Mwaringa & another v Republic

appellants and the respondent, the two appeals were consolidated. Although the record of appeal was led in Appeal No. E002 of 2025, the oence arose from the same set of facts and, therefore, the single record of appeal was sucient for the Court’s reference. 4. As a background, the prosecution called a total of 17 witnesses. PW1 – PW15 testied before Nyakundi, J. On 6th October 2021 in compliance with Section 200 of the Criminal Procedure Code, the appellants agreed to proceed with the hearing from where it had reached before Githinji, J., who took over the conduct of the trial. 5. The events which led to the deceased’s demise are centred on the attempt to allegedly sell his camel at Boka open-air market. The deceased’s father, Hussein Omar (PW2), testied that, on 24th June 2018 between 7.00 a.m. - 8.00 a.m., he took a camel belonging to the deceased to sell it at the Boka Market in order to settle some debts. However, the deceased later withdrew instructions for the sale, and with the assistance of Ismael Isaac Shola (PW1), the administrator of ‘Soko la Mbuzi’ (Goat Market), they drove away the camel from the market to the deceased’s farm. 6. PW2 reported the issue to the appellants, who were on patrol within the market to the eect that he wanted them to assist him to get back the camel. The appellants were Administration Police Ocers, who followed the deceased while he (PW2) remained at the market, but that, after a few minutes later, he heard some gunshots; that he rushed to the scene where he found the deceased already dead; that the deceased had suered gunshot wounds to the head, leg and shoulder; and that he covered the body with a sheet. 7. PW1, who was with the deceased, testied that the appellants followed them and insisted that they return the camel; that, when the deceased declined, the 1st appellant shot in their direction, but in the air; that the second gun shot by the 1st appellant hit the deceased on one of his legs and he sat on the ground; that the next gun shot hit the deceased at the shoulder; that a third one followed and hit him in the stomach; that the 2nd appellant then approached the ground where the deceased lay and shot at him, aiming at the head; that PW1 stepped aside with his hands up, and beseeching the appellants not to continue shooting; and that, apart from seeing what the appellants did, he was able to identify them as he had worked in the area (Bora) for about two months. 8. PW3, Abdi Hassan Omar, the son to PW2 and brother to the deceased, testied that PW2 asked him to report to the police that the deceased had taken the camel from him; that PW2 also told him that the deceased did not want his camel to be sold, and that he wanted it returned home; that, in obedience to the instructions by PW2, he booked the report with a request that the deceased should be arrested; that the two police ocers whom he reported to were the appellants, who pursued the deceased; that he did not see the deceased drive away the camel until after he heard gunshots; that he headed towards the direction from where the gunshots came, whereupon he found the deceased having suered injuries to the leg, head and shoulder; that there were many people at the scene; and that he knew the appellants before the incident. 9. PW4, Salat Ali Bande, witnessed the dispute between the deceased and PW2 over sale of the camel. He followed the appellants who were about 10 metres ahead of him. He stated that he saw the deceased alone with the camel; that he witnessed the 1st and 2nd gunshots being red by the 1st appellant; and that he also witnessed the 2nd appellant shoot the deceased on the head before he fell down and died instantly. 10. PW5, Mohammed Guhaha Adan, a boda boda operator, testied that he met the appellants on the morning of 26th June 2018, and that they exchanged greetings; that he was later on informed of the deceased’s death; that he rushed to the scene and saw the deceased’s body with injuries on the ribs and https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1834/eng@2026-09-25 2

