https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1426

Adul v Republic (Criminal Appeal E298 of 2022) [2026] KECA 1426 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1426 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E298 of 2022 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 10, 2026 Between Wilson Ajwang Adul Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Siaya (Makau, J.) dated 6th October, 2017 in HCCRC No. 08 of 2016 Criminal Case 8 of 2016 ) Judgment 1.The appellant, Wilson Ajwang Adul, was charged 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 20th June, 2015 at Nyandiwa Sub-Location, Siaya Sub-County within Siaya County, the appellant murdered one Shalot Awuor Awino. The appellant denied the charge. 2.The prosecution called eight witnesses. Elijah Okoth Omidha (PW1) testified that he had known the deceased since 2013. He recalled receiving a call at 8.00 am on 20th June, 2015 from the appellant, who said he knew where Shalot Awuor Awino was living and wanted to confirm whether she lived in Usenge, Siaya County. PW1 also wanted to know where Shalot was living. He and the appellant met at Awelo that afternoon, left for Usenge on a motorbike, and arrived at 4.30 pm. PW1 recounted that the appellant left him standing and after five minutes, the appellant came pulling a lady from a house 20 meters away. PW1 and the lady recognised each other, and he confirmed that the lady (Shalot) stayed in Usenge. Shalot smiled when she saw PW1. PW1 further recalled that the appellant suddenly bent down, removed a kitchen knife from the sock on his right foot while still holding Shalot’s hand, and stabbed her in the left side of her chest near her hand. Shalot screamed, fell down and started convulsing as the appellant took off with the knife in hand. PW1 screamed for help, and two people came and carried Shalot to the road. It was PW1’s evidence that a crowd came to the scene and started assaulting him, and he was later rescued by police who took him to the hospital. 3.PW1 asserted that the appellant was not properly known to him and that he had briefly met him twice before the incident subject of this case. The first time he met the appellant was at the police station when the appellant was arrested for shoplifting, and the second time at Shalot’s place in Awelo. At the time, Shalot was staying with her sister. PW1 further stated that he was related to Shalot by blood and he was 56 years old. He denied that Shalot was his girlfriend, though she had given him keys to her house. 4.Felix Owuor (PW2), a boda boda rider who lived in Usenge Obambo, recalled that on the said date at around 4.00 pm, he met a certain old man with a young man. The two men asked him to take them to Obambo Usenge, for which he charged them Kshs. 100/=. He dropped off the two men at the shopping centre, they paid him and he went away. When he returned after 25 minutes, he heard people saying that the old man, who was with the young man, had killed the young girl. It was the testimony of PW2 that he saw blood on the ground, and neither of the two men he had carried were at the scene. He then went to Siaya Police Station to report that he had carried the two people and that he did not know where they had gone. He identified both PW1 and the appellant in court. 5.Wilson Mandela Oporo (PW3) was also a boda boda rider operator in Usenge Obambo. He testified that on the said date at around 3.00 pm, he left Usenge for Siaya and left Shalot at his rental house in Usenge Obambo Centre. Shalot was his girlfriend and had stayed in his house for a month. He had known Shalot since 2010. PW3 recalled that it was about 5.00 pm and he was on his way back when he saw people shouting. When he arrived at the centre, he saw PW1 being beaten by members of the public and Shalot lying on the ground on the other side of the road. He moved closer to where Shalot lay and observed that she was bleeding from the right-hand side near her shoulder, under the armpit and on the left side near the abdomen. He rushed to his house for his mobile phone but did not find it, and thus returned to where PW1 was being assaulted. He saw his phone in PW1’s left shirt pocket and upon pulling it out, discovered that PW1 also had Shalot’s ATM and identity card. He took the items and did not speak to PW1 because PW1 could not speak. The friend (PW4) he intended to call came to the scene and agreed to take Shalot to the hospital. He thus left with PW4 to pick up the vehicle and returned to get Shalot from where she lay. At that time, PW3 recalled that he saw a man coming towards them with his neck bleeding and holding a blood-stained knife. They left for Siaya County Referral Hospital where Shalot passed on at the emergency room. PW3 called Shalot’s brother to inform him of the incident and proceeded to his grandmother’s home in Rarieda because he feared going back to his house. He later went to the mortuary and Shalot’s sister and uncle asked him to accompany them to the police station where he was arrested. At the cell, PW3 saw the young man he had seen at the scene with a knife and bleeding. PW3 was informed that he had been arrested because of his unwillingness to release Shalot’s Identity and ATM cards. He was released the following day. 6.Further, PW3 testified that he had previously seen PW1 when PW3 dropped off Shalot at the Siaya, Kisumu stage to meet up with PW1. Shalot and PW1 were going to Kisumu because PW1 was pursuing payment of money for Shalot from the Ministry of Agriculture where Shalot’s late father had worked. PW3 identified the appellant as the young man he had seen at the scene with a cut on the neck and armed with a knife. He had not met the appellant before the day of the incident. 