https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1621

Bushuru v Republic (Criminal Appeal E102 of 2021) [2026] KECA 1621 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1621 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E102 of 2021 MS Asike-Makhandia, HA Omondi & LK Kimaru, JJA July 31, 2026 Between Zablon Misiko Bushuru Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Kakamega (Sitati, J) delivered by (W.M. Musyoka, J) dated 6th October, 2021 in HCCRA No. 62 of 2013 Criminal Case 62 of 2013 ) Judgment 1.Zabon Misiko Bushuru, the appellant herein 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 the 7th December, 2013 at Shikogwe village, Malekha sub-location, Shirungu Location in Kakamega North district within Kakamega County, murdered Caroline Bushuru (the deceased). He entered a plea of not guilty and the prosecution called seven (7) witnesses to prove its case. At the close of the prosecution case, the court found that a prima facie case had been established and placed the appellant on his defence where he gave sworn testimony and called no witness. 2.Upon completion of the trial, in a judgment delivered on 9th October, 2019 the trial court found that the case against the appellant had been proved to the required standard and convicted the appellant. He was sentenced to serve a term of thirty-five (35) years imprisonment. The appellant being aggrieved by the decision of the High Court has appealed to this Court. 3.Due to the requirement that as the first appellate court, we must subject the evidence tendered in the trial court to thorough and exhaustive review, so as to reach our own independent conclusions in terms of Okeno v Republic [1973] EA 32, it behooves us therefore to set out the evidence tendered before the trial court albeit in brief. At the trial, the prosecution called 7 (seven) witnesses; namely Robai Namalwa Musungu PW1(Robai), Caleb Mulika Caleb (Caleb) PW2, Simon Mbayachi Swani PW3(Simon), Jackson Bushuru Mulika PW4 (Jackson), Elizabeth Oyiengo PW5 (Elizabeth), Gladys Bushuru PW6 (Gladys) and No. 235443 CI Richard Kirario PW7 (CI Kirario). The evidence presented by Robai, was that on the 6th December 2013 the deceased had in the company of her relatives attended a memorial service at Caleb's home. At about 12.30am, she returned home 12:30am, escorted by PW1 who saw her get inside her grandmother Gladys’ house, light the lamp; bid her goodnight; and the deceased then closed the door; and according to Simion (PW3), at about 2.00am, he confirmed that the deceased was asleep at her grandmother’s house (PW6), with other children. The next morning, the deceased could not be traced; and later on, her body was found lying in a nearby sugar plantation. 4.Caleb, was the host of the memorial ceremony which had been held customarily, to appease his late father’s spirit. He confirmed seeing the appellant at his home at about 8.00pm; and that among those who were slaughtering the animal was one Rashid Mukolove and others who he could not recall. However, on cross examination, PW2 confirmed that the appellant was one of those who assisted in slaughtering the animal that was to be consumed during the ceremony. At about 3.00 am, the appellant approached him and requested for a torch so as to go to the toilet. The appellant left and did not return, and a visit to his home by PW2 yielded nought, but at 6.00am, the appellant returned to PW2’s home saying he had gone to the toilet; and he then returned the torch. 5.Simon the area assistant chief, upon learning about the death of the deceased, informed Kabras police station, and also urged the deceased’s grandparents to make a report, but realized that they were reluctant, and appeared to have a hidden agenda. He stated:“… I carried out some investigations afterwards and established that deceased had complained to her grandparents that she had been defiled by the suspect that night for many days before the fateful day. I found out that the deceased's mother was sister to the suspect. After carrying out the investigations, and in the evening it (sic) was informed the suspect was wearing blood-stained clothes- a shirt and jacket. I was given information by an informer…”Simon noted that the appellant wore a blood-stained brown shirt; and was persuaded that the latter had a hand in the death, he managed to persuade the appellant to accompany him to the police station, to assist the police with investigations 6.According to Jackson, the appellant’s biological father, (who described the deceased as his granddaughter), was among guests who were taking part in the memorial celebrations at Caleb's home. He saw the deceased leave together with Robai at about midnight, but he remained behind until about 2.00am, when he went home to his 1st wife’s house where the deceased was sleeping. Infact, it was the deceased who opened the door, and he noted that the deceased was sleeping with four young children. Jackson left at about 2.30am, going back to the celebrations, at 3.00am, he decided to go back to his first wife’s house where the deceased had slept. Upon entering the house, he realised that the deceased was missing, but the other children were there, still asleep. The door was open because it was 6.00am and he decided to go back to Caleb's where the celebrations were. Gladys, was still there; the deceased was nowhere to be seen; and upon inquiring from Gladys, she expressed suspicion that Caroline had gone to another neighbour’s funeral. Later he learnt that the deceased’s body had been recovered in a sugarcane plantation and that her clothes were full of blood. He stated as follows:“After Caroline died, ....... Pieces of clothing were found in the accused's house. This is the shirt - PMFI 2 and the jacket PMFI 3. It is this jacket which was found, in Zablon’s house, but on his arrest, Zablon was wearing this shirt PMFI 3. The police took these clothing to help them with their investigations. Gladys was not in her house on 6th December 2013. She came in the morning from the celebrations.”Jackson eventually attended the post mortem examination; and eventually the body was released to him for burial. 