Richard Mokaya Nyambane v Republic

3. A post mortem examination conducted on the body of the deceased on 4th April 2013 showed that the cause of death was cardiopulmonary arrest due to excessive blood loss and fracture of the ribs, as a direct cause of trauma of the chest. The report was presented by Dr. Silas Ayunga (PW4), the Medical Superintendent at Nyamira County Referral Hospital, on behalf of Dr. Bosire, who was at the time undertaking further studies. PW4 stated that he was familiar with Dr. Bosire’s handwriting, and that he came to work at the hospital after the said Docter had left. The post-mortem examination was witnessed by Augustus Omboga Nyambane (PW6), the deceased’s second- born son. 4. The incident was investigated by PC Peter Gatimu Macharia (PW5), who went to the deceased’s homestead on 27th March 2013 and interviewed PW1 and PW2, who gave an account of what had transpired. On 28th March 2013, PW5 received a phone call from PW1 who informed him that the appellant had been arrested by members of the public at Kenyenya District. PW5 thereupon rearrested the appellant, brought him to Nyamira Police Station, and charged him with the oence of murder at Kisii High Court. 5. In his defence, the appellant, who gave sworn testimony, denied killing his mother and stated that the deceased was sick and he took her to hospital at Nyabara Ibere clinic on 26th March 2013 together with PW 1, PW 2,and PW 3, where she was admitted. He then went home to see his children who lived with his mother, since his wife was not around, and on 27th March 2013 at 5.am PW3 called him saying his mother was very sick and they transferred her to Nyamira Hospital, whereupon she died on arrival and was taken to Nyamira Mortuary. He was tasked to inform his biological sisters of the death and also informed his wife and uncles. However, that on 27th March 2013, Joshua, who was his nephew, arrested him and took him to Kiango AP Post for being the cause of his mother’s death. The appellant denied kicking the deceased, and stated that charges were fabricated because he had a grudge with PW 1 on the issue of a shamba (land), and PW1wanted to take his personal land. 6. After hearing the evidence, the High Court at Nyamira (C.B.Nagillah J.) delivered a judgment on 31st August 2016 in which the learned trial Judge identied two issues for determination, namely whether the statement by the deceased person to PW 1, PW 2 and PW 3 on the night of 26th March 2013, amounted to a dying declaration; and whether there is enough circumstantial evidence on record, sucient to convict the accused person of the murder of the deceased person. After examining the provisions of section 33(a) of the Evidence Act and various judicial authorities, the learned Judge found that on the night of 26th March 2013 when the deceased raised the alarm by screaming, PWl, PW2 and PW3 rushed to the deceased's house and saw the appellant coming out of the house. Further, that the deceased not only said Mokaya was killing her, but blood was oozing from her right ear, and the post mortem report conrmed her injuries. 7. The learned Judge found this to be enough circumstantial evidence pointing to no one else except the appellant, coupled with the declaration that Mokaya has killed her. Lastly, that the appellant knew that his actions of kicking and stepping on the deceased would cause her death or grievous harm as set out in section 206 (b) of the Penal Code. Therefore, that the case had been proved beyond doubt against the appellant 8. The Appellant was aggrieved by the ndings of the High Court and proered this appeal, in which he has raised ve (5) grounds of appeal in his Memorandum of Appeal dated 22nd January 2024 as follows: 1. The Learned Judge erred in law and facts by not cautioning herself on the danger of admitting the dying declaration of a drunk victim. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1859/eng@2026-09-25 2

