Mike Munene & Another v Republic

Appeal filed on 15th August 2019, that the prosecution case had not been proved beyond reasonable doubt. 3. The appellants filed submissions dated 15 th December, 2025, urging that the sentence was disproportionately severe and should be reduced. In reliance on Benard Kimani Gacheru v Republic [2002] eKLR, and Shadrack kipkoech Kogo v Republic [2003 eKLR, they submitted that an appellate court may interfere where a sentence is manifestly excessive, or imposed on wrong principles. They also refer to Joseph Njuguna Mwaura v Republic [2013] eKLR, and Nyabuto vs Republic [2016] eKLR and posit that offences committed in emotionally charged and unplanned group settings carry lower culpability. That spontaneous mob actions cannot be treated the same as premeditated acts and sentencing should reflect the lack of planning. 4. The appellants contend that the Court should assess their individual roles in the mob incident rather than imposing a blanket sentence. That sentencing must differentiate between the degrees of participation of the offenders to ensure fairness. To buttress this point they rely on the cases of Boniface Mwangi v Republic [2019] eKLR and the High Court decision of Fatuma Hassan Salo v Republic [2016] eKLR. 5. The appellants rely on the cases of Opicho v Republic [2009] eKLR, Douglas Muthaura N’toribi v Republic [2014] eKLR, Jared Koita Injiri v Republic [2019] and Page 2 of 16

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Richard Ambani v Republic [1990] eKLR, to urge for leniency on account of being orphans, biological brothers and breadwinners. Further that their youthful ages of 22 and 24 years respectively, at the time the offence was committed are a recognized mitigating factor. That as young offenders they possess a high potential for rehabilitation and reform, and are indeed rehabilitated. 6. Ms. Joyce Gacheru, the learned Principal Prosecution counsel filed submissions dated 9th March 2026 for the respondent. Counsel submits that it is not contested that the victim is deceased and that his death was as a result of an unlawful act as revealed in the post mortem report. That it was the appellants who led the attack on the deceased at midnight on the fateful night, and returned at 2 am to take him away, only for him to be found beaten to death the following day. 7. Counsel urges that the Court of Appeal expressed itself on identification in Peter Musau Mwanzia v Republic [2008] eKLR, stating that for the evidence of recognition to be relied upon, the witness claiming to recognize a suspect must establish circumstances that would prove that the suspect is not a stranger to him, and thus, make a difference between recognition and identification of a stranger. Counsel submits that PW1, PW2 and PW3 all gave credible evidence. That PW1 and PW3 saw the appellants that night and recognized them by name. Furthermore, they Page 3 of 16

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were relatives and neighbours and therefore, the evidence on identification was solid. 8. In reliance of Hyam v DPP [1974] A.C. Counsel submits that the appellants had malice aforethought as they knew that their actions could lead to the deceased’s death when they cut him and rallied a mob to beat him causing grievous harm. She submits that the prosecution proved its case beyond reasonable doubt and both conviction and sentence should be upheld. 9. The appeal came before Court for plenary hearing on 18 th March 2026. The appellants were present at Embu prison. Mr. Muchangi learned counsel appeared for them and relied on the filed submissions entirely. Ms. Gacheru was present for the respondent and she also relied on her submissions entirely. 10. This being their first appeal, the appellants have a legitimate expectation that the entire evidence tendered by the seven witnesses for the prosecution, and their defences before the trial court will be subjected to a fresh evaluation and analysis, as required under rule 31 of the Court of Appeal Rules 2022. As we re-evaluate the evidence laid before the trial court, and draw inferences of fact on the guilt or otherwise of the appellants, we bear in mind that we neither saw nor heard the witnesses testify, and give due allowance therefor. Page 4 of 16

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11. The predecessor of this Court explained the mandate of the court on first appeal in Okeno v Republic (1972) EA 32, as follows: “The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Rawal vs R (1957) EA 570). It is not a function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's finding and conclusion; it must make its own findings and draw its own conclusion. Only then can it find whether the magistrate's findings can be supported. In doing so it should make allowance for the fact that the trial court had the advantage of hearing and seeing the witnesses (Peters vs Sunday Post (1958) EA 424)”. 12. Section 203 of the Penal Code under which the appellants were charged and convicted provides that: “Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” 13. We have therefore, subjected the entire evidence to a fresh evaluation and analysis, to establish whether the prosecution proved beyond reasonable doubt, the fact of the death of the deceased; that the death of the deceased was caused by an unlawful act or omission on the part of the appellants, and that such an unlawful act or omission was committed with malice aforethought. 14. These elements were enumerated in the decision of this Court in Anthony Ndegwa Ngari v Republic (2014) eKLR, as follows: Page 5 of 16

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“For the offence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought. (See Nyambura & Others-vsRepublic, [2001] KLR 355).” 15. To ascertain that death occurred and that the death was occasioned through an unlawful act, we start with the testimony of PW1, Besebina Gatiria Kaburu the mother of the deceased. She stated that on the night of 26 th and 27th July 2019, at about 2 am, many people came into her compound and took the deceased away. As he was being taken away, the deceased was crying and saying to PW1 that he had been tied up and he was going to die. PW1 tried to intervene but was threatened. The following day she got information that the deceased had been killed and his body left by the road side. She went to the road and saw the body. Subsequently, the police took it away. 16. Fredrick Muthumo Kaburu, PW5 a brother to the deceased, received information at about 4.30 am from his uncle Cyrus Mutira, PW3, telling him that the deceased had been seized and taken away to an unknown place. PW3 had heard the deceased calling for help in Swahili language saying: “Nisaidieni naenda kuuawa”. At about 6 am PW5 went out and found the deceased lying by the road side groaning in Page 6 of 16

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pain. He rushed back home to inform PW1 and also get a blanket to cover the deceased but the deceased had died by the time PW5 returned to the scene. 17. John Maingi Masero, the Investigating Officer was PW7. He testified that on 27th September 2017, at around 9.40 am, he received a call from the Assistant Chief of Kiringoni Sub- location informing him that there was a dead body lying in open ground near Kerogo church along MukuiMumbuni road. PW7 was among the officers that went to the scene and transferred the body of the deceased to Chuka mortuary. He noted deep cut wounds on the right wrist joint, and on the left hip joint, visible stab wounds and bruises all over the body of the deceased. 18. Dr. Justus Kitili, PW6 performed the post-mortem examination on the body of the deceased on 4th October, 2017 and found external injuries including: -Bruises on the left parietal scalp, -Swelling of the left eye, -Bruises on the right side of the neck, -Two cuts on the right shoulder, -Deep cut on the right wrist joint measuring 4cm long, -Bruises on the right forearm, -Multiple bruises on the chest and abdomen, -Deep cut on the left hip measuring 3 cm long and -Bruises on both thighs and legs. Page 7 of 16

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Internally, the Doctor observed that the body had a fracture of the left parietal skull bone, and a blood clot on the left side of the brain. He formed the opinion that the deceased died as a result of severe head injury, inflicted by a blunt object. He compiled the post-mortem report and tendered it in evidence as P. Exh 1. 19. From the foregoing evidence, it is not in dispute that Kelvin Gitari Kaburu died, and that his life snuffed out prematurely through an unlawful act. 20. Next, we scrutinize the evidence of identification in accordance with the principles set in Maitanyi v. Republic [1986] eKLR, to establish whether the trial court was right to find that the appellants committed the unlawful act, which caused the death of the deceased. In Maitanyi (supra) this Court held that identification of a suspect under difficult conditions must be carefully examined alongside other evidence to eliminate the possibility of error and, or mistaken identification. We also call to mind the case of Simon Materu Munialu v Republic [2007] eKLR, where it was held that convictions based solely on identification, particularly at night, or under challenging circumstances, require heightened scrutiny by the trial court. 21. The key evidence herein on identification came from PW1. She testified that she was awakened in the wee hours of the night by screams and when she went out of her house, she saw the two appellants chasing the deceased towards her house. The deceased was saying that the two Page 8 of 16