7.He recalled that some time back, the appellant had made sexual advances to the deceased; and this was not well received as the appellant was the deceased’s maternal uncle. He also testified on cross examination that there was blood in the Gladys' sitting room and that it appeared like someone had tried to clean it up. Gladys confirmed that she noticed blood in her sitting room and immediately the accused started cleaning it up and then disappeared. Later on, a blood-stained shirt and jacket were recovered from the accused's house. The same were produced in evidence as P exhibit 2 and 3. 8.Elizabeth, a government analyst examined a shirt, trouser, jacket which were indicated to belong to the appellant, an under pant belonging to the deceased, as well as blood samples of the appellant and the deceased. Her analysis found that the DNA profile generated from the shirt, jacket and trousers, all belonging to appellant- matched profile of blood sample indicated as blood of Caroline Bushuru with a probability of l in 5.2574 X 1019, meaning that there was no other person on the world with that blood. The DNA profile generated from the pant belonging to the deceased matched DNA profile generated from blood sample and the stains on the clothes were human blood. 9.The deceased’s grandmother, Gladys confirmed that she was present at the celebration held in Caleb’s home; and she saw the deceased leave at 1.00am. She remained at the ceremony venue until morning. She eventually got home, she did not find the deceased whose age she gave as 15 years, and she assumed she had gone to fetch water as usual. Later she learnt that the deceased was found lying dead inside a sugar cane plantation. She rushed to the scene and noted that the deceased was bleeding from the nose and mouth; and she also had scratch marks all over her body 10.According to her, after the body was taken to Webuye mortuary, the following morning, blood was seen inside her house under the seat. She had not noticed the blood, and it was her brother-in-law who noticed the blood. At that time the appellant was at home, but after the blood was detected, the appellant started walking away and eventually disappeared. It was her evidence that the appellant’s clothes had blood stains, and that spiked her suspicion that the appellant had something to do with Caroline’s death. The witness confirmed that:“On that same day, Zablon was arrested and taken to Malava Police Station. When people went in his house, they found a blood-stained jacket. I handed the jacket to the sub chief; this is the jacket. (Witness identifies PMFI 3) I can also see this shirt PMFI 2 and this trouser PMFI 5 Zablon had these clothes on that day. I suspected Zablon was involved because of the blood stains on his clothes. The reason is that Zablon wanted to befriend Caroline. Who is my daughter’s daughter while Zablon is my own son. Zablon always knocked on the door seeking out Caroline. He did so twice. He talked about that issue on the day of the celebration: I had told Zablon to stop pursuing his sister’s daughter. Before she died, Caroline had told me about the accused person’s sexual pursuits. I found the door open twice after Caroline told me about it. 11.Richard visited the scene where the body was found and observed that the body had bruises around the neck and on the breasts. Her blouse was torn; there was also fresh blood oozing from her private parts. The body was photographed. The area chief and village elders were tasked to try and gather any information concerning the death. On 8th December 2013 at around noon, the chief called him to say that the appellant was trying to run away; and that his clothes were full of fresh blood. The chief arrested the appellant and also removed the shirt the suspect was wearing. He also handed over a jacket together with the appellant. He eventually submitted the recovered clothes and blood samples from the appellant and the deceased, to the Government Chemist for analysis and report. 12.Upon cross examination, the witness stated:“Yes, I visited the house where deceased used to sleep. Yes, there was blood in there. It appeared there had been a struggle in that house. I stated or perceived that deceased had been killed in the house and then dumped in the sugarcane plantation. The reason why I suspected accused, was because a witness told me accused asked for a torch from him and disappeared for two hours. There was also information the accused had a pending defilement case at the chief involving deceased.…” 13.After numerous adjournments without securing the attendance of the doctor who performed the post mortem on the body of the deceased, due to the then ongoing doctor’s strike, the prosecution closed its case. The appellant was placed on his defence wherein he elected to give sworn testimony. Confirmed that the deceased was his niece (a child of his sister), who lived with his mother and that he also lived in the same compound, but in a different house. 14.It was his evidence that until he got back to his home, he was not aware of the death nor did he take part in any planning and executing the death. He confirmed being at the home where the memorial festivities were taking place; he also confirmed that the deceased, Caleb, Jackson and Elizabeth were also among those at the same homestead. He remained at the memorial ceremony until 11.00am the next day, when he left for his parents’ home; on arrival, he found a crowd which included his family members gathered, discussing about the deceased’s demise. He joined the rest of the crowd that went to the scene to view the body, and he was among those who assisted in carrying the body to the waiting police vehicle and it is his defence that it is during this process that blood splattered from the body onto the clothes he was wearing. 