7.Allois Pius Okello (PW4) recalled that on the said date at around 5. 00 pm, he was at his shop within Usenge Trading Centre when a commotion took place about 200 metres from the shop. He closed his shop and ran towards where people were running, and found others wailing. He saw a young girl lying on the ground with blood oozing from her chest, head and right hand. Near her was an elderly man lying on the ground and being beaten by members of the public. PW4 corroborated PW3’s testimony in all material aspects. He thought PW3 was the injured girl’s husband. He also recounted that as they were putting the girl in the car, he saw a young man brandishing a knife and trying to enter the car from the left side, but he prevented him by closing the window. He had never seen the young man before. He later identified the appellant as the young man. PW4, Onyango Ahenda and PW3 then drove to the hospital and the emergency group took the girl in. PW4 was later informed that the girl had passed on. It was his evidence that 21 months after the incident, he saw the elderly man at his shop with CPL Mutinda (PW8). 8.Dreda Anyango Ongudo (PW5) testified that she received a telephone call from Dickson Okatch Alogo on 20th June, 2015 at 10:00 pm through her co-wife’s mobile phone, asking whether she had heard anything from Shalot. She responded that she had not heard anything. She got concerned and nervous and upon returning from the toilet, she found Cynthia on her phone crying and saying that the appellant had killed Shalot. Cynthia also mentioned and read to her three messages that the appellant had sent to PW5’s phone. PW5 called Dickson to let him know of the said messages. She recalled that she went to the mortuary on 22nd June, 2015 and identified the body of the deceased. She then went to inform the police, and when she went to the deceased’s bank to check whether there was any money in her bank accounts, she found none. She called PW3 who confirmed he had Shalot’s documents, which she received after reporting him to the police. PW5’s account was that Shalot was her granddaughter, whom she stayed with until she became an adult. She had talked to Shalot on the material day at 3.00 pm and Shalot had promised to visit her. Shalot had never mentioned to her that she stayed with anyone. It was the testimony of PW5 that the appellant was known to her as he used to visit her home, and she also knew his mother and their home. 9.Eunice Akoth Juma (PW6) recalled that on the material day at 5: 00 pm, she was heading to Usenge Centre when she saw many people in the middle of the road. On arrival, she found a girl lying on the ground with blood oozing from the right side of her breast and on her right thigh. The girl was unknown to her. She also saw an elderly man lying on the ground being talked to and saying that the stabbed girl was his aunt’s daughter. PW6 was told that a young man had stabbed the girl and run away. While at the scene, a young man came from the nearby bush with a knife in his hand and people moved aside. She testified that the young man started cutting himself at the neck with the knife and running after PW4’s vehicle that carried the injured girl to hospital. The young man left after the public started throwing stones at him. The police then came and picked up the elderly man. She identified PW1 in court as the elderly man and the appellant as the young man. 10.Dr. Abdi Fatah Abdullahi (PW7) presented a report on the postmortem for Shalot that was conducted on 22nd June, 2015 at 5.45 pm. He reported, among others, stab wounds on the left arm, chest, and right breast, and the left lung had collapsed. The doctor’s opinion was that Shalot’s cause of death was tension pneumothorax secondary to a stab wound to the chest. 