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Court of AppealPartially AllowedCriminal Appeal (first appeal from Migori High Court Criminal Case No. E008 of 2022)· [2026] KECA 1168 (KLR)

Ayub Mafuvo Ndakwa & 1 other v Republic

Court of Appeal of Kenya
12 June 2026
ASAsike-MakhandiaEME.C. MwitaBOB. Ongaya
1,674 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal converted three ex-police officers' murder convictions to manslaughter and released them, ruling time already served was punishment enough.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Kisumu against conviction and sentence by the High Court at Migori in Criminal Case No. E008 of 2022, in which the appellants, former police officers of the Administration Police specialized stock theft prevention unit, had been convicted of the murder of Daniel Weisiko Moi and each sentenced to ten years' imprisonment. The prosecution case was that during a cattle-theft recovery operation in January 2016, the appellants arrested the deceased, assaulted him, and transported him in a police vehicle in the course of which he died; the post-mortem established death from blunt force trauma to the head. The appellants denied personally assaulting the deceased, attributing his death to beatings by members of the public. At the plenary hearing, when the Court raised with prosecution counsel whether the appropriate charge was manslaughter rather than murder given the evidence, counsel conceded the appeal on that ground and defence counsel was not averse. The Court substituted the murder conviction with manslaughter contrary to section 202 as read with section 205 of the Penal Code. On sentence, applying the proportionality and individualized sentencing principles drawn from Muruatetu, and noting that the appellants were first offenders who had served a substantial portion of their sentence and shown remorse and rehabilitation, the Court set aside the ten-year sentence and substituted a sentence equivalent to the period already served, directing their release forthwith unless otherwise lawfully held. The decision is binding on subordinate courts as to the substitution of convictions and sentencing approach. No costs order was made.

Key legal issues

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01

Appropriateness of the murder charge

Holding

The appeal was conceded by the State on the basis that the proper charge was manslaughter rather than murder, and the Court substituted the conviction accordingly.

Reasoning

When the Court engaged prosecution counsel on whether the appropriate offence was manslaughter rather than murder given the circumstances and the evidence, counsel conceded the appeal on that ground and defence counsel was not averse. The Court therefore substituted the murder conviction with manslaughter without proceeding to a full merits determination of the appeal grounds.

p. 3
02

Sentence for manslaughter

Holding

The ten-year sentence for murder was set aside and replaced with the period already served, given the appellants' mitigation and time in custody.

Reasoning

The Court applied the sentencing principles in Muruatetu emphasizing proportionality, rehabilitation and individualized sentencing. The appellants were first offenders, former police officers who had served a substantial portion of the sentence, and had demonstrated remorse and undertaken rehabilitation programmes. In light of these factors and the circumstances of the offence, the Court found the period already served sufficient punishment, also considering remand time under section 333(2) of the Criminal Procedure Code.

Legal principles established

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  • Where the evidence establishes an unlawful killing without proof of malice aforethought, an appellate court may substitute a conviction for manslaughter contrary to section 202 as read with section 205 of the Penal Code in place of murder.
  • In sentencing, proportionality, rehabilitation and individualized sentencing apply, and where a first offender has served a substantial period of custody with demonstrated remorse and rehabilitation, the period already served may suffice as punishment.

Court orders

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  1. 1.The conviction of the appellants for murder is substituted with a conviction for manslaughter contrary to section 202 as read with section 205 of the Penal Code
  2. 2.The sentence of ten (10) years' imprisonment is set aside and substituted with a sentence equivalent to the period already served
  3. 3.The appellants shall be released forthwith unless otherwise lawfully held
On appeal from
High Court of Kenya at Migori
Criminal Case No. E008 of 2022
Jurisdiction invoked
First appeal against conviction and sentence under the Court of Appeal's appellate criminal jurisdiction; the court exercised its power to substitute a conviction for a lesser offence (manslaughter contrary to sections 202 and 205 of the Penal Code).

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ayub Mafuvo Ndakwa & 1 other v Republic", Case Analysis (2026). Criminal Appeal (first appeal from Migori High Court Criminal Case No. E008 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1168/eng@2026-06-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.