15.He denied claims that he had an unwholesome amorous interest in the deceased, maintaining that he did not go into the house where the deceased was sleeping, nor did he have any intimate sexual encounter with her on the fateful night. He denied running away from home and insisted that his parents implicated him in the incident because he stopped them from leasing a parcel of land, an action which did not endear him to them. 16.In rejecting the defence; and finding that the evidence sufficiently proved the charge, the learned trial judge, drawing from a long line of past decisions, among them the case of Republic v Mohammed Wanyoike & Another [2017 eKLR, the court stated that a post mortem report is not a condition pre-requisite to the offence of murder and it was therefore not necessary in the instant case to produce the post-mortem report, as the death of the deceased could be proved by other evidence taking into account the circumstances of the case which gave an inference that the injuries sustained by the deceased led to her death. The learned judge observed that in the instant case, the body of the deceased was found to have several bruises around the neck the chest and limbs; she was bleeding from her nose and private parts, and the photographs confirmed the injuries. The judge stated as follows:“I am satisfied that in this case, the prosecution’s failure to produce the post mortem report was not fatal to the prosecution's case. The deceased had been seen alive and well at around 2.30am on the fateful morning. By 6.00am she was nowhere to be seen. Her body was that. morning found lying in a nearby sugarcane plantation with the injuries seen from the photographs there can be no doubt that those injuries are the ones that led to the death.” 17.As to whether there was proof that the appellant committed the unlawful act which caused the death of the deceased, the learned judge acknowledged that the prosecution's contention rested on a blood stained shirt, as well as a blood stained long trouser were recovered from the body of the appellant, while a blood stained jacket was recovered from his home visa vis the appellant’s explanation that the blood stains were a mix of animal and human blood splattered while he assisted in slaughtering an animal at the memorial ceremony; and that yes, his clothes were stained with the deceased’s blood as he assisted in carrying her body from the scene of crime. 18.In rejecting the appellant’s explanation, the learned judge pointed out that the circumstantial evidence of the deceased's blood on the accused person's clothing was cogent and credible and created a strong nexus between the appellant and the death of the deceased. That the evidence irresistibly pointed to his guilt, and was incompatible with his innocence; and the deceased's blood on his clothes was incapable of explanation upon any other reasonable hypothesis than that of his guilt. The learned judge found the theory put forward by the accused as to how the deceased's blood got onto his clothes unbelievable because he did not raise that theory during cross-examination of witnesses; and in any case, Caleb, who was one of the persons who slaughtered the animal, did not mention the appellant as being part of the slaughter team. That this coupled with the conduct of the appellant that night of disappearing between 3.00am to 6.00pm was sufficient circumstantial evidence that the appellant was away during that critical interval when the deceased met her death. 19.On the aspect of malice aforethought, the learned judge took into account the claims regarding the appellant’s sexual advances to the deceased, which had been spurned, and even complained about by the deceased; that the issue had been raised that very night and carried forward for further discussions; and to this the learned judge stated:“Although motive is not necessarily required to prove murder, in this case, the accused person had the motive to silence the deceased once and for all, since the family was now aware of his sexual exploits with the deceased. That is why after assaulting the deceased, he made sure her body was hidden away from the eyes of the family. I am satisfied that the accused person knew that what he did to the deceased would probably cause the deceased’s death, or cause her grievous harm, though of course in the circumstances in which he was, he did not care whether or not the deceased died or whether grievous harm was caused to her.” 20.This is the outcome that the appellant contested in the Memorandum of Appeal dated 10th November, 2025, in which the appellant raised three (3) grounds, summarized as follows, that the Learned Judge erred in law and fact: in failing to analyse the evidence hence coming to wrong conclusion; failing to produce the post mortem report, which was fatal to prosecution case; and failing to consider time spent in remand custody during trial. 21.At the hearing, the appellant was represented by learned counsel Ms Ida Anyango, whereas learned prosecution counsel Ms Busienei appeared for the respondent. The appellant’s counsel submitted that there are three elements of murder which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are:a.the death of the deceased and the cause of that death;b.that the accused committed the unlawful act which caused the death of the deceased andc.that the Accused had the malice aforethought in doing so. 22.Learned counsel contended that the prosecution was unable to prove all these elements, pointing on the first element, there must be evidence proving the death of the deceased and the cause thereof; that the evidence required to prove the death and its cause is usually the autopsy reports given by pathologists; that in the instant case, the prosecution was unable to prove this. Additionally, the prosecution was unable to prove any malice on the part of the appellant. All the three limbs required to sustain a conviction on a murder charge were therefore not proved. 