Makoiya & 4 others v Republic (Criminal Appeal E006 of 2021) [2026] KECA 730 (KLR)
The bottom line
#Kenya's Court of Appeal upheld five murder convictions and 25-year sentences, but ruled the years the men spent awaiting trial must count toward their time served.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the offence of murder was proved against each of the appellants to the required standard
- 2.Whether the appellants were positively identified as the persons who caused the deceased's death
- 3.Whether contradictions in the prosecution evidence vitiated the conviction
- 4.Whether adverse inference should have been drawn from the failure to call the photographer as a witness
- 5.Whether malice aforethought was established
- 6.Whether the sentence of 25 years was harsh and excessive
- 7.Whether the period spent in custody should be taken into account under Section 333(2) of the Criminal Procedure Code
Key legal issues
#Whether the murder was proved and the appellants positively identified
Yes. Three eyewitnesses who knew the appellants, corroborated by undisputed photographic evidence placing four appellants attacking the deceased, established identification beyond reasonable doubt; it was a case of recognition, not identification of strangers.
The court distinguished recognition from identification of a stranger, holding recognition of known persons more reliable. The attack occurred in broad daylight at 3pm, witnesses and assailants were neighbours who knew each other, and the appellants did not deny presence at the scene. Photographs taken by a fled witness corroborated PW1's account, and although their maker was not called, no objection was raised at trial and the appellants did not disown their images.
Whether malice aforethought was established
Yes, inferred from the use of crude weapons, blows to vulnerable parts of the body, drowning the deceased in a river, and the premeditated revenge motive.
Relying on Rex v Tubere s/o Ochen, the court held malice may be inferred from the weapon used, the manner of use and the part of the body injured. The post mortem showed severe fatal injuries, and the revenge mission following Dickson's death in prison, together with previously reported threats, demonstrated premeditation and intent to kill or cause grievous harm.
Whether alleged contradictions in the prosecution evidence warranted rejection of the conviction
No. Only substantial contradictions on material facts are fatal; the inconsistencies here were trivial and did not affect the substance of the charge.
The court applied Twehangane Alfred v Uganda and Langat alias Kichokio v Republic, holding that evidence must be read holistically and that it is not every contradiction that warrants rejection of evidence. Variances in the estimated size of the crowd or who was undressing the deceased were immaterial given the overwhelming eyewitness and photographic evidence.
Whether failure to call the photographer as a witness was fatal
No. The prosecution has discretion on which witnesses to call, and adverse inference applies only where the evidence tendered is barely adequate; here there were no gaps in the prosecution case.
Section 143 of the Evidence Act abolishes any requirement of a particular number of witnesses. Under Bukenya v Uganda, adverse inference is drawn only where the uncalled witness's evidence would have elucidated a matter and the evidence called is insufficient. The photographer's evidence was corroborative only, the evidence otherwise stood on its own, and he was unavailable having fled threats to his life.
Whether the sentence and Section 333(2) were properly applied
The appeal against sentence failed, but the court directed that the custodial period of the 1st, 2nd and 3rd appellants, who were in custody from 21st October 2014 to 19th September 2019, be taken into account in computing their sentences.
The court found the trial Judge exercised discretion properly in imposing 25 years. However, since there were no bail approval proceedings for the 1st, 2nd and 3rd appellants, Section 333(2) of the Criminal Procedure Code mandated crediting the period spent in custody. The court found the sentence lenient rather than excessive but declined to disturb it.
Legal principles established
#- Evidence of recognition of a known person is significantly more reliable than identification of a stranger, and where witnesses and assailants are village mates who knew each other, identification is free from error if positive.
- Only contradictions that are substantial, fundamental and touching on material facts can vitiate a conviction; minor or trivial contradictions do not affect credibility.
- Adverse inference for failure to call a witness is only drawn where the prosecution evidence is barely adequate; it is not inferred where the evidence tendered is sufficient to prove the matter in issue.
- Whether to call a particular witness is a matter within the prosecution's discretion, with which an appellate court will not interfere absent an oblique motive.
- It is mandatory for a court, in computing a jail term, to take into account the time an accused person spent in custody during the trial under Section 333(2) of the Criminal Procedure Code.
Court orders
#- 1.Appeal against conviction dismissed
- 2.Appeal against sentence dismissed
- 3.The period spent in custody by the 1st, 2nd and 3rd appellants between 21st October 2014 and 19th September 2019 shall be considered when computing their sentences
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kitale
- Criminal Case No. 25 of 2014
- Jurisdiction invoked
- First appeal under Section 379 (1) of the Criminal Procedure Code
Relief refused
#Setting aside of the murder convictions
Appellants were positively identified by witnesses who knew them, and the photographic and eyewitness evidence established the offence beyond reasonable doubt
Interference with the sentence of 25 years
The court found the sentence appropriate, indeed if anything lenient, and declined to disturb it
Costs
No costs order made in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Arising from the conclusions arrived at herein above on each and every issue discussed, the appellants' appeal against both conviction and sentence is dismissed.
However, the period of the 1st,2nd and 3rd appellants spent in custody between 21st October 2014 and 19th September 2019 shall be considered when computing their sentences.
Evidence of recognition is considered significantly more reliable and "stronger" because it involves a familiar "picture of the person" rather than a fleeting observation of a stranger.
It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the Court and therefore necessarily create some doubt in the mind of the trial court that an accused is entitled to benefit therefrom.
The adverse inference will only be made by the Court if the evidence by the prosecution is not sufficient or is barely adequate.
Under Section 333 (2) of the Criminal Procedure Code, it is mandatory for the court to take into account the time an accused person spent in custody during the trial when computing their jail term.
Issues in the judgment
#The court simultaneously describes the 25-year sentence as too lenient yet declines to disturb it, without explaining why it did not enhance it, creating tension with its conclusion that the trial court's sentencing discretion was properly exercised.
Internal chronological inconsistencies: the case number and plea are dated 2014, yet the murder date is given as 5th April 2024 in the opening paragraphs while PW1's testimony places the attack on 5th April 2014, and the nolle prosequi is dated 14th July 2025 before 'the trial commenced', which is irreconcilable with a 2019 conviction.
The judgment inconsistently refers to the same witness as both PW2 and PW3 (the defiled daughter), including citing PW2's evidence when PW2 is the doctor who produced the post mortem report.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makoiya & 4 others v Republic (Criminal Appeal E006 of 2021) [2026] KECA 730 (KLR)", Case Analysis (2026). Criminal Appeal (unnumbered in judgment, arising from Kitale High Court Criminal Case No. 25 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/730/eng@2026-04-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.