Benard Ochieng & 1 other v Republic

The court applied the Abanga and Sawe tests. The appellants had fought the deceased over a land sale weeks before; they fled the homestead, failed to report the death, and were traced two days later in Sori in possession of the deceased's phone, documents and other effects positively identified by PW1 and PW4. The chain extended to no one else, and the exculpatory facts were incompatible with innocence on any reasonable hypothesis.

The court applied the four requirements from Isaac Ng'ang'a Kahiga as restated in Athuman Salim Athuman: positive proof of possession, identification of the property as the deceased's, that it was stolen, and recency of theft. PW8 documented the chain of custody and personally recovered the items from the appellants two days after the killing. The time lapse was sufficiently proximate, and the appellants' explanations were found wanting.

Citing Kinyatti v Republic and Mwangi v Republic, the court held that the trial court may assess the probative value of a hostile witness's evidence in light of the whole record. PW4's initial statement identifying the stolen items was corroborated by PW8's recovery of the items and the chain of custody maintained by PW7, so the trial court rightly considered the totality of evidence rather than PW4's oral testimony alone.

Section 206 of the Penal Code defines malice aforethought to include intent to cause death or grievous harm. Relying on Republic v Tubere s/o Ochen, the court considered the weapon used and the body part targeted. The deep cut to the back of the head was deliberate and fatal; combined with the brutality of the attack and the familial relationship, the only inference was intent to kill or cause grievous harm.

Under Kiarie v Republic the burden of disproving an alibi rests on the prosecution. Here the prosecution discharged that burden by showing the appellants were arrested with the deceased's items shortly after the murder. Their claim that they were fishing in Sori was uncorroborated, and the strong circumstantial evidence undermined it, so the trial court's rejection of the alibi was upheld.

The court acknowledged Francis Karioko Muruatetu, which held the mandatory nature of the death sentence under Section 204 of the Penal Code unconstitutional because it deprived courts of sentencing discretion. However, the court held that death remains the ultimate sentence for premeditated, extremely heinous crimes, and the killing of one's own father in a brutal and premeditated manner qualified, so the death penalty was appropriate and the appeal on sentence failed.