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the head; and that the body was moved to Garissa Referral Hospital. He further testied that the OCS had recorded that the deceased stabbed the police with a knife, but that he did not see any knife. 11. PW6, Dr. Kassim Duale, a medical ocer, produced into evidence the post mortem report on the deceased. He observed that the deceased’s body was in rigamortis condition; that it had degutting injury of the skull, laceration close to the eye; and that the abdomen was oozing blood. He concluded that the cause of the injuries were gunshots. 12. PW7, Aden Ibrahim Aden, was at the market when he heard about a victim of gunshots by a police ocer; and that the 1st appellant was injured; that he had earlier seen the appellants providing security at the market; that the 1st appellant was injured; and that he used his vehicle to take the appellants to Boka Police Station. 13. PW8, Daniel Aden Omar Aden testied that, on the material day, he was at the market; that he saw PW2 bring a camel to the market, but that, later, the deceased asked him not to sell it; that the deceased started to drive away the camel; that he saw the appellants going after the deceased and the camel; that he then heard gunshots and rushed to the scene; and that he found the deceased having sustained fatal injuries. 14. PW9, Ibrahim Mohamed Adan, a business man who resided at Boka, heard gunshots from his home and he saw people running to the scene; that he went to the scene and found the deceased dead; and that he collected six spent cartridges and handed four of them to the Independent Police Oversight Authority (IPOA) ocers and 2 of them to the Criminal Investigation Department (CID). 15. PW10, PC Abdulrizak Mohammed attached to PTC Garissa, received a phone call informing him that the deceased, his cousin, had been shot. In the company of his mother and an uncle, they went to Garissa Provincial General Hospital mortuary to witness the post mortem examination; that they witnessed the exercise; and that, thereafter, the body was released for burial. 16. PW11, Aden Gedi, a taxi driver, testied that he met one Maliud who handed him a paperbag which had something inside; that he was instructed to take it to one Halima; and that he did not know the contents of the bag. 17. PW12, Halima Rogo, was given a parcel which had two spent cartridges of ammunitions and a magazine; that she handed them to PW10, and that they took them to Bangale Police Station; that it was suspected that the ammunition and the magazine were from a weapon that may have been used against a person; that she made a report in the rearm register; and that, among the items handed over to her was a G3 rie of the 2nd appellant whom she identied in court. 18. PW13, Sgt Adan Mohamed based at Tana Delta and formerly in Bangale, recalled that, on 26th June 2018, in the company of other ocers, he went to Boka Patrol Base where they retrieved two rearms from the appellants; that rearm identity No. 66xxxx9 was issued to the 2nd appellant; and that it had 8 rounds of ammunition. 19. PW14, CLP Kenneth Choma was a DCI ocer from DCI Headquarters, Forensic Department Ballistic Section, whose work involved identication and examination of: rearms ammunition; component parts; research and observation of rearms; observation and examination of scene incidents where rearms have been used; and restoration of rearm serial numbers on alternated rearms. 20. He testied that, on 2nd August 2018, he received four rearm cartridges marked as Exhibit (IPOA GSA A1 (IPOA) GSA – A4) from Francis Kieti, an investigator from IPOA. He was instructed to inspect and prepare a report of whether they were red from G3 rearms S/No. 66xxxx9 and S/No. 69xxxx1; that, on 9th August 2018, he received a second set of exhibits containing two G3 ries S/No. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1834/eng@2026-09-25 3

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66xxxx9 (Exhibit A) and S/No. 69xxxx1 (Exhibit B), two magazines (Exhibit B and E), 25 rounds of ammunitions (Exhibit C1 to C8 and F1 to F- 17) and two red cartridge cases (Exhibit G1 and G2) from PC Malik Oduor; that he was required to ascertain the calibre of the ammunitions, and whether the 2 cartridges were red from the two rearm; that he red three rounds from each rearm, and 25 others in the respective rie; that his ndings were that the two ries were G3 in type, and that they were in good working order; that each had a capacity of 20 rounds of ammunitions in calibre 7.62 x 51mm; and that the set of six spent cartridges were red from the G3 rie S/No. 66xxxx9 (Exhibit A). He produced into evidence the ballistic report as well as the exhibit memo form. 21. PW15, Hassan Yusuf Salat, a livestock keeper, recalled that he was at the market on the material date. He recalled hearing the altercation which took place between the deceased and PW2 on the sale of the subject camel; that PW2 went to report the issue to police ocers and, as a consequence, the appellants followed the deceased; that, when the appellants tried to catch up with the deceased, he drove away the camel at a high speed; that, as the appellants chased the deceased, and also threw stones at him, but the he continued to drive away the camel; that they red in the air whereupon; the 2nd appellant aimed directly at the deceased and shot him in the leg and stomach; that the 2nd appellant told the 1st appellant to nish the deceased, and the 1st appellant accordingly shot at him on the head; that he (PW15) pleaded with the 2nd appellant not to nish the deceased; and that he knew the 1st appellant by the name Rachi. 22. PW16, C.I. Leonard Naibei, the former OCS, Bangale Police Station, testied that, on the material day, he received a call from the 1st appellant who informed him that they were in danger, and that they needed reinforcement at Boka Police Patrol Base; that the appellants informed him that they had shot at a person, and that they were under attack from members of the public; that he then assembled police ocers who were in the police station, among them Cpl. Njiru and Sgt Andoo; that, before reaching the patrol base, they detoured to Boka Dispensary where they found the appellants being treated; that they moved the appellants to Garissa Hospital; that they then visited the scene where they found the deceased’s body, which they took to Garissa Mortuary for post-mortem examination after which it was released to the family for burial. 23. PW16 went on to testify that that they took two ries from the appellants, being S/No. 69xxx3 with 37 rounds of ammunition from the 1st appellant and rie S/No. 66xxxx9 with 8 rounds of ammunition from the 2nd appellant; that he also recovered a Somali sword which was allegedly used to stab the 2nd appellant, and that this is what prompted the 1st appellant to re shots in self-defence; and that he handed over the recovered items to the DCI for investigation. PW16 also identied a rearm register, which indicated that the 1st appellant was issued with his rearm on 2nd June 2018, and that it then had 40 rounds of ammunitions; and that the duty roster conrmed that the appellants were on ocial duty on the fateful day. 24. PW17, No. IPOA 00xx5 Tubaka Lybia, a Senior investigating ocer at Independent Police Oversight Authority (IPOA) was the lead investigator. He testied that, on 24th August 2018, he received a phone call from one Abdirahi, a resident of Boka, who informed him that the deceased had been shot dead by police ocers; that he proceeded to Garissa Hospital with two colleagues where they attended the post-mortem examination; that he observed that the deceased had injuries on the right leg, abdomen, head skull, and that the brain was oozing; that all injuries were as a result of gunshots; that he visited the scene whereupon he drew a sketch plan of the scene; and that he also recovered four spent cartridges from one Ibrahim Mohammed, which he handed over to the DCI for investigations. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1834/eng@2026-09-25 4