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2. The Learned Judge erred on points of law and fact by relying on hearsay evidence to convict the Appellant herein. 3. The Learned Judge erred in law and fact by failing to consider the discrepancies in the chain of events leading to the death of the deceased. 4. The Learned Judge erred in law by admitting the post mortem report produced by an expert (Dr. Silas) who was neither acquainted with the handwriting nor saw the author of the report (Dr. Bosire). 5. The sentence meted on the Appellant was harsh, cruel and therefore unreasonable. 9. We heard the appeal on the Court’s virtual platform on 1st September 2025 and the appellant, Richard Mokaya, was present appearing virtually from Naivasha Maximum Prison. Learned counsel Mr. Byron Menezes, appeared for the appellant, while learned Principal Prosecution Counsel, Mr. Mwangi, who was holding brief for learned Prosecution Counsel Ms. Vane Mochama, appeared for the respondent. Both counsel relied on their respective written submissions dated 22nd January 2024 and 17th February 2024. 10. As this is a rst appeal, the duty this Court, as set out under section 379(1) of the Criminal Procedure Code and Rule 31(1)(a) of the Court of Appeal Rules, 2022 is to re-evaluate and analyze the facts and evidence that resulted from the decision of the High Court and thereafter to arrive at its own independent decision. This duty was well articulated by this Court in the case of Erick Otieno Arum vs Republic [2006] eKLR 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 analyze 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.” 11. Mr. Menezes urged two issues in this appeal. The rst was that the learned trial Judge erred on points of law and fact by relying on hearsay evidence to convict the appellants. According to counsel, the Court needed to take caution when convicting an accused person on the basis of a dying declaration. Reliance was placed on the decisions in Philip Nzaka Watu vs Republic [2016] eKLR, Jasunga S/O Akumu vs R (1954) 21 EACA 331, Charles Njonjo Gituro vs Republic [2019] eKLR and Moses Wanjala Ngaira vs Republic [2019] eKLR that notwithstanding section 33(a) of the Evidence Act, evidence of a dying declaration must be approached with circumspection and admitted with caution because rstly, the dying declaration is not subject to the test of cross-examination and secondly, circumstances leading to the death of the deceased such as acts of violence, may have occasioned him confusion and surprise so as to render his perception questionable. 12. Therefore, it is a rule that a dying declaration must be satisfactorily corroborated to nd a conviction, and counsel faulted the trial Judge for failing to direct himself to this fact, and although the dying declaration was admissible caution should have been exercised by the trial Judge while admitting it to evidence and relying on it for conviction, based on the fact that the deceased was intoxicated at the time of giving the statement. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1859/eng@2026-09-25 3

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13. Mr. Mwangi’s position was that the deceased made statements in the presence of PW1, PW2 and PW3 that the appellant assaulted her and inicted injuries to her chest and all over her body, and was even heard saying ‘Mokaya has killed me’. Further, that the three witnesses were steadfast in their testimonies. As to whether the statement amounted to a dying declaration, counsel referenced section 33 (a) of the Evidence Act, and the principles governing dying declarations as an exception to the rule against admissibility of hearsay evidence as laid down by this Court in the case of Philip Nzaka Watu vs Republic (supra). 14. It was counsel’s argument that in this particular case, the court exercised caution in admitting the testimony of PW 1, PW 2 and PW 3 in relation to the deceased’s dying declaration, and it was properly admitted since the said witnesses saw the appellant coming from the bedroom of the deceased, who was at the time screaming in pain. Further the said witnesses had the benet of getting the deceased from her bedroom and taking her to the siting room, interrogating her, and she clearly narrated how the appellant assaulted her. 15. The second issue urged by the appellant’s counsel was that the circumstantial evidence relied upon by the trial Court did not satisfy the legal threshold as set out in the case of Republic vs Michael Muriuki Munyuri [2014] eKLR which stated the three-tier test as: “ i. the circumstances from which an inference of guilt is sought to be drawn, must be cogently and rmly established, ii. those circumstances should be of a denite tendency unerringly pointing towards guilt of the accused; iii. The circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.” 16. Further reliance was placed on the case of Sawe vs Republic [2003] eKLR to submit that that the circumstances from which an inference was sought to be drawn was not rmly established, and counsel submitted that the appellant was in good terms with the deceased, as per the testimony of PW 2 and PW6, and that the foundation that was built by the prosecution on disagreement was in doubt. Further, that the evidence by PW 4 on the post mortem failed to demonstrate how he was acquainted with the handwriting of the author of the report and when questioned on how the ‘excessive blood loss’ caused the death he stated that he only came to produce the report. Lastly, that the appellant’s testimony that he accompanied the other family members to the hospital was not in any way rebutted by the prosecution, and therefore, the circumstances inferred did not form a chain so complete to implicate the appellant. 17. Mr. Mwangi, while citing the decisions in Abanga alias Onyango v Rep. Cr. A No. 32 of 1990 UR and Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR on the tests that a case that relies on circumstantial evidence must satisfy, submitted that the prosecution met all the three tests that are required when circumstantial evidence is relied, and that the chain of evidence was so linked to place the appellant at the centre of the oence. According to counsel, the appellant was found coming from the bedroom of the deceased, the deceased was screaming in pain, and the deceased was not drunk as she was able to go to her living room and narrate how the appellant attacked her, an indication that her mind was not intoxicated by alcohol. In addition, the medical report was prepared by an expert and his representative properly explained the condition of the deceased and ndings as prepared by his colleague. Additionally, there was no need for DNA evidence since the appellant was positively https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1859/eng@2026-09-25 4