23.In the written submissions, the appellant submitted that the learned trial court erred by failing to properly analyse the evidence hence arriving at a wrong determination which was not backed by evidence on record. Pointing out that the trial court convicted the appellant based on circumstantial evidence, giving weight to a purported unexplained disappearance of the appellant from 3.00am to 6.00am coupled with the witnesses' testimony that the appellant had allegedly defiled the deceased on previous occasions inferred guilt; and that the deceased's blood was equally found on the appellant's clothing, sealed the appellant's fate. It is argued on behalf of the appellant that the evidence presented did not meet the threshold warranting conviction based on circumstantial evidence. 24.Drawing from the case of Sawe vs. Republic [2003] KLR 364, where the Court of Appeal amplified the law on circumstantial, the appellant submits that there was a break in the chain in various levels, starting from the fact that none of the prosecution witnesses saw the appellant with the deceased on the night of the celebrations; that Jackson was the last person to see the deceased at about 2.00am; and that, the appellant was able to explain how the deceased's blood ended up on his clothing which was when he tried to move the deceased's body as per instruction by Jackson and Gladys the time of death of the deceased was not known. She was last seen at about 2.00am by Jackson who had gone to Gladys’s house. Jackson in his testimony said he went back to the celebrations at around 2.30am. None of the witnesses testified that they saw the appellant with the deceased on the night in question. What is undisputed however is that Jackson was the last person to see the deceased 25.As to the cause of death, it is pointed out that the post mortem report was not produced in court, and there was no eye witness to the death of the deceased; and the prosecution case evolved around circumstantial evidence. The appellant urges us to take note that the body of the deceased had several bruises around the neck, the chest and limbs, supported by photographic evidence; and there was also evidence that the deceased was bleeding from her nose and private parts; but that failure to produce a post-mortem rendered a fatal blow to the prosecution The post mortem was thus mandatory as the same could have easily explained the real cause of the deceased's death and the time of death. As it is, it is not known whether the deceased suffered one 26.In this regard, the appellant relies on the case of Ndungu v Republic (1985) eKLR where this Court, differently constituted, observed as follows:as regards the significance of a post mortem report:“...in some cases, death can be established without medical evidence. Of course, there are cases, for example where the deceased person was stabbed through the heart or where the head is crashed, where the cause of death would be so obvious that the absence of a post- mortem report would not be fatal. But even in such cases, medical evidence of the effect of such obvious and grave injuries should be adduced." 27.Also referring to the case of R vs Cheya (1973) E.A 500, the Court had this to say on the same issue:“The judgment in Cheya gives no report of what injuries were sustained although there is reference to vicious assault, bleeding in several places and that the deceased was assaulted by a group of people. That decision does not illustrate the proper application of the principle that in some cases death can be established without medical evidence. Of course, there are cases for example where the deceased person was stabbed through the heart or where the head is crushed, where the cause of death would be obvious that the absence of a post mortem report would not necessarily be fatal be in the company of the deceased the night of the celebrations. None of the prosecution witnesses testified as having seen the appellant assault the deceased such that it could be inferred that death was as a result of the assault.” 28.The appellant submits that it is undisputed that Jackson was the last person to see the deceased and that he could not account for the 30 minutes before going back to the celebrations at 2.30am; that both Jackson and Gladys all admitted that there were no signs of a struggle in the house the deceased had slept in. We are also urged to consider that Gladys, stated that she went back to her house in the morning but failed to find the deceased whereupon she assumed that the deceased had gone to fetch water as usual; that the time Gladys got home is however not indicated; and it is only when it got to 9.00am that she started worrying and inquired over the whereabouts of the deceased. 29.The appellant also argues that from the record, Richard, the investigating officer admitted that the deceased's body was discovered at around noon by herds-boys and none of the prosecution witnesses was able to tell the exact time of death. The appellant contends that although it was alluded to by the trial court and Caleb who had ostensibly lent the appellant a torch, that the appellant herein was the culprit owing to his alleged disappearance from around 3.00am to 6.00am, no evidence was ever produced that the deceased died within this alleged three-hour window. The appellant submits that the body was discovered at noon, and there is an unexplained 6 or 7 hours between 6.00am and noon, giving rise to the possibility that the deceased might have died between the hours of 6.00am and noon when she was discovered or within the 30 minutes from 2.00am to 2.30am when Jackson last saw her. 30.The appellant’s counsel explains that she has