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25. In the opinion of PW17, the force used by the appellants against the deceased in the circumstances of the case was unjustied and, as a result, he recommended that the appellants be charged with murder. He testied that it is only the appellants who mentioned the knife and that, indeed, he did not recover any; and that, when he asked for it’s production, it was not given to him. 26. At the close of the prosecution’s case, the trial Judge ruled that both appellants had a case to answer and accordingly put them on their defence. 27. The 1st appellant, who testied as DW1, gave a sworn testimony and stated that, on the material day, which was a market day, together with the 2nd appellant, they were booked in at the Boka Police Post; that they were going for patrol duties; that, while at the market on patrol, PW2 reported to them that his camel had been stolen, and that PW2 led them to Kora Park Forest where they caught up with the deceased; that, when they tried to stop the deceased, he picked up stones which he threw at them; that the deceased also took a club and hit him on the forehead as a result of which he lost consciousness; that, when he came to, he saw the deceased holding a knife with an intent to stab the 2nd appellant, and that that is when he shot the deceased in the head and he fell down; that the knife the deceased held fell at his side; that he then called the OCS, who arrived at the scene; and that he was taken to hospital. 28. DW2, the 2nd appellant, also gave a sworn testimony and conrmed the events as narrated by the 1st appellant to the eect that they tried to arrest the deceased on allegations that he had stolen some camels. On how the deceased met his demise, he testied that the deceased was pelting stones at them; that he shot in the air, but that this did not stop the deceased from pelting stones at them; that he was hit by a stone on his knees, toes and belly after which he fell down; that, when the 1st appellant tried to get near him, he was hit with a club on the head; that the 1st appellant fell down unconscious; that he shot three times to stop the assailants from reaching for the 1st appellant’s rearm; that he pushed the 1st appellant about 30 meters from the scene; that the deceased was joined by another person from the thicket while another was driving the camel away; that he fell on a big stone; that the deceased advanced towards him, and that he saw him draw a knife from his waist and tried to stab him; that he then shouted at the 1st appellant telling him that he was dying; and that that is when he saw the deceased falling down. 29. DW2 further testied that, after the deceased fell down, he heard people saying that he (the deceased) had been killed; that, by then, the 1st appellant was bleeding from his face; that they then left for the market where they sought assistance from government ocials to take the 1st appellant to hospital; that the 1st appellant was treated at Boka Dispensary from where he was referred to Garrisa Hospital; that he was also treated; and that their injuries were assessed as ‘harm’; that they raised the OCS whom they briefed, who later visited the scene. According to the 2nd appellant, other than the deceased, they were attacked by two other persons. 30. DW3, Nicholas Koech, a Clinical Ocer at the Garissa County Referral Hospital, testied that he examined the appellants on 26th June 2018 on allegations that they were assaulted. He testied that the 1st appellant alleged that he was assaulted by a person known to him as he tried to arrest him while on duty; that he had blood stained clothes, cut wound on the forehead, which was stitched, bruises on the knees and lower thigh of the left limb; that the age of the injuries was approximately 3 days; that he assessed them as grievous harm; and that the weapon used was a blunt object. 31. As for the 2nd appellant, DW3 testied that he had a swelling on the left side of the back, which was swollen and tender; that the injury was about 3 days old; and that the probable cause of injury was a blunt object. DW3 produced the P3 forms in respect of both appellants as DEXH1 and DEXH2 respectively. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1834/eng@2026-09-25 5

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32. In his Judgment, the learned Judge considered the question as to whether the appellants jointly murdered the deceased, and held that the appellants did not deny that they red shots when the deceased allegedly deed their order to return the camels, but that, instead, he hurled stones at them; that, at least six spent cartridge cases were recovered from the scene; that the deceased had gunshot wounds on the right leg, abdomen, skull and shoulder; and that the evidence indicated that the shot that hit the deceased on the head came last, and that it was the one which killed him instantly. 33. The trial court rejected the appellants’ evidence that the deceased hurled stones at them since it was unrealistic that, after the rst shot on the leg, the deceased would still have been determined to ght the appellants who were armed with guns. The learned Judge further rejected the evidence that there were stones at the scene since none were seen by PW17 and other police ocers who went to the scene for collection of evidence and photography; and that the same case applied to the allegations that the deceased stabbed the 1st appellant with a knife. The learned Judge further cast doubt on the ability of the deceased to have inicted the injuries on the appellants in the circumstances, and opined that they must have been injured by the angry crowd. Consequently, the appellants’ defence of self–defence was rejected. 34. The learned Judge further held that nothing prevented the appellants from walking away from the scene and allowing the deceased to drive his camels home; that the force used by the appellants as compared to the danger they allegedly faced, was far below the measure of force they used on a person who was just hurling stones at them; and that, accordingly, the force used against the deceased was unjustiable. 35. The learned Judge further held that it mattered not who shot the fatal bullet which killed the deceased; that the fact was that both appellants were culpable; that the appellants had malice aforethought given the manner in which they used their weapons, which aimed at either causing grievous harm or death to the deceased, a fact that was within their knowledge. 36. Ultimately, the appellants were found guilty of the oence of murder and convicted accordingly and sentenced to serve ten years imprisonment. 37. The appellants were dissatised with both conviction and sentence, as a result of which they proered the instant appeal. In a join Memorandum of Appeal dated 24th May 2024, they advanced 16 grounds of appeal, which we have summarised into 9 grounds, namely that the learned Judge erred in law and in fact: i. in nding that the appellants were guilty of the oence of murder contrary to Section 203 as read with Section 204 of the Penal Code; ii. by concluding that the appellants knew the relationship between the deceased and PW2, who reported the alleged theft of the camels without putting into consideration that there was language barrier since PW2 had diculty in speaking Kiswahili. The phrase ‘Ngamia Mwizi Saidia’ does not indicate that PW2 was referring to his son; iii. in failing to consider what amounted to ‘excessive force’ in that the deceased was warned by the appellants to return the camels, but that he kept coming towards them; iv. in considering the evidence by IPOA that there were no stones at the scene, but ignoring the evidence of PW1 that the deceased was throwing stones at the appellants; v. in failing to consider that the cartridge which killed the deceased when shot at his head was not mentioned at the autopsy and neither was it produced in court; https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1834/eng@2026-09-25 6

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vi. in failing to consider the evidence of the doctor who treated them; vii. in nding that there was no knife at the scene, and yet it was produced in court; viii. in failing to consider the pre-sentencing report produced by the Probation Ocer while sentencing the appellants; and ix. that the appellants did not have representation after the defence hearing contrary to Article 50 (2) (h) of the Constitution. 38. We heard this appeal on 4th February 2026. Learned counsel Ms. Kwarikwar, holding brief for Mr. Achach, appeared for the appellants while learned Assistant Director of Public Prosecutions, Ms. Mutua, appeared for the respondent. 39. Ms. Kwarikwar highlighted the joint appellant’s submissions dated 15th April 2025. Counsel isolated two issues for determination, namely whether the oence of murder was proved beyond reasonable doubt; and the propriety of the sentence meted out on the appellants. 40. On proof of the oence charged, counsel faulted the learned Judge for holding that the appellants used excessive force against the deceased; that the circumstances which faced the appellants, being that their lives were threatened warranted the use such force; that Part B of the Sixth Schedule to the National Police Service Act, Cap. 84 on the guidelines on the use of rearms, allows a police ocer to use a rearm to save or protect the life of the ocer or other persons, and also for purposes of defending themselves or another person; and that the appellants used their rearms while trying to protect their lives and defend themselves. 41. The appellants cited the High Court decision in Republic vs. Peter Wanjala Masa (2020) KEHC 5025 (KLR) which cited with approval the English decision of the Privy Council in Palmer vs. Republic (1971) 1 ALL ER; the English decisions in Shaw vs. Republic (1952) HCA CLR 356 as cited in the High Court decision of Republic vs. Ismail Hussein Ibrahim (2018) KEHC 4614 (KLR); and Beck Ford vs. Republic (1987) 3 ALL ER, for the proposition that reasonable force to resist an attack where a person thinks that his or her life is in danger is justiable; that, if, in using such force, the person kills his assassin, then he or she cannot be found guilty of any crime even if the killing was intentional; and that, given that the appellants killed the deceased at a time when their lives were in danger, then it cannot be said that they had malice aforethought. 42. It was submitted that the evidence of the IPOA investigating ocer (PW17) contradicted the testimonies of PW1 and PW15, who asserted that there were stones which were found at the scene of the crime. Counsel contended that it was erroneous for the trial Judge to ignore this evidence and solely rely on the report given by the IPOA ocer. In the same vein, counsel faulted the decision of the trial Judge that the deceased did not have a knife at the scene of the crime, yet, according to counsel, the same was produced by the prosecution in its evidence as Exhibit No. 7. 43. The appellants contended that the learned Judge failed to consider how the cartridges were handled, yet some were missing; that not all spent cartridges were produced in court by the prosecution, more so the one which allegedly killed the deceased; that it is only some of the cartridges red from the 2nd appellant’s gun were produced into evidence; and that this omission ought to have cast doubt in the mind of the trial court on the culpability of the appellants. 44. The appellants faulted the prosecution’s case which, it was submitted, was laced with contradictory witness testimonies. According to the appellants, PW1 testied that he was with the deceased when the incident occurred; that PW4 and PW15 also gave testimonies similar to that of PW1, but that none https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1834/eng@2026-09-25 7

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stated that they were together at the scene; that it was therefore questionable how they gave similar testimonies , and yet none candidly stated that he saw the other at the scene; and that it was an error on the part of the learned Judge not to take account of such glaring contradictions. 45. The appellants submitted that the evidence adduced in court varied from the content in the witness statements that they were supplied with; that this contravened Article 50(2) (j) of the Constitution, which provides that they ought to have been supplied in advance with the evidence that the prosecution intended to adduce so as to enable them prepare for their defences. 46. It was further submitted that there was language barrier between the appellants and PW2, the latter being the one who informed the appellants about the driving away of the camel; that PW2 was not uent in either English or Kiswahili languages while, on the other hand, the appellants were not uent in the Somali language; that PW2 approached them stating ‘Mwizi Ngamia Saidia’, which when directly translated means ‘a camel thief, help’; which the appellants interpreted to mean that PW2’s camel had been stolen, and that he needed their assistance; that the appellants approached the deceased thinking that he was the thief, only to later understand the deceased’s relationship with PW2; that, therefore, there was no premeditation to kill the deceased; and that the appellants ought to have been found guilty of the oence of manslaughter. 47. On the issue of sentence, it was submitted that the appellants were performing their ocial duty; and that, therefore, a sentence of 10 years imprisonment was harsh and excessive in the circumstances, and ought to be set aside. 48. On behalf of the respondent, Ms. Mutua highlighted the written submissions dated 29th June 2026. While restating the grounds of appeal advanced by the appellants, counsel simply conceded that the appellants ought to have been found guilty of manslaughter as opposed to murder; and that, for this reason, there was no need to respond to each of the grounds of appeal. 49. On sentence, counsel, in her oral submissions, stated that the 10 years’ imprisonment meted out against the appellants was lenient because Section 205 of the Penal Code, which provides for the oence of manslaughter, stipulates that the oence of manslaughter carries a life sentence. We were thus urged to uphold the sentence. 50. This being a rst appeal, issues of fact as well as issues of law fall for consideration. In addition, Rule 31(1) (a) of this Court’s Rules, 2022 requires us to subject the evidence adduced before the trial court to fresh and exhaustive examination but, in so doing, bear in mind that we neither saw nor heard the evidence of the prosecution’s witnesses for which we should give due allowance. In that regard, we can only be guided by the impressions made by the trial Judge who had the opportunity to see and hear the witnesses. Finally, we are also reminded that it would not be sucient for us to merely scrutinize the evidence to see if there was some evidence to support the trial court’s ndings and conviction. This duty was well articulated by this Court in Erick Otieno Arum vs. Republic (2006) (KECA) 385 (KLR) as follows: “ It is now well settled, that a trial court has the duty to carefully examine and analyse the evidence adduced in a case before it and come to a conclusion only based on the evidence adduced and as analyzed. This is a duty no court should run away from or play down. In the same way, a court hearing a rst appeal (i.e.) a rst appellate court also has a duty imposed on it by law to carefully examine and analyse afresh the evidence on record and come to its own conclusion on the same but always observing that the trial court had the advantage of seeing the witnesses and observing their demeanour and so the rst appellate court would give allowance for the same.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1834/eng@2026-09-25 8

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51. Further, in Andole vs. Republic (2025) KECA 795 (KLR), this Court held that: “ Trial courts are considered the nders of fact, and, therefore, their ndings are given a high degree of deference by the appellate courts. On appeal, the appellate court will only overturn a conclusion of fact if the trier of fact’s decision was clearly erroneous.” 52. 53. We have considered the record of appeal, the respective parties’ submissions and the law. In our view, the issues that commend themselves for determination are: i. Whether the oence of murder by proof of malice aforethought was established. ii. Whether the sentence imposed on the appellants was proper. In order to prove the oence of murder, the ingredients which the prosecution has to prove are: the fact of the death of the deceased and the cause of the death; whether the accused person(s) was involved in the death of the deceased by omission or commission of an unlawful act; and that the accused person(s) had the requisite intention (malice aforethought) to cause the death of the deceased. The ingredients of the charge of murder were highlighted by this Court in the case of Roba Galma Wario vs. Republic (2015) KECA 521 (KLR) thus: “ For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant; and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional.” 54. The facts surrounding the death and the cause of the death of the deceased are not in dispute. A post mortem report dated 24th June 2018 concluded that the deceased died, and that the cause of his death was traumatic brain injury due to a gunshot. Thus, we nd that the prosecution proved this ingredient. It is also factual that the fatal bullet was red from the 2nd appellant’s rie, and that the 2nd appellant was at the time in the company of the 1st appellant on ocial patrol duties. What then remains to be determined is whether the appellants had had malice aforethought. 55. The genesis of the events which led to the deceased’s demise is largely undisputed. A dierence occurred between the deceased and PW2, the deceased’s father, over the sale of a camel at the Boka open-air market on 24th June 2018. PW2 wanted to sell the camel to settle his debts, but it later turned out that the camel belonged to the deceased, and that the sale was taking place without his consent. It is undeniable that the appellants were on patrol on 24th June 2018, a market day at the Boka open-air market. It is also a fact that the appellants were lawfully armed with G3 Ries. 56. The appellants stated that they pursued the deceased after PW2 complained to them that his camel had been stolen. In their defence, the appellants complained that there was language barrier between them and PW2 as they did not understand whom they were supposed to pursue. With regard to the ownership of the camel and the report made, PW2 testied in chief that: “ I took one camel to the market. It belonged to the deceased. He is my son. The deceased withdrew instructions for the same because it was a good breed. The deceased drove away the camel back to the farm. I waited and saw police ocers behind me. I told the police ocers to assist me in bringing back the camel from my son.’’ https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1834/eng@2026-09-25 9

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57. As for the evidence of the appellants on how the report was made to them, the 1st appellant testied: “ …While there a man came. He told us his camel was stolen. He was a Somali. He could not understand Swahili very well. He led us to Kora Park Forest.’’ While the 2nd appellant testied: “ …At about 8.00 a.m. an old man came. He was a Somali. He told us to help him as a thief had stolen his camels. He pointed at the direction the thief had taken.’’ 58. The verbatim words stated in the appellants’ grounds of appeal as having been used by PW2 to them were ‘Ngamia Mwizi Saidia’, meaning ‘a camel thief, help’, which were introduced for the rst time in this appeal. This means that the trial court did not have the opportunity to interrogate this line of defence. The appellants now argue that the language barrier gave them the impression that they were dealing with a thief when they confronted the deceased. Whatever the case, it is immaterial whether the deceased was being pursued as PW2’s son or as a thief. The law does not provide for preferential treatment to persons being sought after by law enforcement ocers. The bottom line is whether the deceased herein was killed intentionally or unintentionally, and with malice aforethought on the part of the appellants. 59. There is no dispute that both appellants shot at the deceased. There were six spent cartridges collected from the scene. Regarding how each of the appellants shot at the deceased, the 1st appellant testied: “ …I shot one bullet in the air and warned him to stop throwing stones at us…I saw the assailant on my colleague on the ground. He was holding a knife set to stab him. I shot at him and he fell down.’’ While the 2nd appellant testied: “ I shot in the air to warn him…I shot in the air about 3 shots to prevent the assailants from reaching my colleague’s rearm…He was shot on the left side of the leg.” 60. The forensic report produced by PW14 conrmed, without a doubt, that the six spent cartridges were red from G3 Rie S/No. 66xxxx9 (Exhibit A), which was assigned to the 2nd appellant. The appellants stated that the deceased was throwing stones at them, and that he also threatened to stab the 1st appellant with a knife; and that this compelled them to re at the deceased in self- defence. 61. As to the possibility of stones being at the scene of crime, we shall give it the benet of doubt. PW1 testied that the deceased picked a stone and threw it at the appellants. We also agree that there was a club used to hit the appellants since PW1, on cross examination, testied that the deceased had a piece of wood. Furthermore, the P3 forms produced after treatment of the appellants conrmed that the 1st appellant suered injuries commensurate with a person attacked with stones and a club and/or wood. 62. As to the allegations that there was a knife, PW1 denied that allegation. PW17 also testied that none was found at the scene. It is thus clear that the deceased was not armed with a knife when he was confronted by the appellants. 63. From the above chronology of events, what we then have to grapple with is whether the appellants shot the deceased in self- defence. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1834/eng@2026-09-25 10

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64. Section 17 of the Penal Code provides for the defence of self- defence as follows: Subject to any express provisions in this Code or any other law in operation in Kenya, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English Common Law. 65. It is patently clear that the application of the defence of self- defence is as provided in common law principles. In I.P. Veronica KECA 787 (KLR), this Court pronounced itself on the relevance of the principles of self- defence under the common law vis a vis the current law under the National Police Service Act, Cap. 84 as follows: “ In our view in light of the above express provisions of the National Police Service Act regarding use of force and rearms by the police in self - defence, there is no room for invoking section 17 of the Penal Code and applying the principles of the Common Law on self - defence. The provisions of the Act are a complete and exhaustive code and demand that a police ocer must resort to non- violent means as the rst option and to use force only when non-violent means are ineective. In addition, even where the use of force is justied, the ocer does not have a carte blanche in the use of force. The Act demands that the force used must be proportional to the objective to be achieved, the seriousness of the oence and the level of resistance, and still, only to the extent necessary. When it comes to use of rearms, the Act makes that a last resort option.’’ 66. The National Police Service Act and, in particular, Sections 49(5) and 61 as read with the Sixth Schedule, sets out the circumstances under which a police ocer may resort to use of force and rearm in selfdefence. Part A of the Sixth Schedule provides for use of force by the police in the following terms: 1. A police ocer shall always attempt to use non- violent means rst and force may only be employed when non-violent means are ineective or without any promise of achieving the intended result. 2. The force used shall be proportional to the objective to be achieved, the seriousness of the oence, and the resistance of the person against whom it is used, and only to the extent necessary while adhering to the provisions of the law and the Standing Orders. 3. When the use of force results in injuries (a) the police ocers present shall provide medical assistance immediately and unless there are good reasons, failing to do so shall be a criminal oence; and (b) shall notify relatives or close friends of the injured or aected persons. (Emphasis added). Part B of the same Schedule makes provisions on the use of rearms by the police as follows: 1. Firearms may only be used when less extreme means are inadequate and for the following purposes a) saving or protecting the life of the ocer or other person; and (b) in self-defence or in defence of other person against imminent threat of life or serious injury. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1834/eng@2026-09-25 11

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2. 3. An ocer intending to use rearms shall identify themselves and give clear warning of their intention to use rearms, with sucient time for the warning to be observed, except— (a) where doing so would place the ocer or other person at risk of death or serious harm; or (b) if it would be clearly inappropriate or pointless in the circumstances. A police ocer shall make every eort to avoid the use of rearms, especially against children.” 67. In reiterating the contents of the post mortem report, PW17, the Senior investigating ocer of IPOA, who was also present during the post mortem exercise, testied that the deceased suered physical injuries and gunshot wounds to the right leg, abdomen and the right side of the head, which shattered the skull. The post- mortem report similarly pointed out that the injuries the deceased suered were on the right leg- a laceration injury of 2 degrees bullet injury and degloving injury of the skull on the right region of the head. 68. What is clear from the evidence on record is that, before the deceased was shot at the head, he had already been shot on the leg as well as in his stomach. In fact, he already lay on the ground. This means that he had already been immobilised. Ultimately, he had no ability to continue wrestling the appellants, that is if we are to believe the appellants’ assertions that the deceased had wrestled the 1st appellant to the ground, and was about to stab him with a knife. Having already immobilised the deceased after shooting him on the leg and stomach, the threat which the appellants were apprehensive of had already been diused. It surely beats logic that a person already shot in his leg and abdomen would still have the strength or ability to ght, and or for that matter, have the strength to lift a knife and stab somebody. This fact was buttressed by PW1, who testied that, when the deceased was shot in the head by the fatal bullet, he was already on the ground. The evidence is therefore clear that he was shot in the head while sitting on the ground as opposed to wrestling with the appellants. We cannot then fathom, just as the learned trial Judge could not, how the deceased was a danger to the appellants in those circumstances. 69. In Charles Munyeki Kimiti vs. Joel Mwenda & 3 others (2010) KECA 401 (KLR), this Court discussed the use of force by police ocers when eecting an arrest as follows: Whether or not police have used excessive force in eecting arrest is a matter of degree dependent on the peculiar circumstances of each case. In deciding whether liability should attach for alleged careless or negligent use of rearm by police in eecting arrest, the court should take into account, among other things, that the pursuit and arrest of dangerous and armed criminals is a hazardous operation and that it is in the public interest that the police operations are not unreasonably impeded by the decisions of the courts… The law only allows the police to use all means necessary to eect arrest and even then, they are not allowed to use greater force than reasonable or necessary in the particular circumstances.’’ 70. We emphasise four poignant observations. First, the 1st appellant already shot in the air to scare the deceased. Secondly, the deceased was rst shot in his leg, shoulder and abdomen. Hence, there was no justication whatsoever to shoot him in the head when he was no longer a threat. Thirdly, the appellants being police ocers knew better that a shot aimed at a person’s head was likely to lead to death. Fourthly, even assuming that the deceased was such a threat, the danger to the appellants who were police ocers each armed with a gun was negligible when considered against the stones and a club and/or wooden stick used by the deceased. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1834/eng@2026-09-25 12

