseti, (PW3), the deceased’s son was informed that his father had been injured in an attack; he rushed to the scene where he found the deceased lying down with a head injury and rushed him to hospital with the assistance of PW1, but the deceased died the following day in hospital. 4.PW4, Dr. Samuel Onchere, produced the post-mortem report on behalf of Dr. Matiko who conducted the post mortem on the deceased’s body. According to the report, the cause of death was cardiorespiratory arrest secondary to a head injury caused by blunt force trauma, while PW5 Police corporal Jonathan Kapkonga testified on behalf the investigating officer and produced the rungu which was recovered at the scene. 5.On being called to defend himself, the appellant elected to give unsworn testimony and denied killing the deceased. The appellant stated that on the material day, his mother sent him to the shop to buy some items; that an elderly man known as the village elder had been assaulted by another person and taken to hospital; that he was at home at the time PW2 alleged to have seen him quarrelling with the deceased and therefore, he was not at the scene when the offence was committed. 6.Upon considering the evidence from both sides, the trial Court was satisfied that the prosecution had proved the case beyond reasonable doubt, convicted the appellant and sentenced him to thirty (30) years imprisonment. 7.The appellant was aggrieved by both conviction and sentence, and lodged this appeal and raised several grounds faulting the trial court in: failing to properly analyze the evidence and as a result arrived at a wrong determination not backed by the evidence on record; failing to consider and uphold his alibi defence and failing to take into account the time he spent in remand custody while imposing the sentence. 8.When the appeal was called for plenary hearing on the Court’s virtual platform, Ms. Anyango, learned counsel, appeared for the appellant while Mr. Mwangi, learned principal prosecution counsel, was present for the respondent. Both counsel relied on their written submissions entirely. 9.Ms. Onyango submitted that the appellant’s conviction was based on contradictory and inconsistent evidence of PW1 and PW2; that when PW1testified on 21st June 2016, he stated that he heard screaming and saw the appellant running away, but conceded during cross-examination that he did not see the appellant attack the deceased and that PW2 also testified that she did not see who assaulted the deceased. However, when recalled for cross examination, PW1 stated that he saw the appellant attack the deceased; that PW3 changed the account of events and stated that PW1 informed him that the appellant was assaulting his father and when he went to the scene, he found the deceased on the ground with head injuries. 10.Counsel argued that the inconsistencies substantially diminished the probative value of the prosecution case by demonstrating that the witnesses were not truthful. Counsel asserted the trial court ought to have rejected the prosecution evidence and relied on the case of Twehangane Alfred v Uganda, Cr. Appeal No. 139 of 2001 [2003] UGCA 62, for the proposition that grave contradictions, unless satisfactorily explained, will usually, though not necessarily, result in a witness’s evidence being rejected, while minor contradictions may be disregarded unless they point to deliberate untruthfulness or affect the substance of the prosecution case. counsel again relied on the cases of Kazungu Katana Ngoa v Republic [2017] eKLR and Phillip Nzaka Watu v Republic [2016] eKLR for the same submissions. 11.Ms. Anyango further argued that the trial court did not adequately consider the appellant’s alibi defence; that the appellant’s testimony that he was at home on the material day and only learnt of the deceased’s death later, was not rebutted by the prosecution, and cited the decision in the case of Victor Mwendwa Mulinge v Republic [2014] eKLR, for the proposition that the burden of disproving a defence of alibi rests upon the prosecution and that, in assessing such a defence, the court may take into account the stage at which it was raised in determining whether it was an afterthought. 12.And on sentence, Ms. Anyango faulted the trial court for failing to comply with section 333(2) of the Criminal Procedure Code and take into account the period the appellant spent in remand custody when meting out the sentence, and cited the decision in the case of Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR for the proposition that in imposing sentence, the court should consider the period spent in custody. 13.Opposing the appeal, Mr. Mwangi submitted that the prosecution proved the case against the appellant; that the death and the cause thereof were not disputed and were proved through the evidence of PW1, PW2 and PW4 and that malice aforethought was also proved. According to counsel, PW1 testified that he saw the appellant and the deceased quarrelling, while PW2 testified that she saw the appellant carrying a stone before the incident and that both witnesses saw the appellant fleeing from the scene after the deceased was attacked, thereby proving the charge of murder beyond reasonable doubt. 