belaboured at great length on the issue of time of death, to point out the fact that there was a break in the chain as regards the circumstantial evidence relied upon to secure the appellant's conviction. Counsel maintains that there was a ten to eleven hours window where the deceased's whereabouts were unknown. We are urged to consider that Jackson was the last person to see the deceased and that he could not account for the 30 minutes before going back to the celebrations at 2.30am; that Both Jackson and Gladys all admitted that there were no signs of a struggle in the house the deceased had slept in. 31.The appellant reiterates that there was a ten hours window where the deceased's whereabouts were unknown; that whereas it was the prosecution's case that the murder occurred between the hours of 3.00am and 6.00am when the appellant had allegedly disappeared from the celebrations, none of the prosecution witnesses was able to prove this. This unexplained 10-11hours is described as raising doubt as to whether the appellant committed the offence for which he was charged, and that this doubt ought to have been resolved in favour of the appellant. 32.We are urged to find that in the absence of direct evidence as regards the time of death, the trial court erred in convicting the appellant, that is also very possible that the deceased met her death when she went to fetch water, going by Gladys’ assumption upon not finding the deceased in her house in the morning. 33.The appellant adds that another break in the chain related to the explanation given by the appellant regarding how the deceased's blood ended up on his clothing; an explanation which is described as sufficiently and very likely to have occurred during the transfer when the appellant helped move the deceased's body. The appellant points out that the explanation was never dispelled by the prosecution. Moreover, that the appellant’s explanation that some of the blood was from a cow he had helped slaughter during the anniversary celebrations found credence from the evidence by Caleb who during cross-examination admitted to the same and that blood had splashed upon the appellant during the slaughtering exercise. 34.It is further contended that whereas there were allegations that the appellant had previously defiled the deceased, proof of this was never produced. That, the assistant chief equally testified that the appellant was of good character and that he had never heard any bad report regarding him. It is submitted that suspicion, however strong, can never be the basis of a conviction. On account of the foregoing, the appellant submits that the actual circumstances surrounding the deceased's death were unknown; that the prosecution was unable to prove actus rea and mens rea on the part of the appellant; that the burden of proving facts that justify the inference of guilt to the exclusion of any reasonable hypothesis of innocence always rests on the prosecution and never shifts; and that in the instant case, the prosecution was unable to fulfil this duty and this warranted an acquittal and not conviction. This Court is urged to quash the instant conviction. 35.As regards sentence, the appellant submits that the trial court did not consider the time spent in custody, contrary to Section 333(2) of the Criminal Procedure Code. The aforementioned Section 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 to 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.Guided by the said provision, this court in the case of Ahamad Abolfathi Mohammed & Another vs Republic [2018] eKLR, which held that the court is obliged to consider the period an accused person has spent in custody pending trial, the appellant points out that the Sentencing Guidelines (2023) equally echo this principle and obligates the court to take into account the time already served in custody as failure to do so impacts the overall period of detention which may result in a punishment that is not proportionate to the seriousness of the offence committed. 36.It is drawn to our attention that the appellant was arrested on 8th December 2013 and was never released on bail; he was sentenced to serve 35 years imprisonment on 6th October 2021 meaning the appellant spent almost 9 years in remand. That this period was unfortunately not factored in during the sentencing, and the appellant prays that this time be factored in the sentence in the event the conviction is upheld. In addition, that the five years the appellant has spent in custody since being sentenced be also considered. 37.In opposing the appeal, the respondent submits that failure to produce the post mortem report in not necessarily fatal as a lot depends on the circumstances where such a reasonable tribunal, would draw an inference that the injuries sustained by the deceased led to her death. The respondent points out that the deceased had been alive and well as stated by the witnesses, until 2.30am; that at 6.00am she was nowhere to be seen; and her body was found lying in a nearby sugar plantation with the injuries seen on the photographs produced; and that there is no doubt that those injuries are the ones that led to or caused her death. It is thus submitted that in the instant case, the cause of death was obvious and firmly established. 