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identied by the deceased to the witnesses, and was placed at the scene as he was seen coming from her bedroom. 18. The two issues urged in the foregoing turn on the question as to whether the appellant caused for the deceased’s death with malice aforethought. The other element required to be established in murder, namely that the death of the deceased is not in dispute; and was proved by the evidence of PW1, PW2. PW3, PW5 and PW5, while the cause thereof was established by PW6. 19. The appellant’s case is that the evidence of the dying declaration and circumstances surrounding the death of the deceased did not establish beyond reasonable doubt as the person who caused the death. A dying declaration was dened by this Court in Mwangi vs Republic [2023] KECA 246 (KLR) as follows: “ …a statement made by a person concerning what he believes to be the cause or circumstances of his death, when knowing that death is imminent. The statement so made earns its credibility and evidentiary value from the general belief that most people, upon realizing that they are about to die “will not lie”. 20. The maker of statement must therefore be dead, their death must be the subject of the proceedings before the Court, and the statement must relate to the cause of death or the events that led to the death.The statement is admitted in evidence as an exception to the hearsay rule under section 33(a) of the Evidence Act as held in of Philip Nzaka Watu vs Republic (supra), and the reason for its admissibility was explained in the case of Choge vs Republic [1985] KLR thus: “ …The general principle on which a dying declaration is admitted in evidence is that it is a declaration made in extremity when the maker is at the point of death and the mind is induced by the most powerful considerations to tell the truth. In Kenya, however, the admissibility of a dying declaration does not depend upon the declarant being, at the time of making it, in a hopeless expectation of imminent death. 21. While there is no need for corroboration for a dying declaration to support a conviction, it has been emphasized by various decision of this Court that the exercise of caution is necessary in the reception into evidence of such declaration as underscored in Peter Kimathi Kanga vs Republic [2015] eKLR: “ Courts have on their part formulated rules to guide the reception and weight to be attached to dying declarations and it is sensible that one made when death is imminent will be accorded a high degree of credit since in the extremity of life’s ebbing away, it is expected that one has a strong motive to be truthful. In the interests of fairness to an accused person, a rule has also developed that a court should approach a dying declaration with caution and act on it only if satised as to its veracity and if there is corroboration, but only as a cautionary rule of practice, not a legal requirement.” 22. As regards a conviction based on circumstantial evidence, the threshold required to be met in this regard was stated in R vs Kipkering Arap Koske [1949] 16 EACA 135 and Sawe vs Rep [2003] KLR 364 namely, that such circumstantial evidence must exclude co-existing circumstances which would weaken or destroy the inference of guilt. In Abanga alias Onyango vs Republic Cr. Appeal No. 32 of 1990 (UR) this Court set out three tests to be applied to determine whether the circumstantial evidence https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1859/eng@2026-09-25 5

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relied on by the prosecution can lead to a conclusion that it is the accused who committed the oence under consideration. The said tests are: “ i. the circumstances from which an inference of guilt is sought to be drawn, must be cogently and rmly established; ii. those circumstances should be of a denite tendency unerringly pointing towards guilt of the accused; iii. the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.” 23. In this appeal, we note that the trial court did not caution itself, as we have done hereinabove, before relying on the deceased’s dying declaration, although the said court was cognisant that the statements she made were a dying declaration. In this respect, our analysis of the evidence, particularly the testimonies of PW1, PW2, and PW3, who all spoke to the deceased on the evening she died, is that they were unequivocal that the deceased told them that she had been beaten by appellant. 24. The deceased in this regard told PW1 “my son help me because Mokaya has killed me”. PW2 testied that after they met the appellant in the deceased’s house, the deceased responded from her room that “ I am not drunk, I have been beaten by the accused”, while PW3 testied that after they carried her from her bedroom to the sitting room, “we asked what happened. She said she had been beaten by the accused person. She told us how she was beaten. She was kicked.” The deceased’s dying declaration was therefore consistently repeated to several witnesses. 25. The said statements were further corroborated by the evidence of PW1, PW2 and PW3 who stated that she had scratches on her face and blood was oozing from her right ear. The postmortem report also found that the cardiopulmonary arrest the deceased suered the same evening was as a result of excessive blood loss and fracture of the ribs resulting from trauma to her chest, which was consistent with her statement that she had been kicked by the appellant. We accordingly nd that the deceased’s statement not only qualied to be admitted as a dying declaration, it was also corroborated by the evidence of PW1, PW2, PW3 and PW4 as regards the injuries that she suered and the cause of her death. It was therefore safe to rely on the said dying declaration, and it eectively established that the appellant caused the deceased’s death. 26. As regards the reliance of circumstantial evidence, having found the dying declaration to be proper and admissible, the only remaining question we need to answer is whether there was any other evidence that rendered the circumstances leadings to the deceased’s death was incomplete, uncorroborated or contradictory. Mr. Menezes in this respect singled out the testimony of PW2 and PW6, which indicated the appellant to be on good terms with the deceased. However, upon cross-examination PW2 indicated that he was afraid of the appellant, he did not have a good relationship with him when he was drunk, and that the deceased had previously made a complaint against the appellant; while PW6 only stated that “I don’t know what happened, I don’t know why my brother is here”. We do not nd this evidence capable of breaking the chain of events leading to the deceased’s death. Additionally, PW1 and PW5 did testify that the appellant left the home after the incident, and was arrested elsewhere, and none of the witnesses he claimed he was placed him at the hospital when the deceased died. On the medical report produced by PW4, we note that the appellant was represented by counsel during trial, who did not object to the production of the report by PW4, and who did not call an expert witness to challenge the ndings therein. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1859/eng@2026-09-25 6

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27. Lastly, on whether the appellant acted with malice aforethought, section 206 of the Penal Code species the circumstances that shall be deemed to establish malice aforethought, one of which is the intention to cause the death of or to do grievous harm to any person. The appellant, by kicking and stepping on the deceased, his mother who was also elderly, clearly knew that it would cause her injury, and he therefore intended to cause the deceased grievous harm. We therefore nd that he did cause the death of the deceased with malice aforethought. 28. The nal issue raised by Mr. Menesez was on resentencing, and while citing the decision of the Supreme Court case of Francis Karioko Muruatetu & another v Republic [2017] eKLR that the provisions of law which excludes or fetter discretion of a court of law in sentencing were inconsistent with the Constitution, and the clarication in this regard it made in the case of Francis Karioko Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae ) [2021] eKLR (The Muruatetu Case) that the decision only applied in respect of sentences of murder under section 203 and 204 of the Penal Code, counsel submitted that any person wishing to have their cases reviewed, may do so for resentencing hearing as guided by the Supreme Court. 29. Counsel submitted that the appellant’s mitigation was not considered before the sentence was imposed, and the chances of not coming up with an appropriate sentence were enhanced in the circumstances. He requested for resentencing based on the above-cited provisions of the Constitution and the Penal Code and precedent, and the mentioned mitigating factors. Additionally, counsel urges the Court to order for a rehearing of the sentencing of the appellant and the High Court judgment delivered on 31st August 2016 be quashed and set aside or be reviewed. 30. The position taken by Mr. Mwangi was that the sentencing of the appellant was lawful just and fair based on the evidence adduced by the prosecution witnesses, and that the decision in the Muruatetu Case did not outlaw the death sentence, rather, of concern to the Supreme Court was the mandatory nature of the sentence and not the sentence itself per se. Counsel further submitted that this Court should consider the circumstances of this appeal, namely that the deceased was the appellant’s mother and he denied committing this heinous act in a cruel manner and was not remorseful. Therefore, that this case met the threshold for the death penalty imposed by the trial Court, which was a sucient and deterrent sentence in the circumstances. 31. We need to point out that sentencing is essentially the exercise of discretion, and as a principle this Court will normally not interfere with exercise of discretion by the court appealed from unless it is demonstrated that the court acted on wrong principle; ignored material factors; took into account irrelevant considerations; or on the whole that the sentence is manifestly excessive. Even if an appellate court feels that the sentence is heavy and it might not have passed that sentence, this alone is not sucient ground for interfering with the discretion of the trial court on sentence, unless any of the above-stated matters are shown to exist. The Supreme Court did arm the importance of judicial discretion in sentencing in the Muruatetu Case, and that courts must weigh the specic circumstances of both the oender and the oence to ensure a just outcome. 32. In the present appeal, we note that the appellant was not given any opportunity to mitigate, and the learned trial Judge sentenced the appellant to die “as by law established”. Therefore, an important step was not undertaken by the trial Court namely that of mitigation, and as a result material factors were not taken into account, nor were the provisions of section 216 of the Criminal Procedure Code, which require a trial Court to receive such evidence as it thinks t to inform itself as to the sentence or order properly to be passed after convicting an accused person or before passing sentence or making an order against an accused https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1859/eng@2026-09-25 7

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33. The appellant’s counsel has requested us to consider the above factors and the appellant’s mitigating factors in resentencing him. We have however already noted that the appellant was never given any opportunity to mitigate in the trial Court, and neither were the mitigating factors indicated in his submissions. Therefore, the most appropriate remedy in the circumstances is for the re-sentencing to be made by the trial Court, being the High Court, as directed in the Muruatetu Case. It is also notable in this regard that this Court has the power under Rule 33 of the Court of Appeal Rules of 2022 to to remit the proceedings to the superior court with such directions as may be appropriate. 34. The Supreme Court in this respect gave the following guidelines as regards resentencing in the Muruatetu Case : “ iii. All oenders who have been subject to the mandatory death penalty and desire to be heard on sentence will be entitled to re-sentencing hearing. iv. Where an appeal is pending before the Court of Appeal, the High Court will entertain an application for re-sentencing upon being satised that the appeal has been withdrawn. v. In re-sentencing hearing, the court must record the prosecution’s and the appellant’s submissions under section 329 of the Criminal Procedure Code, as well as those of the victims before deciding on the suitable sentence. vi. An application for re-sentencing arising from a trial before the High Court can only be entertained by the High Court, which has jurisdiction to do so and not the subordinate court. vii. In re-hearing sentence for the charge of murder, both aggravating and mitigating factors such as the following, will guide the court; viii. 35. a. Age of the oender; (b) Being a rst oender; c. Whether the oender pleaded guilty; d. Character and record of the oender; e. Commission of the oence in response to gender-based violence; f. The manner in which the oence was committed on the victim; g. The physical and psychological eect of the oence on the victim’s family; h. Remorsefulness of the oender; i. The possibility of reform and social re-adaptation of the oender; j. Any other factor that the court considers relevant. Where the appellant has lodged an appeal against sentence alone, the appellate court will proceed to receive submissions on re- sentencing.” We accordingly dismiss the appellants appeal against his conviction for the oence of murder, and partially allow the appeal against the sentence only to the extent that we set aside the sentence of death, and remit the proceedings back to the High Court at Nyamira for the appellant’s re- sentencing for his https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1859/eng@2026-09-25 8

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conviction for murder under sections 203 and 204 of the Penal Code. The High Court at Nyamira shall in this regard comply with the provisions of section 216 of the Criminal Procedure Code in conducting the sentencing hearing, and also properly take into account the period that the appellant has spent in custody as required by section 333(2) of the Criminal Procedure. The appellant shall in the meantime be remanded in custody pending the re-sentencing hearing by the High Court at Nyamira. 36. The Deputy Registrar of this Court shall ensure the record of appeal and this judgment is placed before the Presiding Judge at the High Court at Nyamira within 30 days of the delivery of this judgment for directions. 37. Orders accordingly. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2026 P. NYAMWEYA ………………………………… JUDGE OF APPEAL L. ACHODE ………………………………… JUDGE OF APPEAL J. MATIVO ………………………………… JUDGE OF APPEAL I certify that this is a true copy of the original DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1859/eng@2026-09-25 9

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