11.Cpl Francis Mutinda (PW8) was the investigating officer. He testified that on the material day at around 16.30 hours, they received a report of mob justice at Usenge Trading Centre. They arrived at the scene and found PW1 seated beside the public road with injuries on his head and bruises on his face. He noted that PW1 was disabled as one of his legs had been amputated, and he could not give them any information. He further testified that members of the public recounted to them how a young man had stabbed a young lady and entered the nearby bushes after the attack. They rushed PW1 to hospital for treatment, where they were also informed that the young lady had passed on. PW8 saw the body of the deceased and observed deep stab wounds on the left upper arm, left ribs and right hip. He recalled that on the night of 20th June, 2015, while on duty at Siaya Police Station, a young man came to the report office with an injury on the front side of his neck and was unable to talk. He called a driver on standby and rushed the young man to hospital. On 21st June, 2015, PW8 received information from the nurses that the young man had been asking about the lady’s whereabouts. Consequently, they proceeded to the hospital to handcuff the young man and then went to the crime scene to record witness statements. The young man identified himself as Wilson Ajwang Adul (appellant) and was also identified by PW1. When the appellant was discharged on 24th June, 2015, he was arrested and taken to the police station and then charged with murder. PW8 further testified that he revisited the scene to get more witnesses after taking over the case file on 16th February, 2016. He explained that the delay in recording statements was due to his not being the initial investigating officer. PW8 had yet to receive any report from the Cyber Crime Office in Nairobi on the threatening messages sent to PW5’s phone, which he had suspected came from the appellant. 12.When the appellant was put to his defence, he opted to remain silent and did not call any witnesses. The High Court delivered judgment in the matter on 6th October, 2017, finding that the prosecution had proved the case against the appellant beyond any reasonable doubt. The appellant was found guilty of the information and was accordingly convicted and sentenced to death on the same 6th October, 2017. 13.The appellant is aggrieved and dissatisfied with that decision and has filed this appeal against the sentence only. He prays that the appeal be allowed and the death sentence set aside and substituted with a more lenient determinate sentence that promotes reintegration at a productive age to be of use to the community at large, and that the time spent in remand be considered in the sentence meted out in line with Section 333(2) of the Criminal Procedure Code. The memorandum of appeal dated 16th December 2025 sets out the grounds of appeal as follows:1.That the sentence is harsh, severe and manifestly excessive.2.That the appellant is remorseful and deeply regrets the offence.3.That the appellant is reformed and rehabilitated for the period already served.4.That the appellant was a young man with lack of skills in anger management, self-control and alternative dispute resolution mechanisms at the time.5.That the appellant was a first offender, still of a productive age and of good conduct for the time he has been in prison.6.That the appellant urges this court to consider reformation, rehabilitation and restorative justice and he be accorded a second chance. 14.The appellant’s advocate also filed a memorandum of appeal dated 17th April, 2026, setting out 10 grounds on both conviction and sentence. However, when this appeal came up for hearing before us on 12th May, 2026, learned counsel Ms. Ogendi appeared for the appellant and stated that the appeal was on the sentence only. Ms. Mumu, learned Assistant Director of Public Prosecutions, appeared for the respondent and the parties canvassed the appeal by relying on their respective written submissions. 15.The appellant’s submissions are dated 5th January, 2026. There is also a second set of undated submissions by the appellant’s advocate, Ms. Ogendi. It was counsel’s submission that the imposed sentence did not reflect the principles of proportionality. That the High Court failed to consider that the appellant was himself injured during the incident, appearing at the police station with a neck wound and unable to talk. Further, that the sentence meted out on the appellant was declared unconstitutional in by the Supreme Court in Francis Karioko Muruatetu & another v Republic [2017] eKLR. 16.In the submissions filed by the appellant in person, it was urged that the appellant is entitled to a sentence review pursuant to the guidelines set out in Francis Karioko Muruatetu & another v Republic [2017] eKLR, where the Court allowed prisoners to be considered for review of their sentences in cases of appeal. The appellant also cited paragraph 8 on the resolution containing the safeguards guaranteeing protection of the rights of those facing the death penalty, adopted by the United Nations Economic and Social Council on 25th May, 1984, thus, ‘any sentence to death shall have the right to seek pardon or commutation of sentence, pardon or commutation of sentence may be granted in all cases of capital punishment’. He further urged this Court to be persuaded by the reasoning of the European Court of Human Rights in Vinter & others vs. The United Kingdom (Applications No. 66069/09, 130/10 and 3896/10), that an indeterminate life sentence (death sentence) without any prospect of release or possibility of review is degrading and inhumane punishment. That it is a principle in international law that prisoners, including those serving life or death sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved. The appellant argued that since his sentence was commuted to a life sentence, he has no prospect of release, which is degrading, inhuman, harsh, cruel and a manifestly excessive sentence. He also relied on the decisions in R vs. Bieber [2009] I WLR 223; S vs. Scott- Crossley 2008 (1) SACR 223 (SCA); and Spence vs. The Queen & Hughes vs. The Queen (unreported, 2nd April 2001). 