14.On the appellant’s complaint that his alibi defence was not considered, Mr. Mwangi submitted that the defence raised was not a genuine alibi defence and that the trial court considered and properly rejected. And regarding sentence, counsel conceded that the trial court should have taken into account the period spent in custody during trial as required by section 333(2) of the Criminal Procedure Code. 15.On a first appeal, we are expected to submit the entire evidence to a fresh and exhaustive evaluation and reconsideration in order to draw our own independent conclusions on that evidence, while bearing in mind that we did not have the opportunity to see the witnesses testify and give due allowance for that. (Okeno v Republic [1972] EA 32.) 16.This appeal is on conviction only and, therefore, having considered the record; the submissions made on behalf of the parties and the applicable law, two issues fall for our determination, namely; whether the prosecution proved the case against the appellant beyond reasonable doubt, and whether the trial court properly considered the appellant’s defence of alibi. 17.On the first issue, the appellant was charged with murder.Section 203 of the Penal Code provides that any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder. In order to secure a conviction for murder, the prosecution must, therefore, prove three ingredients beyond reasonable doubt, namely; the death of a person and the cause thereof; that the death was as a result of an unlawful act and that it was actuated by malice aforethought. This position was reiterated by this Court in the case of Chiragu & Another v Republic [2021] KECA 342 (KLR) as follows:“The prosecution in an information of murder has the singular task of proving the following three ingredients in order to secure a conviction; that the death of the deceased occurred; that the death was caused by an unlawful act of commission or omission by the appellant and that the appellant had malice aforethought as he committed the said act.” 18.In this appeal, the death of the deceased was not in dispute.PW1, PW2 and PW3 interacted with the deceased immediately after he was assaulted and saw the injuries he sustained. PW1 and PW3 rushed the deceased to hospital where he died while undergoing treatment, while PW4 produced a postmortem report which confirmed that the cause of death was cardiorespiratory arrest secondary to a head injury following blunt force trauma, thereby proving the death and the cause thereof beyond reasonable doubt. 19.On whether the appellant was responsible for the death of the deceased, the appellant argued that he did not attack the deceased, while the respondent maintained that the appellant attacked the deceased inflicting fatal injuries on him. Upon evaluating the evidence, the trial court concluded as follows:“Having evaluated the evidence and considered the submissions by both sides carefully I am satisfied that the accused killed the deceased. I am satisfied that he was positively identified as the killer by Pw1 and Pw2. His altercation with the deceased started at about 6.30pm when Pw1 and Pw2 saw him and persuaded him to stop it. Pw1 testified that the deceased and the accused nearly fought but he intervened and even escorted the accused and he left. Pw2 testified that she pleaded with him to throw a stone which he had in his hand and he heeded her advice and left. However, as it was getting dark he returned and attacked the deceased as he was removing some wares that required to be kept in the shop overnight. The two witnesses (Pw1 and Pw2) were candid that they did not see the accused assaulting the deceased but that when they heard the deceased’s cry and a thud and rushed to his side they saw the accused person fleeing. The two witnesses were very consistent. Their testimonies did not change even when they were recalled to be cross examined by the accused’s Advocate pursuant to exercise of his right under Section 200 (3) of the Criminal Procedure Code. This court therefore believed them. They knew the accused person and I am satisfied that their identification of him which is fortified by the fact that they knew him, was accurate and could not have been mistaken.” 20.We have reevaluated and reconsidered the evidence ourselves.PW1 and PW2 were with the deceased at the Kiosk; PW1 heard the appellant and the deceased quarrel and intervened and the appellant left. PW2 also saw the appellant holding a stone while quarreling with the deceased but she intervened, persuading the appellant to drop the stone which the appellant did and left. Later, PW2 heard the appellant screaming and when she turned to check what was happening, she saw the deceased on the ground while the appellant was running away. 21.The trial court’s record does not show that there was any other person near the deceased and, therefore, there was no reason for PW1 and PW2, who were known to both the deceased and the appellant, to pick on the appellant as the person who attacked the deceased. We therefore agree with the trial court, that it was the appellant who attacked the deceased causing him grievous injuries that led to his death. 22.The appellant argued before us that the trial court did not consider his alibi defence. In his defence before the trial court, the appellant stated that he was at home and he could not have attacked the deceased. We have once again reconsidered the record of the trial court and, in particular, the appellant’s defence and the impugned judgment of the trial court. The trial court considered the appellant’s defence and concluded as follows:“As for the alibi, it is my finding that by the accused merely stating that he was not at the scene when the offence was committed that is not an alibi and whereas it is never the duty of the accused person to prove his alibi but rather for the prosecution to disprove it (See Macharia Vs. Republic [2001] KLR 155), in this case there was no alibi set up by the accused. If anything the accused confirmed that he was at the scene when he stated that his mother sent him to the shop to buy something. It is my finding that it is at that time that he committed this offence.” 23.The appellant’s argument that the trial court did not consider his defence is not correct. The trial court addressed the issue and reached its own conclusion on that defence. Indeed, from the record, the appellant stated for the fast time that he was not at the scene during his defence. Where an accused raises a defence of alibi, the prosecution bears the burden to disprove that defence (see Kiarie v Republic [1984] eKLR; Victor Mwendwa Mulinge v Republic [2014] eKLR.) And although it is desirable for an accused to raise the alibi defence at the earliest opportunity to give the prosecution a chance to investigate the veracity of that defence, the prosecution still bears the burden of dislodging that defence (see Adebiyi v S [2016] NGSC 92.) 23.The appellant stated that he had been sent to buy something and he learnt that an old man he knew had been attacked. That means the appellant was at the shop where the deceased was attacked. His evidence was therefore in agreement with that of PW1 and PW2, that he was at the shop and therefore that he attacked the deceased. We again agree with the trial court that the appellant’s defence was an afterthought and it was properly rejected. 24.Turning to malice aforethought, Section 206 (a) of the Penal Code defines malice aforethought to include, 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. The prosecution was therefore required to prove that the appellant’s action was actuated by malice aforethought. The trial court considered the issue and was satisfied that the appellant acted with malice aforethought. 25.Our revaluation of the record shows that the appellant had earlier quarreled with the deceased but was dissuaded by both PW1 and PW2. PW2 persuaded him to drop a stone he was holding which he did and walked away without incident.However, the appellant later came back and attacked the deceased on the head causing him serious injuries from which he died. The attack was not spontaneous or a spur of the moment because having walked away after being persuaded by both PW1 and PW2, the appellant had time to cool down. His coming back to attack the deceased; the part of the body he targeted and the weapon used was intended for maximum injury thus, demonstrated malice aforethought. We are satisfied that the prosecution proved malice aforethought as required by law. 23.On sentence, the appellant does not challenge the lawfulness or appropriateness of the sentence imposed by the trial court. His complaint is that the period he spent in custody while on trial was not considered during sentencing, a fact the respondent concedes. Section 333(2) of the Criminal Procedure Code provides as follows:“Subject to the provisions of section 38 of the Penal Code (cap. 63) every sentence shall be deemed to commence from, and include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this code.Provided that where the person sentenced under subsection (1) has prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.” 23.The proviso to section 333(2) was explained by this Court in the case of Ahamad Abolfathi Mohammed & Another v Republic that “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. 23.Ultimately, we find that this appeal lacks merit on both conviction and sentence and we hereby dismiss it. The sentence of thirty (30) years imprisonment shall, however, run from 9th June 2011, the date the appellant was first produced in court. DATED AND DELIVERED AT KISUMU THIS 31ST DAY OF JULY, 2026.ASIKE-MAKHANDIA………………JUDGE OF APPEALE.C. MWITA………………JUDGE OF APPEALB. ONGAYA………………JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR