Kevin Oketch Bina alias Kirutu & 4 others v Republic
The bottom line
#Kenya's Court of Appeal reduced five murder convictions to manslaughter over a witchcraft-related killing, but kept their 15-year sentences intact.
What this practically means
#Executive summary
#Key legal issues
#Proof of death and causation
Death and its cause were proved beyond reasonable doubt by eyewitness testimony, the post-mortem and the scene evidence.
PW1, PW2 and PW4 witnessed the attack; PW3 saw the body with multiple cut wounds; PW5's post-mortem found deep cut wounds to the neck and head and a fractured C2 vertebra, with bleeding secondary to the wounds as the cause of death. The court found no controversy on this ingredient.
Identification and alibi defences
The alibi defences, raised late at the defence hearing, were properly rejected; recognition of known assailants in broad daylight was reliable.
The appellants raised alibis only during the defence hearing, allowing the court to treat them as possible afterthoughts. Their supporting witnesses (wives, DW4) could not account for their whereabouts throughout. PW1, PW2 and PW4 recognised the appellants as known neighbours in daylight, and their first report to PW3 named the appellants, supporting veracity.
Common intention under section 21 of the Penal Code
The ingredients of common intention were satisfied; the appellants acted in concert in an unlawful assault of which death was a probable consequence.
The appellants jointly went in search of the deceased, escorted him home and attacked him with pangas and rungus. Following Abonyo and Ombati, individual roles need not be proved where the group acts in concert in pursuit of an unlawful purpose whose probable consequence is the offence committed.
Malice aforethought
Malice aforethought was not proved; the spontaneous witchcraft-related attack established manslaughter, not murder.
Although the trial court inferred intent to kill from the weapons and targeting of the head, neck and spine, the appellate court found the attack arose from a spontaneous belief that the deceased had bewitched Jared Adek Ng'ang'a, with no evidence of premeditation. Applying Katana Karisa by parity of reasoning, no section 206 intention was established.
Sentence
The 15-year sentences, though imposed for murder, were lawful, fair and proportionate for manslaughter; the appeal against sentence was dismissed.
Having substituted a conviction for manslaughter, for which the law prescribes life imprisonment, the court found the existing 15-year sentences lawful and proportionate and declined to interfere, dismissing the appeal against sentence.
Legal principles established
#- On a first appeal the Court must reconsider, reassess and re-evaluate the evidence afresh and draw its own conclusions, while allowing for the fact that it did not see the witnesses.
- An accused who raises an alibi bears no burden of proving it; the prosecution retains the burden of disproving it, and delay in raising the alibi may be weighed against the accused.
- Where persons act in concert in pursuit of an unlawful purpose whose probable consequence is death, each is deemed to have committed the offence under section 21 of the Penal Code without proof of who inflicted the fatal blow.
- Knowledge that grievous harm is likely is not by itself sufficient to convert homicide into murder; malice aforethought requires one of the intentions in section 206 of the Penal Code.
- A killing arising from a spontaneous belief in witchcraft, with temporary loss of self-control and no evidence of premeditation, may establish manslaughter rather than murder.
Court orders
#- 1.Conviction of the appellants for murder quashed
- 2.Appellants convicted of manslaughter contrary to section 202 as read with section 205 of the Penal Code
- 3.Appeal against sentence dismissed; sentences of 15 years' imprisonment upheld
- On appeal from
- High Court of Kenya at Migori
- HCCRC No. 27 of 2017
- Jurisdiction invoked
- First appeal to the Court of Appeal against conviction and sentence in a murder trial (High Court criminal jurisdiction; Penal Code ss. 203 and 204)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kevin Oketch Bina alias Kirutu & 4 others v Republic", Case Analysis (2026). Criminal Appeal No. E149 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1845/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.