17.Relying on the undated respondent’s submissions, learned counsel Ms. Mumu submitted that the High Court considered the appellant’s mitigation and imposed the sentence lawfully. That Section 204 of the Penal Code provides that any person convicted of murder shall be sentenced to death. That sentencing in an exercise of the appellate court will ordinarily not interfere with the trial court’s exercise of discretion unless the trial court acted whimsically. Counsel relied on the holding in Arthur Muya Muriuki v Republic [2015] eKLR, that;“the appellate court would be entitled to interfere with the sentence imposed by the trial court if it is demonstrated that the sentence imposed is not legal or is so harsh and excessive as to amount to miscarriage of justice, and or that the court acted upon wrong principle or if the court exercised its discretion capriciously.” 18.We have considered the record of appeal, the submissions by both parties and the law. The issue for determination are whether the High Court meted out a harsh and excessive sentence and whether the High Court adhered to the sentencing guidelines. The principles guiding this Court’s interference with the sentence were set out in Gacheru v Republic (Criminal Appeal 188 of 2000) [2002] KECA 94 (KLR) (20 February 2002) (Judgment)as follows;“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.” 19.As submitted for the appellant, in Francis Karioko Muruatetu & another v Republic [2017] eKLR, the Supreme Court ruled that the mandatory nature of death penalty for murder is unconstitutional. The Court established that judges must have the discretion to weigh both mitigating and aggravating circumstances during sentencing. We therefore find that consistent with that holding the imposition of the sentence for the appellant to suffer death was harsh and unconstitutional. We reckon that the learned trial Judge imposed the sentence of death on 6th October, 2017 whereas judgment in Francis Karioko Muruatetu & another v Republic [2017] eKLR was delivered by the Supreme Court on 14th December, 2017 declaring the mandatory death sentence for murder under Section 204 of the Penal Code to be unconstitutional. Thus in imposing the sentence, the learned trial Judge had stated the then prevailing law that in spite of the favourable mitigation for the appellant, the court’s hands were thus tied in view of the then prescribed mandatory sentence to death for an offence of murder. 20.We have considered the favourable mitigation that was made for the appellant. He was a first offender, he was 25 years old with a whole life ahead of him, he was married with a family of one child who was a month old, and he was due to sit his examination in November, 2017. We have also considered the violent manner the appellant committed the murder and the observation by the trial court that the offences of violence against women especially murder were on the rise in Siaya County. That the appellant was due to sit for his examination and wished to take care of his family pointed to remorsefulness and his potential to positively reform. 21.We have therefore considered the balancing of the aggravating and mitigating factors including the offender's age, record, remorsefulness, and potential for reform. We have also considered the commission of the offence due to gender-based violence, the manner the appellant committed the murder, and, the impact on the victim's family which lost a loved one. We set aside the imposed sentence of death and substitute therefor a sentence of imprisonment for twenty (20) years. 22.The appellant was arraigned in court on 3rd July, 2015 and subsequently released effective 17th September, 2015 on bond of one million shillings with surety of similar amount. Section 333(2) of the Criminal Procedure Code mandates that a convicted person's sentence must commence on the day it is pronounced. Crucially, it includes a proviso that requires trial courts to reduce the sentence by factoring in the time an accused person has already spent in custody awaiting or during the trial. We therefore direct that the imprisonment will run effective the date of sentence on 6th October, 2017 and computed excluding the period the appellant was in remand from 3rd July, 2015 to17th September, 2015. 23.The upshot is that we confirm the appellant’s conviction for the offence of murder contrary to section 203 as read with section 204 of the Penal Code but set aside his sentence to suffer death and substitute therefor the sentence of imprisonment for twenty (20) years computed excluding the remand period from 3rd July, 2015 to17th September, 2015. DATED AND DELIVERED AT KISUMU THIS 10TH 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