Kabaya v Republic

4. The learned Judge of the High Court evaluated the evidence against the legal prerequisites for proof of the oence of murder. He found that the fact of death was conrmed through the postmortem report that was produced, the testimony of the deceased’s father who witnessed the postmortem and the evidence of the investigating ocer. As to the cause of death, the Judge found that the postmortem examination determined the cause of death as cardiopulmonary arrest resulting from a severe penetrating chest/stab wound and hypovolemic shock. 5. As to whether the deceased died because of unlawful act of the appellant, the learned Judge found the eyewitness identication reliable. He dismissed the appellant’s alibi as an afterthought which did not displace the succinct evidence of the prosecution, noting that the witnesses knew the appellant personally and had clearly recognized him at the scene using their torches. 6. As regards malice aforethought, the court held that this was established because the appellant used a dangerous weapon (a knife), targeted a vulnerable part of the body (the chest/back), and had a motive related to a prior business dispute. Furthermore, the appellant reportedly told a witness during the attack that he would "nish" the deceased. The learned trial Judge accordingly concluded that the prosecution had proved its case beyond reasonable doubt. 7. We heard the appeal on 20th April 2026. Learned counsel Mr. Tyson Mwendwa appeared for the appellant who was also present virtually from Meru Prison. Ms. Gacheru learned Principal Prosecution counsel appeared for the respondent. 8. Mr. Mwendwa urged the appeal based on a supplementary memorandum of appeal with two grounds of appeal. First, that the Judge erred by failing to note that the prosecution evidence “was inconsistent, contradicting and uncollaborating”. Secondly, that the Judge erred in failing to link the evidence of the investigating ocer and the missing murder weapon. In his written and oral submissions, counsel for the appellant urged that the testimony from the three main prosecution witnesses (PW1, PW2, and PW3) was too inconsistent to sustain a conviction. It was submitted that the incident occurred at night; that while PW1 and PW2 claimed to be present, PW3 testied that he was alone for two hours at the scene and did not see the other two witnesses; that furthermore, PW1 could only identify the appellant’s face but not his clothing, despite claiming to use a four-battery torch and the presence of nearby electricity. 9. As regards the murder weapon, counsel submitted that there was signicant disagreement regarding the weapon used; that while PW1 and PW2 testied it was a knife, PW3 described the weapon as a "long sword". As regards the number of attackers, it was urged that PW1 and PW2 claimed there were multiple people present with the deceased, while PW3 stated there was no one else at the scene except himself, the deceased, and the appellant. Additionally, the postmortem report revealed multiple stab wounds and bruises on dierent parts of the body and that those injuries could not have been inicted by a single person. 10. It was submitted further that the investigation was awed and failed to link the appellant to the crime; that while the murder occurred on 31st December 2011, the appellant was not arrested until 2013; that the investigating ocer (PW6) did not visit the scene until more than a year after the crime, by which time no exhibits could be recovered; that the original police le compiled by the initial investigator (PC Lucheli) went missing, and the prosecution failed to call PC Lucheli or the ocer who allegedly lost the le to testify and reiterated that no murder weapon was ever recovered or produced as an exhibit in court. 11. It was urged that the trial court overlooked crucial evidence from a defense witness (DW2), who testied that the appellant was in church at the time the murder took place; that the prosecution failed https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1720/eng@2026-09-25 2

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to prove malice aforethought beyond a reasonable doubt and the conviction should therefore be set aside. 12. Alternatively, it was urged that if the conviction is upheld, the sentence ought to be varied. 13. Opposing the appeal, counsel for the respondent in her written and oral submissions urged that the prosecution case was proved to the required standard; that the prosecution's evidence was credible and consistent and minor discrepancies in testimony, unless they are substantial to the main issues, do not invalidate a trial. 14. Regarding identication, counsel submitted that it was by recognition; that PW1 and PW2 personally knew the appellant and identied him at the scene using moonlight and torches and heard the deceased crying out begging the appellant not to kill him. It was urged that malice was established by the nature of the attack; that the appellant viciously stabbed the deceased twice in the chest/rib area, causing a collapsed lung and internal bleeding; and that such actions demonstrate a clear intent to cause death or grievous harm. 15. It was submitted that the alibi defence was properly rejected as an afterthought as no evidence was provided regarding the appellant’s whereabouts just before the attack, which occurred around the same time he claimed to be arriving at church. 16. Regarding the murder weapon, it was urged that there is no legal requirement to produce the murder weapon to secure a conviction. 17. As for the sentence, it was urged that the trial court properly exercised its discretion; that the 20 years is commensurate and should not be disturbed. Counsel for the respondent concluded by urging the Court to dismiss the appeal and uphold both the conviction and sentence. 18. We have considered the appeal and the rival submissions. The essence of the appellant’s grievance is that the prosecution did not prove its case to the required standard on account of the inconsistencies and contradictions in the prosecution evidence, and because the murder weapon was not produced. We are required, in a rst appeal such as this, to consider the evidence on record and make our own ndings keeping in mind that unlike the trial court, we did not have the opportunity and advantage of seeing and hearing the witnesses testify. As stated by the predecessor to this Court in the case of Okeno vs. Republic [1972] E.A 32, an appellant of a rst appeal is entitled to expect the evidence as a whole to be subjected to fresh and exhaustive examination and to the appellate court’s own decision on the evidence, and that the rst appellate court must weigh conicting evidence and draw its own conclusions. See also Joseph Kimani Njau vs. Republic [2014] KECA 229 (KLR). 19. The inconsistencies and contradictions complained of by the appellant are in relation to the testimonies of PW1, PW2 and PW3. John Mwiti (PW1) testied that at about 8.20 pm on 31st December 2011, he was on his way to see an in-law, Charles Mathengia (PW4), who lived about 2 kms from his home. Along the way from Maua to Kilalai Primary School, he heard noises. In his words: “ I heard screams by Jackson Mwirigi-deceased. He was saying don’t kill me. When I heard the screams I knew the deceased because he was the son of Charles Mathengia. I had known him and lived with him. He was born in 1989. I stopped near them. Ben and Kabaya (sic) and 2 others. I did not identify the other 2. They were about 10 meters from me. There was half-moon and I also had a torch-4 battery torch. I ashed at them. I ashed at the face of Bernard Kabaya. I talked to them and asked what the problem was. I ashed at him for about a minute.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1720/eng@2026-09-25 3

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20. He went on to say that that when he ashed the torch, he saw the appellant and another person holding the deceased; that the appellant had a knife; that appellant stated that he had a problem with the deceased over miraa and had looked for him for a long time; that he (PW1) told the appellant to stop so that they could talk, but the appellant refused and stabbed the deceased on the left side of the back, stressing that that he saw the appellant stab the deceased on the ribs; that he then started shouting and pleading with the appellant to stop stabbing the deceased, but the appellant said “he would nish him.” That, Maure (PW2) then arrived at the scene and he dispatched him to the home of PW4 to report that the deceased had been stabbed. He testied further that the deceased was also injured on the right side of the stomach; that later, when the father of the deceased got there, they took the deceased to Maua Methodist Hospital by a motor cycle at about 8.15 pm to 8.20 pm and while the deceased was being attended, they were informed that he had died. PW1 testied further that he saw the appellant at Kalalai a year after the event in 2013 and informed the father of the deceased. 21. PW2, Joseph Maure Kubai, testied that on 31st December 2011 at about 7.30 pm, he was walking home when he found people making noise along the Maua to Miori road and that the deceased was screaming and “had been caught by Kabaya;” that PW1 was telling the appellant to stop pulling the deceased; that: “ …it was at 8.00 pm. There was a little moonlight and I had a torch. I had a two-battery torch. I ashed a torch at his face for about 2 minutes. I told him to leave Mwirigi alone.” 22. PW2 stated further that the appellant held a knife in his hand and that the appellant “was with 2 others. They were 4 in total…”and that he knew the appellant and the deceased. He maintained that, “I saw Benard stab Mwirigi on the left side of the back” and that he shouted and “ran to call the deceased’s parents Charles Muthengia (PW4) and Nkirote.” He stated that on returning to the scene with the deceased’s father they found the deceased on the ground and saw “Bernard and another running away” and that they got a motorcycle and took the deceased to hospital. He was categorical in his testimony that he was present when the deceased was stabbed, that he found 4 people including PW1; that he “saw Bernard, Jackson, Mwiti and the one I do not know.” 23. PW3, Henry Muroki, testied that on 31st December 2011 “Bernard stabbed a boy Mwirigi, while on the road.” He stated that it was at 8.00 pm along Maua to Kiengu road that he saw “ Mwirigi being stabbed”; that he ashed his torch at “Kabaya’s face briey” for a short time as he feared being stabbed; that his torch had 3 batteries; that he saw him stab Mwirigi on the ribs; that he saw three people at the scene; that he was “alone for 2 hours, when [he] saw Bernard stab Mwirigi” and that he ran to inform Charles what had happened. He maintained that he knew the appellant before the incident; that they are from the same village while the deceased was a neighbour. 24. Evidently, all three witnesses were persons well known to the appellant and to the deceased. Their evidence is consistent that they witnessed the appellant stab the deceased. The discrepancy is about the number of people who were at the scene. Whereas PW3 stated there were 3 people, PW2 stated there were 4 people. PW1 on his part was not categorical whether there were 3 or 4 people. He is recorded to have said “Ben and Kabaya and 2 others. I did not identify the other 2.” It is not clear whether the reference to “Ben and Kabaya” referred to the appellant as one person or to two people or whether it is a typographical error. 25. There may well be inconsistencies regarding the number of people at the scene as narrated by those witnesses. What is clear is that they were all categorical that they saw the appellant stab the deceased. As https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1720/eng@2026-09-25 4

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this Court stated in the case of Philip Nzatu Watu vs. Republic (Criminal Appeal 29 of 2015) [2016] KECA 696 (KLR): “ …It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satised of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, diering fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satised beyond reasonable doubt”. 26. In eect, ultimately the court has to determine whether the inconsistencies and contradictions, if any, are minor, or whether they go to the root of the matter.” (See decision of the Court of Appeal of Tanzania in the case of Dickson Elia Nsamba Shapwata & Another v. The Republic, Criminal Application No. 92 of 2007). In the same vein, the Court in the case of Phillip Nzaka Watu vs. R (supra) eKLR, stated; “ However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed it has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and couching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.” 27. In the present case, the contradictions and inconsistencies complained of are minor and do not in our view go to the root of the matter. That ground of appeal fails. 28. The last issue is whether the oence of murder was proved to the required standard of proof. The prosecution was required to prove that a death occurred, that the death was due to an unlawful act or omission, that the unlawful act or omission was on the part of the appellant and that the unlawful act that resulted in the death was actuated by malice aforethought. See Shangasu vs. Republic (Criminal Appeal E042 of 2023) [2024] KECA 1223 (KLR). There is no dispute that the deceased died. As to the cause of death, the postmortem report produced by Dr. Njeru (PW5) who performed the postmortem established that the deceased died due to stab injury and hypovolemic shock. 29. As to who caused the unlawful act that resulted in the death of the deceased, there were the eyewitness accounts of PW1, PW2 and PW3 to which we have already referred. The appellant is a person well known to all of them. It was identication by recognition. PW1, PW2 and PW3 recognised the appellant as the person who stabbed the deceased. 30. Regarding the element of malice aforethought, Section 206 of the Penal Code provides that 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 of or to do grievous harm to any person, whether that person is the person actually killed or not; (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some persons. Whether that person is the person https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1720/eng@2026-09-25 5

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actually killed or not, although such knowledge is accompanied by indierence whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; (c) 31. an intent to commit a felony; (d) an intention by the act of omission to facilitate the ight or escape from custody of any person who has committed or attempted to commit a felony. In the case of Kathee alias Kabii vs. Republic (Criminal Appeal 13 of 2017) [2023] KECA 1043 (KLR) this Court re- armed the pronouncement by the predecessor to this Court in the case of Rex vs. Tubere s/o Ochen 1945 12 EACA 63 that: “ The duty of the court in determining whether malice aforethought has been established is to consider the nature of the weapon used, the manner in which it is used, the part of the body injured, the conduct of the accused before, during and after the attack.” 32. The Court stated that in eect, the nature of the injuries causing death, the gravity of the same and the weapon used are good indicators as to the appellant’s intention. PW5 described the injuries the deceased sustained as:- 2 stab wounds, one supercial, 2 cm long and one penetrating into chest 2.3 cm long. He formed the opinion that the cause of death was due to stab injury and hypovolemic shock. Given the part of the deceased’s body that was targeted coupled with the pronouncement by the appellant that he was to nish the deceased, malice aforethought was established. 33. As to the complaint that the murder weapon was not produced, we can do no better than to echo the words of the Court in the case of Kazungu Katana Ngoa vs. Republic [2017] KECA 129 (KLR) thus: “ (24) Lastly, on the failure by the prosecution to produce the murder weapon; the question to be answered is whether, that failure was fatal to the conviction. This Court has in the past had occasion to deal with the question and in Ekai v. Republic(1981) KLR 569; held that failure to produce the murder weapon of itself was not fatal to a conviction and that as long as the post mortem report had established beyond reasonable doubt the injury from which the deceased died, a conviction could still stand. Similarly, in Karani v. Republic (2010) 1 KLR 73; the court stated that: “ The oence as charged could have been proved even if the dangerous weapon was not produced as exhibit as indeed happens in several cases where the weapon is not recovered. So long as the court believes, on evidence before it, that such a weapon existed at the time of the oence, the court may still enter and has been entering conviction without the weapon being produced as exhibit.’” We respectfully agree. 34. All in all, the appeal is devoid of merit. It is accordingly dismissed. Orders accordingly. DATED AND DELIVERED AT MERU THIS 25TH DAY OF SEPTEMBER, 2026. S. GATEMBU KAIRU, (P), FCIArb, CArb. ………………….…………… https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1720/eng@2026-09-25 6

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JUDGE OF APPEAL H. I. ONG’UDI …………….….…………… JUDGE OF APPEAL MUNYAO SILA ……………….……………… JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1720/eng@2026-09-25 7

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