Henry Kobia v Republic

2. As this is a first appeal, we are mandated to evaluate, analyse and consider afresh the evidence that was adduced before the High Court and make our own independent conclusions. This was the holding in the celebrated case of Okeno vs. Republic [1972] EA 32, where the role of a first appellate court is given as follows: “An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination [Pandya vs. Republic (1957) EA 336] and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusion (Shantilal M. Ruwala v. Republic [1957] EA 570.) It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, (See Peters v. Sunday Post, [1958] EA 424.)” 3. Given our mandate in this appeal, we shall summarise the evidence that was adduced before the High Court, evaluate, analyse and examine it afresh, and draw our own conclusions, of course bearing in mind that we did not see the witnesses testify, and therefore give due allowance for that. 4. At the hearing of the matter, the prosecution called six (6) Page 2 of 17

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witnesses. PW1, Charity Nchoro Kibwi (PW1), wife and mother Page 3 of 17

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to the two deceased persons testified that on the fateful day, she had attended a meeting at Thuuru Primary School and returned home at around 5.30 p.m. On her way home, she saw PW4. Peter Muriungi and PW2, Isaiah Nkunja carrying her daughter to the hospital. She said that she was prevented from seeing her daughter due to the severity of the injuries she had suffered. She went home and found that her husband had several cuts on his head. She entered the house, took a blanket, covered him and put him on a wheelbarrow and left with one PW3, Zakayo Kabulia. On their way, she got a vehicle which she used to ferry her husband to Maua Hospital where he was pronounced dead. While at the hospital she saw her daughter with her head covered and noted she had injuries on her forehead and the head generally. She confirmed that she did not see who attacked her husband and her daughter, but stated that she was informed that the appellant was the one responsible. The appellant was their neighbour, who disappeared soon after the incident. 5. PW2, testified that on the fateful day at around 5.30 p.m. while at his home, he heard screams from the village and rushed towards the screams which led him to the home of the appellant. The appellant’s wife, Janet Karimi, told him that the appellant had cut the deceased persons. PW2 asked where the appellant was and Janet told him that he had escaped towards the main road. PW2 stated that when he Page 4 of 17

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looked towards the main road, he saw the appellant at a distance of about 10 Page 5 of 17

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metres from him. He was carrying a panga which had blood stains. He picked a stone for his protection and went to the home of the deceased persons. At the end of the shamba, he found both deceased who were bleeding from their heads. He carried the deceased daughter to Maua Methodist accompanied by PW3. She was then still alive. 6. PW3 testified he was in his shamba when he suddenly heard screams coming from the appellant’s home. He heard the appellant’s mother, Ciomutumia, screaming saying that the appellant’s child was dead. He also heard the appellant’s wife saying that the appellant had killed Karimi and Kibwi. Shortly later he saw the appellant running down the road carrying a knife. 7. PW4 was in a Parents’ Meeting at Thuuru Primary School. While coming from the meeting, he heard screams coming from Kibwi’s home. He went to that homestead and did not find anyone. However, at the shamba, he saw both deceased persons with cuts on their heads. They were not talking. He did not see who cut them. Accompanied by PW2 who came in answer to the screams and one, Kaunyangi, they took the two to hospital. He said that the deceased Kibwi died on the way to hospital. He also testified that earlier, he saw the appellant with a long panga which had a stick handle. 8. PW5 PC Bernard Kaguru, attached at Maua Police Station, in crime duties, recalled that on that fateful day at around 8.30 Page 6 of 17

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p.m., when on duty, he received a report from PW1 that on the same day at around 6.00 p.m. she arrived at home and found her husband and daughter seriously injured by the appellant, who was a neighbour. Further, Kibwi had died on arrival at the hospital, and their daughter was in critical condition. He left for Maua Methodist Hospital and confirmed that Kibwi was dead and Jacinta was admitted. He returned to the station and, together with CPL Wamalwa and 2 other officers, went to the village, led by PW1, in an attempt to arrest the appellant. They were not able to find the appellant because he had disappeared from the village. He was arrested one month after the incident. While at the scene, he noted that there was blood all over the shamba where the deceased persons had fallen after the attack. 9. On 1st April, 2003 PW5 accompanied PW1 for postmortem at Maua Methodist Hospital. Dr. Omino Sarah performed the post mortem and filled the Post Mortem Reports, P. Exh. 1 and 2. Later on 20th April, 2003, the appellant was brought to the station by the Assistant Chief, who said t he had arrested him in Laare Division. 10. PW6 was Dr. Wachira Maina, a Medical Officer at Maua Methodist Hospital. He produced the postmortem report conducted on the deceased Kibwi by Dr. Sarah and the one conducted on the deceased Jacinta by Dr. Jean Machoyo. The cause of death for the two deceased was deep penetrating Page 7 of 17

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cut Page 8 of 17

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wounds to the head with brain matter protruding from the cuts, and severe hemorrhage. 11. The appellant was placed on his defence but opted to keep quiet and not say anything. 12. In the judgment of the trial court delivered on 2nd August, 2006, Lenaola, J. (as he was then) found that the irresistible conclusion from all the circumstances tendered in evidence led to the inevitable conclusion that the case against the appellant had been proved beyond a reasonable doubt. He therefore found the appellant guilty of both counts of the murder of Peter Kibwi and Jacinta Karimi, respectively. He sentenced him to death as the only known sentence upon such conviction at the time. 13. Aggrieved and dissatisfied with the said judgment, the appellant preferred an appeal to this Court and faulted the learned judge of failing: to note that the prosecution evidence had a lot of contradictions; to analyze the evidence adduced properly; to note that the appellant had a right to life under Article 26(1) of the Constitution; and, for rejecting his defence without giving cogent reasons in spite of the same being credible. 14. We heard the appeal on the 27th February, 2025 through this Court’s virtual platform. Present for the appellant was Ms. Otieno learned counsel holding brief for Mrs. Ntarangwe. Mr. Page 9 of 17

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Muriithi, learned prosecution counsel, was present for the respondent. Ms. Otieno relied entirely on the appellant’s written submissions dated 16th February, 2025, while Mr. Muriithi dated 26th February, 2025. 15. We have considered the record of appeal, the evidence adduced before the trial Judge, as well as the rival arguments in the submissions of both parties and the supplementary memorandum of appeal. Having done so, we find that the issues that fall for our determination are: whether there was sufficient evidence to sustain the conviction; whether the learned Judge erred in relying on evidence of hostile witnesses; and whether the sentence meted out by the trial Judge was in contravention of the Constitution. 16. We shall consider the issue of sufficiency of evidence to found a conviction together with the issue of whether the trial Judge erred in relying on the evidence of PW3 and PW4. 17. The appellant faulted the Judge for relying on the evidence of PW3 and PW4 as corroboration to the evidence of PW2, urging that since they were declared hostile, their evidence was not reliable. It was contended that the wife of the appellant was not called as a witness, and therefore, what she told PW2, and what PW3 and PW4 said that they heard her saying that it was the appellant who attacked both deceased, should not have been considered. Page 10 of 17

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18. The respondent submitted that the prosecution adduced sufficient circumstantial evidence that irresistibly pointed at the appellant as the one who murdered both deceased. He urged that it was strong evidence, reliable and safe to found a conviction for the offences charged. Counsel relied on the case of Ahmed Abolfathi Mohammed & Another vs. Republic 2018 eKLR for the proposition that circumstantial evidence can form a strong basis for conviction of an accused person, just like direct evidence. 19. The trial Judge was clear that there was no eyewitness evidence in the case. That, however, there was circumstantial evidence comprising the evidence of PW2, PW3 and PW4, who each saw the appellant leaving the direction of his home carrying a weapon, and in the evidence of PW2, the weapon, a panga, was bloodstained. Then there was the evidence of PW2, who said he went to the home of the appellant, where the mother of the appellant was screaming, saying that the appellant’s child had died. PW2 then met with Jacinta, the wife of the appellant, who told him that the appellant had murdered the two deceased persons. At the same time, PW3 and PW4 who apparently also heard the screams said that they each heard Jacinta saying that the appellant had murdered the two deceased persons. 20. The trial Judge considered these evidence, and found that the findings of the doctors who conducted post mortem Page 11 of 17

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examination on the bodies of the deceased was consistent with the injuries that PW2, PW3 and PW4 said they saw on the bodies of the deceased soon after the attack. The Judge found that the blood stained weapon the three witnesses saw the appellant carrying as he ran from the scene soon after the attack on the two victims was capable of causing the kind of injuries the victims had suffered. The Judge took into consideration the above evidence, together with the evidence that the appellant’s wife was heard by PW2, PW3 and PW4 implicating her husband of causing both deaths soon after it happened, as strong circumstantial evidence. The Judge applied the principles on circumstantial evidence as set out in the case of Republic vs. Kipkering arap Koske & Another 16 EACA 135 [1948] and Kamau Karanja vs. Republic [1986] KLR 190 among others, and found that the circumstantial evidence, pointed irresistibly to the appellant as the one who caused the death of the deceased. He found the prosecution had proved the charges against the appellant beyond any reasonable doubt. The learned Judge dismissed the contention by the appellant that failure to produce the murder weapon was fatal, finding rather that the appellant, having been arrested one month after the incident, after going into hiding, had sufficient opportunity to dispose of the weapon. 21. The appellant, in his memorandum of appeal and in his Page 12 of 17

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submissions, contended that the evidence of PW3 and PW4 Page 13 of 17

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ought not to have been considered as both were declared hostile witnesses and thus their evidence could not be used to corroborate that of PW2 as the Judge found. He also contended that their evidence was full of contradictions and that the Judge failed to properly analyse the same. Lastly he claimed that his defence was rejected without any reasonable explanation being given; and that he too had a right to life as guaranteed under Article 26(1) of the Constitution. 22. We have analysed and evaluated afresh the evidence that was adduced before the High Court. The conviction against the appellant was based on circumstantial evidence as there was no eyewitness of the incident from among those who testified. The learned Judge relied on the evidence of PW3 and PW4, the first to reach the scene soon after the attack on both deceased. They met the appellant’s wife near the home, which neighboured the scene of attack, who informed them that it was the appellant who attacked the two. PW3 and PW4 also saw the appellant running from the scene carrying a panga. PW2 a neighbour of the appellant rushed to the appellant’s home where he met with the appellant’s wife who told him that the appellant had cut both deceased. He also saw the appellant carrying a blood stained panga leaving the scene of incident. 23. The appellant’s complaint is that the evidence of PW3 and PW4 was unreliable as both Page 14 of 17 were declared hostile

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witnesses. Page 15 of 17

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The State did not address this ground of appeal. In regards to this issue, we have subjected the evidence of the two witnesses to a fresh examination and thorough analyses. In his judgment the trial Judge noted that PW3 was declared a hostile witness, however, he made no such mention in regard to PW4. The record shows that PW3 and PW4 were declared hostile witnesses, and the reason given then was their reluctance to answer questions. They were cross examined by the prosecution and the defence. 24. On the issue of reliability of witnesses, we cite the celebrated case of this Court in the case of Ndungu Kimanyi vs. Republic [1979] KLR 283, where Madan, Miller & Potter, JJ.A. held: “The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.” 25. The test is whether either or both the witnesses declared hostile, PW3 and PW4, created an impression in the mind of the Court that they were not straightforward, or raise suspicion about their trustworthiness, or do or say something that indicates they were persons of doubtful integrity. Page 16 of 17

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26. Considering their evidence, PW4 was clear he had forgotten most of the evidence and upon cross examination, he admitted that the facts he gave in his statement to the police were correct. PW3 on his part said he remained in his shamba after hearing the appellant’s mother and wife screaming saying the appellant had cut up the two deceased. He said his statement was correct and denied being difficult to answer questions. From the evidence of these two witnesses, there was no demonstration that either of them lied or misled the police or the court. Certainly, the prosecution in cross examination did not put any question to either of them to show they were dishonest, or had lied or had contradicted what they had told the police during investigations. In his submissions, the prosecution did not ask the court to find them untrustworthy or unreliable, neither did the Judge come to any such conclusion. The witnesses explained their difficulty in answering questions put to them by the prosecution for reason they had forgotten the facts as per their statement. 27. We think that the witnesses, PW3 and PW4 were not given the opportunity to refresh their memory as prescribed under section 167 of the Evidence Act, a failure by the prosecution. Section 167 (1) and (2) provides as follows: “167.Refreshing memory by reference to contemporaneous writing. (1) A witness may, while under examination, refresh his memory by referring to any Page 17 of 17

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writing made by himself at the time of the transaction concerning Page 18 of 17

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which he is questioned, or made so soon afterwards that the court considers it likely that the transaction was at that time fresh in his memory. (2) A witness may, while under examination, refresh his memory by referring to any writing made by any other person and read by the witness within the time mentioned in subsection (1) of this section, if when he read it he knew it to be correct.” 28. On this issue, we find that the witnesses were credible and the court was right in relying on their testimony in support of the other evidence adduced by the prosecution. 29. The other ground raised by the appellant was that the evidence of witnesses was contradictory. He did not specify. The manner in which the Court deals with allegations of inconsistencies and contradictions in evidence of witnesses was explained by this Court in John Nyaga Njuki & Others vs. Republic [2002] eKLR where it was held that: “In certain criminal cases, particularly those which involve many witnesses, discrepancies are in many instances inevitable. But what is important is whether the discrepancies are of such a nature as would create a doubt as to the guilt of the accused. If so, then the prosecution would not have discharged the burden squarely on it to prove the case beyond any reasonable doubt. However, where discrepancies in the evidence do not affect an otherwise proved case against the accused, a court is entitled to overlook those discrepancies and proceed to convict the accused. The discrepancies in the evidence in the matter before us are in our view, of a minor nature Page 19 of 17

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considering the facts and circumstances of the case.” 30. As we have stated the appellant did not specify contradictions in evidence, neither were any raised in the trial before the High Court. Looking at the evidence, we do find some variations in regards to who took the deceased to hospital; for instance where PW1 stated that she found her daughter being carried to hospital by PW2 and one PW4, which PW2 confirmed. PW4 on his part said he took both deceased to hospital with others. PW1 on her part said she put her injured husband on a wheelbarrow with help of Kabulia and carried him to hospital. We consider the variations in the evidence of PW1 and PW2 on the one hand and PW4 on the other, minor in nature and which do not go to the root of the case, and therefore inconsequential to the prosecution case. 31. The appellant challenged the Judge of not considering his defence and giving no reasonable explanation for that failure. We have looked at the record and find it clear that the appellant chose to say nothing in defence. Therefore this ground has no merit and is dismissed. 32. Having analysed, evaluated and examined the entire evidence afresh, we are satisfied that the Judge came to the right conclusion, that the circumstantial evidence adduced by the prosecution met the requisite threshold, and that the Page 20 of 17

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conviction was safe. We find that the appeal against the conviction lacks merit and is dismissed. 33. On the sentence, the appellant urged that the sentence of death contravened the Constitution, citing Article 26(1) on right of life. Nothing more was said in that regard. We are aware of the progressive jurisprudence on the issues of mandatory sentences. On the mandatory death sentence in murder cases, the Supreme Court’s decision in Francis Karioko Muruatetu & Others vs. Republic (2017) eKLR, held: “Section 204 of the Penal Code deprives the Court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives the Courts of theirs legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. where a court listens to mitigating circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to accused persons under Article 25 of the Constitution; an absolute right.” 34. We note that the appellant was sentenced on 2 nd August, 2006 before the decision in Muruatetu & Others vs. Republic (supra). We do not see any notes on sentencing on the record. Nonetheless, in 2006, when this trial was concluded and judgment delivered, courts handled death sentences as mandatory sentences, thus it was felt that Page 21 of 17

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there was no need to make a formal ruling on sentence. That changed with the Page 22 of 17

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decision in Muruatetu & Others vs. Republic (supra). The appellant was sentenced to death in both counts. We are satisfied that in the circumstances, the appellant deserves a review of his sentence, in line with the decision in Muruatetu & Others vs. Republic (supra). 35. With the foregoing, and after considering the circumstances in which the offence took place, and the progressive jurisprudence that now gives the Court discretion to pass an appropriate sentence in murder cases after considering the requisite guiding principles on sentencing, we think that the appellant is deserving of exercise of discretion on sentencing. Accordingly, we are persuaded that we should interfere with the sentence imposed against the appellant, and vary it with a determinate term of imprisonment. 36. The appeal against the sentence of death imposed against the appellant by the trial court in 2006 is allowed and the sentence hereby set aside. We note that at the time of the appellant’s trial, bail and bond was not granted to persons facing capital and murder charges. Taking that into consideration, and the circumstances of the case, that he murdered a father and daughter in the most heinous manner; an execution carried out in broad daylight; the fact PW1, a wife and mother of the deceased had to help take them to hospital; and also the fact that she, and the neighbours saw the injuries inflicted on the deceased, was a most traumatizing Page 23 of 17

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experience for them. This was an aggravated offence. We think that the appellant should serve an imprisonment term of 40 years on each count. The sentences will run concurrently from the 20th August, 2003 which is the day he was arraigned before the High Court for plea taking. 37. The result of this appeal is that the appeal against conviction fails and is dismissed. The appeal against sentence is allowed. The death penalty on both counts is set aside and in substitution thereof, an imprisonment term of 40 years on each count is imposed. The prison terms will run concurrently. Dated and delivered at Nyeri this 25th day of September, 2026. S. ole KANTAI ………………….…………… JUDGE OF APPEAL J. LESIIT ………………….…………… JUDGE OF APPEAL ALI – ARONI ………………….…………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed Page 24 of 17

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DEPUTY REGISTRAR Page 25 of 17

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