38.The respondent acknowledges that, from the testimonies of witness and due to prevailing circumstances, there was no eye to the incident, but that the circumstantial evidence was adequate. She referred to the case of Abanga alias Onyango v Republic, Cr. App No. 32 of 1990 where this Court set out the conditions to be met before a conviction can be based on circumstantial evidence as follows:“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:i.the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;ii.those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;iii.the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the time was committed by the accused and none else.” 39.The respondent points out that in the circumstances of this case from the blood stained shirt and trouser were recovered from body of the appellant, the blood stained jacket was recovered from his house; and the fact that the appellant did not dispute the issue about the blood stained clothes instead claiming that the blood was from a cow he had assisted Caleb to slaughter for the memorial celebrations; and also the blood splashed on his clothes as he had assisted to move the body of the deceased as ordered by Jackson and Gladys; that Richard confirmed that upon arrest of the appellant he was found wearing blood stained clothes and on close scrutiny of Gladys’ house there were traces of blood under the seat though it appeared someone tried to clean it. It is also pointed out that Elizabeth also confirmed in her testimony that the blood found on the appellant’s clothing matched the blood sample taken from the deceased. We are also urged to find that the circumstantial evidence of the deceased’s blood on the appellant’s clothing is cogent and credible and created a strong nexus between the appellant and the death of the deceased. The respondent reiterates that the evidence directly points to the appellant’s guilt in particular the clothes having blood that belong to the deceased was totally incompatible to his innocence. Further, that the appellant’s defence on how the deceased’s blood got to his clothes cannot hold any water since he did not raise it during cross examination of the witnesses. 40.The respondent further argues that according to Caleb, the person who helped him slaughter the cow was one Rashid Mukovale and other people, but never mentioned the appellant who is his nephew, as one of them; and the appellant did not put these questions to him during his cross examination. In addition, the respondent refers to the evidence of Caleb how at around 3.00am on the material date, the appellant asked him for a torch, and was gone for about three hours; then returned to PW2’s home around 6.00am with claims that he had gone to the toilet. That Caleb stated when the appellant took long to return the torch, he went to look for him at his house but he was not there. He asked other people attending the memorial and none of them confirmed to have seen the appellant at the celebrations between 3.00am and 6.00am on that date in question. The respondent maintains that there is sufficient circumstantial evidence that the appellant was away during the interval the deceased met her death; and in any event Caleb confirmed he had no grudge with the appellant and therefore had no reason set him up. 41.As regards the issue of malice aforethought, the respondent submits that the same was proved in accordance with section 206 of Penal Code as there was sufficient evidence tendered to prove that the appellants acted with malice afterthought. Drawing from the provisions of section 206 of the Penal Code the appellant submits that there was evidence by Jackson and Gladys and to the effect that the appellant had been cautioned against his sexual advances to the deceased who was a daughter to his sister; that from the evidence of Jackson the matter had been discussed with the appellant earlier that night and the same was to come up again for further discussion; that there was further evidence that the appellant had repeatedly defiled the deceased and on more than once occasion the appellant had knocked on Gladys’s door at odd hours asking for the deceased; and at times Gladys found the door open and the deceased missing. On account of this, the applicant submits that the appellant had the intention to silence the deceased once and for all since the family was aware of his sexual exploits with the deceased that is why after assaulting the deceased, he made sure his body was hidden away from her family. We are urged to find that the Appellant had the intention to cause death or to do grievous harm to the deceased; and that the appellant was well aware of his actions and intended consequences of the said acts. In support of this proposition, reference is made to the case of Ali Salim Bahati &another v Republic [2019] eKLR where in similar circumstances this Court was of the view that:“………their vicious attack on the deceased was also a clear indication that they intended the consequences of their actions, that is, the death of the deceased…... Equally, it established malice aforethought on the part of the appellants.” 42.It is contended that the appellant must have known that assaulting the deceased was likely to cause grievous harm or death. The injuries sustained by the deceased were such that anybody inflicting such injuries had no other intention other than cause death. That the vicious force used point to the existence of malice aforethought; and that for these reasons the case was proved to the required standard of beyond reasonable doubt. 43.With regard to sentence and the issue of that the trial court did not consider the time spent in custody, the respondent points out that the trial court had taken note that the Appellant had been in pre-trial custody for 9 years and sentenced him to serve 35 years imprisonment. 44.Having carefully considered the grounds of appeal, the submissions by both parties, and the applicable law and our above mandate, the following issues fall for our determination whether: the prosecution proved its case against the appellant beyond reasonable doubt; the trial court framed the correct issues for determination and properly evaluated the evidence; and whether the trial court misapplied the law, particularly in relation to identification; malice aforethought; and sentence in relation to the period spent in custody. 