Mwaringa & another v Republic
The bottom line
#Kenya's Court of Appeal upheld the murder convictions of two police officers, ruling that police cannot claim self-defence and must use force only as a last resort.
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 by proof of malice aforethought was established
- 2.Whether the sentence imposed on the appellants was proper
Key legal issues
#Whether malice aforethought was established notwithstanding the self-defence claim
Malice aforethought was established; the appellants, acting in concert, used excessive force on an immobilised man who posed no danger, intending death or grievous harm.
The deceased was first shot in the leg and abdomen and lay immobilised on the ground before the fatal head shot. The threat had been diffused; a shot to the head of a person no longer a threat, by armed police officers who knew a head shot was likely to kill, denoted intention to cause death or grievous harm under Section 206 of the Penal Code. The stones-and-club danger was negligible against armed officers.
Whether the defence of self-defence under Section 17 of the Penal Code applied to police officers
Section 17 does not apply to police use of force; the National Police Service Act is a complete and exhaustive code requiring non-violent means first and proportionate force, with firearms as a last resort.
Relying on I.P. Veronica, the Court held that in light of the express provisions of the National Police Service Act on use of force and firearms, there is no room for invoking Section 17 and common law principles. Even where force is justified, an officer has no carte blanche; force must be proportional to the objective, the seriousness of the offence and the level of resistance.
Whether non-production of the fatal bullet/cartridge vitiated the conviction
No; the conviction could stand because the ballistic evidence, firearm register and eyewitness testimony established the fatal shot came from the 2nd appellant's rifle.
Six spent cartridges recovered at the scene were forensically matched to G3 Rifle S/No. 66xxxx9 assigned to the 2nd appellant. The post mortem confirmed death from a gunshot to the head. Only the appellants were armed. Following Chris Kasamba Karani and Ramadhan Kombe, failure to recover the weapon is not fatal where the court believes on the evidence that it existed.
Whether the 10-year sentence should be disturbed
The sentence was an exercise of trial-court discretion, informed by the pre-sentencing reports and the appellants' official duty; it was lenient but the Court declined to interfere absent notice of enhancement.
Following Bernard Kimani Gacheru, sentence rests in the trial court's discretion and appellate interference requires manifest excessiveness or a wrong principle. The trial judge considered the pre-sentencing reports and official duty in imposing a lenient sentence below the maximum; without a notice of enhancement of sentence the Court was disinclined to interfere.
Legal principles established
#- A police officer must resort to non-violent means first and may use force only when non-violent means are ineffective; force used must be proportional, and firearms are a last resort under the National Police Service Act.
- A first appellate court must re-examine the evidence afresh and reach its own conclusion while allowing for the trial court's advantage of seeing and hearing the witnesses.
- Failure to recover or produce the murder weapon is not fatal to the prosecution case if the court believes on the evidence that such a weapon existed.
- An appellate court will not easily interfere with sentence unless it is manifestly excessive, or the trial court overlooked material factors, took into account wrong material, or acted on a wrong principle.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The judgment of the High Court of Kenya at Garsen in Criminal Case No. 5 of 2020 delivered by Githinji, J. on 14th March 2024 and the sentences passed on 20th March 2024 are upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Garsen
- Criminal Case No. 5 of 2020
- Jurisdiction invoked
- First appeal to the Court of Appeal against conviction and sentence under the Court's appellate jurisdiction (Rule 31(1)(a) of the Court of Appeal Rules, 2022 invoked)
- Consolidated with
- Criminal Appeal E003 of 2025
Relief refused
#Substitution of conviction for murder with manslaughter
Court declined the respondent's concession that the offence was manslaughter, holding the elements of manslaughter distinguishable from murder
Setting aside the 10-year sentence as harsh and excessive
Sentence is a discretionary exercise of the trial court; in the absence of notice of enhancement the Court declined to interfere despite considering the sentences lenient
Costs
No costs order is recorded 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.
In the end, we find that the appeal lacks merit and accordingly dismissed it in its entirety. Consequently, the Judgment of the High Court of Kenya at Garsen in Criminal Case No. 5 of 2020 delivered by Githinji, J. on14th March 2024 and sentences passed on 20th March 2024 respectively, is hereby upheld.
The provisions of the Act are a complete and exhaustive code and demand that a police officer must resort to non- violent means as the first option and to use force only when non-violent means are ineffective.
We do not therefore hesitate to find and hold that the appellants, who acted in concert with each other, had malice aforethought and, consequently, the offence of murder was established.
It matters not that the particular cartridge from the fatal bullet was not produced, the fact remains that the deceased was fatally shot by a gun issued to the 2nd appellant.
In view of the foregoing, we arrive at the inescapable conclusion that the prosecution proved the offence of murder beyond reasonable doubt.
While we consider the respective sentences to be lenient, in the absence of notice of enhancement of sentence, we are disinclined to interfere with the sentence meted out against the appellants.
Issues in the judgment
#The appeal is stated to be from a judgment at Garsen but 'delivered in Malindi', an internal inconsistency in the description of the decision below.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwaringa & another v Republic", Case Analysis (2026). Criminal Appeal E002 & E003 of 2025 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1834/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.