Ndakwa & another v Republic (Criminal Appeal E111 of 2024) [2026] KECA 1168 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether, on the evidence, murder was the appropriate charge against the appellants or whether the proper offence was manslaughter contrary to section 202 as read with section 205 of the Penal Code
- 2.What sentence is appropriate for the offence of manslaughter, taking into account mitigation, time already served and the period spent in remand custody under section 333(2) of the Criminal Procedure Code
Key legal issues
#Appropriateness of the murder charge
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.
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.
Sentence for manslaughter
The ten-year sentence for murder was set aside and replaced with the period already served, given the appellants' mitigation and time in custody.
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
#- 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
#- 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.The sentence of ten (10) years' imprisonment is set aside and substituted with a sentence equivalent to the period already served
- 3.The appellants shall be released forthwith unless otherwise lawfully held
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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).
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.
Accordingly, the conviction of the appellants on the information charging them with murder is hereby substituted with a conviction on the information charging them with manslaughter contrary to section 202 as read with section 205 of the Penal Code.
The sentence of ten (10) years' imprisonment is set aside and substituted with a sentence equivalent to the period already served. The appellants shall consequently be released forthwith unless otherwise lawfully held.
In view of these mitigating factors, and considering the circumstances of the ofience, we are satisfied that the period already served by the appellant is suficient punishment.
In the light of the foregoing, we proceed to substitute the conviction of the appellants for the ofience of murder with manslaughter contrary to section 202 as read with section 205 of the Penal Code.
Issues in the judgment
#The judgment is dated 12th June 2026, a future-dated delivery date, and the record shows a Deputy Registrar certification of a true copy; the appellants' counsel at one point refers to a sentence of 'six years or any other term' although the sentence imposed by the trial court was ten years.
No individual judge is identified as authoring the judgment; it is delivered over the joint signatures of three Judges of Appeal with no 'JUDGMENT OF' designation.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndakwa & another v Republic (Criminal Appeal E111 of 2024) [2026] KECA 1168 (KLR)", 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.