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appellants had Page 9 of 16

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cut him on the hand and hip. PW1 screamed causing the two appellants to run away but they promised to return. 22. PW2 a sister in law to the deceased, testified that the appellants and the deceased lived together and were her neighbours situated some 20 metres away from her house. On the night of 26th September, 2017 at about 12:30 am she heard a knock on the deceased’s door. A short while later she heard the deceased cry out that Munene and Mwiti (the appellants), had cut him on the hand. She alerted PW1, her mother in law who lived next door to her of what was going on. 23. When the appellants left, the deceased came to PW1’s house and PW2 heard him asking for a lamp saying he needed to see how badly the cuts inflicted on him by Munene and Mwiti were. She then heard the deceased saying he was going back to his house to find some medicine for the cuts. At 1 am PW2 heard the appellants return. Shortly thereafter the deceased started screaming and pleading not to be tied up. The appellants bound him and, left with him and the following morning, she learnt that the deceased had been killed when the police came to his house to take photographs. 24. PW3 was an uncle to the deceased and the appellants, the deceased being his brother’s son, while the appellants were sons to his sister. The deceased and the appellants lived together in the deceased’s house 5 metres away from his. On the fateful night PW3 heard the deceased asking why Page 10 of 16

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Munene and Mwiti had come to fight him yet they lived together. He heard the appellants tell the deceased in Swahili language: “Utatoa machine”, and he heard the deceased say: “Mumekuja kuniuwa! Mumenikata”. He could hear them from his house. Presently, the appellants left the deceased’s house with Munene announcing that they would be back. 25. At about 1 am they returned with a mob and surrounded the deceased’s house. PW3 was able to see them through the gaps between the wooden planks that make up the wall of his house. He recognized the appellants among the intruders. He saw the deceased bound and being taken away by the mob as he cried: “Nisaidieni naenda kuawa.” (Help me! I am going to be killed!). PW3 did not help him for fear of reprisal. 26. PW4 Eric Munene, was the witness to whose house the appellants came at about 2 am on the night of infamy, bringing a power saw they said had been stolen earlier, and which they had recovered from the deceased. They brought it to him for safe keeping to be collected later. He kept the power saw. The next day he learnt from his wife that the deceased had been killed and that the police had come asking for the power saw in his absence. He went to the police station and recorded his statement. 27. When placed on their defence each appellant denied the offence on oath and raised an alibi defence in similar fashion. In essence, the appellants are claiming that they Page 11 of 16

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were in a different place and not at the scene when the crime happened, meaning that they could not have committed the crime. 28. We have analyzed the alibi defence to establish whether it creates a reasonable doubt in the prosecution case. An alibi raises a specific defence and an accused person who puts it up in answer to a charge does not in law thereby assume the burden of proving that answer. The burden of proving the falsity, if at all of the alibi defence lies with the prosecution. It is sufficient if the alibi introduces into the mind of the court a reasonable doubt. (See the holding of this Court in Kiarie v Republic [1984] KLR 739 and Karanja v Republic [1983] KLR 501). 29. This Court referred to the case of Karanja v Republic (supra), in its decision of Victor Mwenda Mulinge v Republic [1983] KLR 501 and held that “In a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the deceased’s guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigating and thereby prevent any suggestion that the defence was an afterthought.” Ideally therefore, even though a defence of alibi can be raised at any time, it should be raised at the earliest opportunity during investigation to allow it to be Page 12 of 16

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investigated. A delayed alibi must still be considered by the court but it may come across as an afterthought. 30. The appellants state that on the material night they were away in Chogoria visiting their ailing father in hospital. That they were in hospital until 11pm on the fateful night and thereafter, they spent the night at a place the 1st appellant called Neema House and the 2 nd appellant called Neema Lodge. They denied knowledge of any missing power saw, or having quarreled with the deceased. We weigh this evidence together with the rest of the evidence on record to establish whether it creates a reasonable doubt in the mind of the Court concerning the identification of the appellants which, we note is by recognition. 31. Lord Widgery CJ observed in R v Turnbull, [1976] 3 All ER 551, that the quality of identification evidence is critical. If the quality is good and remains good at the close of the defence case, the danger of mistaken identification is lessened, but the poorer the quality, the greater the danger. He went on to state as follows: “Recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.” 32. In the oft-cited case of Reuben, Taabu Anjononi & 2 Others v Republic [1980] eKLR the Court stated thus: Page 13 of 16

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“This, however, was a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. We drew attention to the distinction between recognition and identification in Siro Ole Giteya v The Republic (unreported.)” 33. Having warned ourselves of the dangers of mistaken identity when it comes to recognition, we note that between the hours of midnight and 2 am on the material night, the evidence indicates that PW1 and PW3 saw and heard the appellants at the scene of crime. PW2 heard them in the deceased’s room and heard the deceased call them by name. Further, at 2am the appellants presented themselves to PW4 and gave him the power saw that was the reason of the attack to keep for them. 34. The appellants having been placed at the scene of crime by three of the seven prosecution witnesses, the chances of all three witnesses having been mistaken are minimal. We therefore, find that the totality of the evidence places the appellants squarely at the scene of crime at the relevant time and that their identification which was by recognition was positive. 35. Having so far found, the question that follows is whether the injuries on the deceased were inflicted with malice aforethought. Malice aforethought connotes the mens rea, Page 14 of 16

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or Page 15 of 16

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the intention to kill another person. Section 206 of the Penal Code defines it as follows; “206. Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances: (a) an intention to cause the death or to do grievous harm to any person, whether that person is the person actually killed or (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;” 36. Malice aforethought does not only exist where the act was planned or premeditated. The manner in which the act resulting in death was committed can itself lead to the conclusion that there was malice aforethought. In Republic vs. Tubere S/O Ochen (1945) 12 EACA 63, the Court outlined several factors essential in determining malice aforethought, including the nature of the weapon used, the manner in which it was applied, the specific body part targeted, and the conduct of the accused before and after the incident. 37. In the present case, the appellants deliberately inflict injuries on the deceased’s hip and hand. They then went away and returned with a mob. PW1 and PW3 saw the Page 16 of 16

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deceased bound and being led away as he cried out that he was going to be killed. Both witnesses specifically identified the appellants as the persons who were leading the mob. These circumstances indicate that the assault was neither accidental nor impulsive but rather intentional. From the vicious nature of the injuries that were inflicted upon the deceased, it is evident that the appellants intended to kill him, or at the very least cause him grievous harm and therefore, malice aforethought was properly inferred under Section 206(a) and (b) of the Penal Code. 38. On whether the sentence of 30 years imprisonment was justified, the appellants contend that the Court should assess their individual roles in the mob incident rather than imposing a blanket sentence. That sentencing must differentiate between the degrees of participation of the offenders to ensure fairness. However, the appellants being part of a group that attacked the deceased with the common intention of killing him, it matters not who struck the fatal blow. The act of one are taken to be the acts of all. 39. Under the Penal Code a person who is convicted of murder under section 203 is liable to the death penalty as provided under section 204. The trial judge considered both the aggravating and mitigating factors and exercised his discretion stating as follows: “This court has considered the mitigating circumstance put forward by both the prosecution Page 17 of 16

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and the convicts. This court agrees prosecution that the convicts Page 18 of 16 with the

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showed no mercy to the deceased despite pleading for mercy and should expect non from this court. It is true they may have been incensed by theft of their power saw machine but really ought not to have killed their cousin in such a brutal manner. Having considered all factors, I am satisfied that though a death sentence is prescribed by law under section 204 of the Penal Code the convicted persons do not deserve the ultimate penalty. A custodial sentence will be commensurate with the crime they committed in the circumstance. They are each sentenced to serve 30 (thirty years) in jail.” 40. The appellate Court does not interfere with sentence on appeal unless the trial judge has acted upon wrong principles, or overlooked some material factors as stated by the predecessor of this Court in the case of Ogolla s/o Owuor v Republic, [1954] EACA 270. 41. After a careful consideration of the rival arguments and the law applicable, we find that the appeal is lacking in merit and is hereby dismissed on both conviction and sentence. Dated and delivered at Nyeri this 25th day of September, 2026. S. ole KANTAI .......................... ... JUDGE OF APPEAL L. ACHODE .......................... . JUDGE OF APPEAL KATWA KIGEN ……………………… JUDGE OF APPEAL Page 19 of 16

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I certify that this is a true copy of the original Signed DEPUTY REGISTRAR Page 20 of 16

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