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71. It is therefore dicult to countenance the possibility that it had to take a shot in the deceased’s head to immobilise him. The logical action the appellants would have taken in the circumstances was to disarm the deceased instead of shooting him in the head. After the rst three shots, the appellants were no longer in danger to justify retaliation with such force. In our view, the rst shot on his leg was sucient. It immobilised the deceased and made it easy for the appellants to apprehend him. 72. We do not therefore hesitate to nd and hold that the appellants, who acted in concert with each other, had malice aforethought and, consequently, the oence of murder was established. Malice afterthought is dened under Section 206 of the Penal Code as follows: Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances- 73. 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 person, whether that person is the person 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. an intent to commit a felony; d. an intention by the act or omission to facilitate the ight or escape from custody of any person who has committed or attempted to commit a felony. Malice aforethought was also dened by this Court in John Mutuma Gatobu vs. Republic [2015] eKLR thus: “ There is nothing in that denition that denotes the popular meaning of malice as ill will or wishing another harm and all the related negative feelings. Nor, for that matter, is it to be confused with motive as such. Our law does not require proof of motive, plan or desire to kill in order for the oence of Murder to stand proved, though the existence of these may go to the proof of malice aforethought.” 74. To our mind, the appellant’s vicious assault on the deceased denotes malice aforethought, that is the intention to cause death or to do grievous harm. The appellants knew or ought to have known that the repeated shooting of the deceased, and more so aiming at his vital body organs with a gun was likely to cause his death. 75. The appellants have argued that the bullet which is alleged to have shot the deceased in his head was not recovered, and hence no murder weapon was produced in court that linked them to the fatal shooting. In Chris Kasamba Karani vs. Republic (2010) KECA 478 (KLR), it was held that: The oence as charged could have been proved even if the dangerous weapon was not produced as an 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.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1834/eng@2026-09-25 13

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76. Similarly, in Ramadhan Kombe vs. Republic (2005) KECA 156 (KLR), this Court held: “ We now deal with Mr. Jengo’s other ground of appeal. He complained that the murder weapon was not produced. In the matter before the trial court and before us the cause of the deaths herein was patently obvious. The weapon used was clearly a panga. There is no other version of how the deceased were killed, nor by whom. Moreover, the counsel for the appellant, as the record shows, told the trial court that he had no questions to ask Dr. Mandalya (PW10), the witness who produced the post mortem reports. The failure by the prosecution to recover the murder weapon was not fatal to the case for the prosecution nor did the failure to produce it prejudice the appellant’s defence.” 77. All we are required to do is assess the evidence on record and juxtapose it with the cause of the death so as to reach a nding on the culpability of the appellants. In this instance, PW1 was at the scene of crime and was able to witness the deceased being shot by the appellants. Six (6) spent cartridges were recovered from the scene of crime. The post mortem report fortied the fact that the deceased died from a gunshot wound on the right side of his head. The persons who were armed with guns at the scene were none other than the appellants. No alternative evidence or arguments were preferred that there were other third parties who may have red those shots other than the appellants. Furthermore, the ballistic report conrmed that the cartridges were red by the 2nd appellant’s rie. 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. Indeed, the rearm register from Boka Police Post conrmed this fact. 78. In view of the foregoing, we arrive at the inescapable conclusion that the prosecution proved the oence of murder beyond reasonable doubt. And, having arrived at this conclusion, with due respect, we dier with the respondent’s submission that the appellants ought to have been convicted for the oence of manslaughter, whose elements are distinguishable from those of the oence of murder. We nd nothing on which to fault the learned Judge, as alluded by the appellants, that he did not properly evaluate the evidence on record in failing to nd that they (the appellants) acted in self-defence when they killed the deceased. To the contrary, they used excessive force while they were not in any danger from the deceased. Accordingly, their respective defences were unconvincing, and could not bail them out. 79. As to the sentence, we are mindful that it is an exercise of discretion by the trial court, and we can only interfere with such discretion only if it is shown that such discretion was exercised injudiciously, or that the trial court took into account matters that it ought not to have taken into account, or did not consider matters it ought to have considered or, altogether, the sentence is plainly illegal. 80. In Bernard Kimani Gacheru vs. Republic (2002) KECA 94 (KLR), it was succinctly stated that: It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sucient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1834/eng@2026-09-25 14

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81. We must note that, in his judgement, the learned Judge found that there was malice aforethought and therefore found the appellants guilty of the oence of murder. It is at the point of sentencing and after consideration of the pre-sentencing reports and victim-impact statements that the trial court took into account the fact that the appellants were on ocial duties when the unfortunate event occurred and, accordingly, considered a lenient sentence. 82. Section 204 of the Penal Code provides that a person convicted for the oence of murder shall be sentenced to death. However, pursuant to the Supreme Court decision in Francis Karioko Muruatetu & another vs. Republic (2017) eKLR, the death sentence under Section 204 is deemed as the maximum, and not to be imposed in mandatory terms. Clearly, the learned Judge imposed a sentence which he considered appropriate in the circumstances of the case. 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. 83. In the end, we nd 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. DATED AND DELIVERED AT MALINDI THIS 25TH DAY OF SEPTEMBER, 2026. A. K. MURGOR ........................... JUDGE OF APPEAL DR. K. I. LAIBUTA CArb, FCIArb. ........................... JUDGE OF APPEAL G. W. NGENYE-MACHARIA ........................... JUDGE OF APPEAL I certify that this is the true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1834/eng@2026-09-25 15

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