45.As already stated, this is a first appellate court whose duty is to re-evaluate, re-analyze, and reconsider the evidence presented before the trial court and reach its own independent conclusions, a principle that was well articulated in the case of Gabriel Kamau Njoroge v Republic [1987] eKLR as follows:“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well as on the questions of facts as on questions of law, to demand a decision of the court of first appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions, though it should always bear in mind that it has neither seen or heard the witnesses and to make due allowance in this respect. (see Pandya v R [1957] EA 336, Ruwalla v R [1957] EA 570)”. 46.On the first issue, the appellant was convicted for murder under Section 203 of the Penal Code, which defines the offence as follows:Any person who, with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder.The elements required for a conviction for murder to stand therefore, the prosecution must prove beyond reasonable doubt that the deceased died, establish the cause of death, demonstrate that the accused person committed the unlawful act leading to the death, and show that the accused in so doing acted with malice aforethought. These elements must be sufficiently supported by evidence to eliminate any reasonable doubt concerning the accused's culpability. 47.In this appeal, the fact of death is not disputed, indeed, it is common ground that the deceased died, as this fact is not substantially in dispute, several prosecution witnesses having testified that the deceased was found dead at the scene where the body was recovered. The germane questions that were in dispute were, whether the death of the deceased occurred as a result of the unlawful act or omission of the appellant and if so, whether the appellant had malice aforethought, more so because the post mortem report was not produced nor did any one witness how the injuries were inflicted. We are alive to the fact that there are some cases where cause of death can be established without medical evidence. This Court in the case of Benson Ngunyi Ndungu v Republic [1985] KECA 51 (KLR) held as follows:“Of course, there are cases, for example where the deceased person was stabbed through the heart or where the head is crushed, where the cause of death would be so obvious that the absence of a post-mortem report would not necessarily be fatal. But even in such cases, medical evidence of the effect of such obvious and grave injuries should be adduced as opinion expert evidence and as supporting evidence of the cause of the death in the circumstances relied on by the prosecution.” 48.In this regard, the crucial evidence was that of although no post-mortem report was tendered, the evidence before the trial court demonstrated that the deceased sustained several bruises around the neck, the chest and limbs; she was bleeding from her nose and private parts, and the photographic confirmed the injuries; and she was dead... As pointed out by the respondent the deceased had been alive and well as stated by the witnesses, until 2.30am; and by 6.00am she was nowhere to be seen; and her body was found lying in a nearby sugar plantation with the injuries seen on the photographs produced; and that there is no doubt that those injuries are the ones that led to or caused her death. No other evidence was presented to suggest that there were other injuries which may have snuffed out the life of the deceased. In the absence of any contrary evidence, we are satisfied that the lack of a post-mortem report does not constrain the drawing of a clear causal connection between the multiple injuries and the deceased’s demise. The trial court was therefore right in holding that the death of the deceased and the cause thereof was proved to the required standard. 49.The next issue is who inflicted the injuries? The conviction was purely based on circumstantial evidence. The appellant contends that there was a break in the chain of events; and that there was sufficient intervention that would create a window of possibilities that the culprit was actually the deceased’s grandfather who left Caleb’s home at 2.30am, accessed the house where the deceased was sleeping, the appellant on the other hand was away for about three unexplained hours, before returning to Caleb’s home at 6.00am. The threshold to be met in circumstantial evidence was discussed in Sawe v Republic [2003] KLR 364 wherethis Court observed as follows:“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 his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remain with the prosecution. It is a burden which never shift to the party accused.” 50.The respondent points out that the circumstances of this case formed a consistent flowing chain from Jackson’s evidence that the appellant who is his son had some time back made sexual advances to the deceased; a matter which raised grave concern and he had discussed this with his wife Gladys; and they had warned the appellant about pursuing the deceased as he was the maternal uncle. In fact, that very night the appellant was confronted about the matter, and the discussions were to intended to continue later on another date. Then there was the appellant’s conduct so soon after the deceased left the celebrations in the company of Robai, the appellant borrowed a torch, and disappeared for three hours, returning at 6.00am with the lyrics that he had gone to the toilet. Meanwhile having taken too long to return the torch, Caleb got concerned and went to look for the appellant at his home, but he was nowhere to be found. This chain then finds linkage in the evidence of Jackson who observed that there was blood inside Gladys’s sitting room and it appeared as though someone had tried to clean it; this was corroborated by the evidence of Gladys; and a more telling give away is that Gladys found the appellant trying to wipe away the blood from the floor and immediately the blood was discovered the appellant retreated gradually, and disappeared. 51.The chain was then fortified by a blood-stained shirt and trouser recovered from the body of the deceased, while the jacket was recovered from the appellant’s house, and produced as evidence in court. The appellant did not dispute the issue about the blood stained clothes instead claiming that the blood was from a cow he had assisted Caleb to slaughter for the memorial celebrations; and also the blood splashed on his clothes as he had assisted to move the body of the deceased as ordered by Jackson and Gladys; that Richard confirmed that upon arrest of the appellant he was found wearing blood stained clothes and on close scrutiny of Gladys’s house there were traces of blood under the seat though appeared someone tried to clean it. Whose blood was on the stained clothes? Elizabeth the government analyst testified that she carried out DNA testing on the blood stains on the appellant’s shirt, trouser and jacket and compared with samples from the deceased and appellant. She confirmed that the blood samples on the shirt, trouser and jacket matched those of the deceased. 52.The appellant then spun a new web, that the blood got spluttered onto his clothes in the process of helping to carry the deceased to the vehicle that was waiting to transfer her away from the scene. This cleverly spun web, was never raised in cross examination of any of the witnesses; and indeed, no witness mentioned splashing of blood from the body. 53.We are satisfied that the evidence of the deceased’s blood on the appellant’s clothing is cogent and coupled with his attempts to wipe traces of blood which were found inside the house, plus his slow slithering away into imagined oblivion is credible and created a strong nexus between the appellant and the death of the deceased. The evidence directly points to the appellant’s guilt and was totally incompatible with innocence. As pointed out, his defence on how the deceased’s blood got to his clothes cannot hold any water since he did not raise it during cross examination of the witnesses. There was no eye witness to the incident, but the circumstantial evidence was adequate; and met what is set out in the case of Abanga alias Onyango v Republic. 54.In considering the issue of malice aforethought, the respondent submits that the same was proved in accordance with section 206 of Penal Code, we must make it clear that malice aforethought must not be confused or equated with motive. Under Section 206 of the Penal Code, malice aforethought may be inferred from, among other things, the nature of the injuries inflicted, the part of the body targeted, and the conduct of the offender before and after the attack. The deceased sustained multiple injuries on her neck, breasts bleeding from the nose and private parts, from the photographs produced in evidence, these injuries were not superficial, but were grave and life-threatening. They demonstrated the use of considerable force directed at delicate and vulnerable parts of the body, thereby evidencing an intention to cause grievous harm or death. We are therefore satisified that the prosecution proved beyond reasonable doubt that it was the appellant who unlawfully caused the death of the deceased and that he did so with malice aforethought. We find no basis on which to fault the trial court. 55.As regards the sentence in relation to the period that the appellant spent in remand custody while awaiting trial, we acknowledge that sentencing is within the discretion of the trial court as was stated by this Court in Bernard Kimani Gacheru vs Republic [2002] KECA 94 (KLR), where the Court made it clear that:“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 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.” 56.However, in exercising that discretion, section 333 (2) of the Criminal Procedure Code which provides that:2)Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to 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.A perusal of the record discloses that that in pronouncing the sentence, the learned Judge stated as follows:“I have noted the circumstances the killing appears to have been… The accused says he is remorseful. But a family lost a number (sic!). Justice must cut both ways. The accused must pay for his wrong doing. I note that the accused has been in pretrial custody for 9 years. Taking anything (sic) into account, I hereby sentence the accused person to serve 35 years in prison from the date of conviction. There is a right of appeal to court of appeal within 14 days.”The indication by the learned judge, although not specific on the date the sentence would commence, he nonetheless stated that it would be from the date of conviction which was 9th October 2019; and he observed that the appellant had spent nine years in remand custody while awaiting trial. 57.We therefore find that there was no error in law; and in application of the principles of sentencing. Considering the circumstances of the case, the injuries that were inflicted on the deceased, and the appellant’s mitigation, we consider a sentence of thirty-five (35) years imprisonment to be appropriate. We therefore decline to interfere with the sentence of thirty-five (35) years imprisonment. The only clarity we shall make is that the sentence shall be computed from 2nd July, 2010, which is the date that the appellant was first arraigned in court, and the appellant remained in custody throughout his trial. The upshot is that the conviction was safe and the sentence well deserved; and we uphold it. The appeal on sentence succeeds only to this limited extent of specifying the date that the sentence begins. DATED AND DELIVERED AT KISUMU THIS 31ST DAY OF JULY, 2026.ASIKE-MAKHANDIA.......................................JUDGE OF APPEALH. A. OMONDI.......................................JUDGE OF APPEALL. KIMARU.......................................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR