Baiweta v Republic

as she was sleeping in her house, she heard screams coming from the deceased’s house. She could not tell the time as she had just woken up. She took a torch and went outside; she ashed the torch towards the deceased’s house and saw the appellant coming towards her from his mother’s house. She asked him why his mother was screaming, and he replied that his mother usually screamed whenever she saw him. The deceased's home was about 100 meters away from her own and separated by a fence. The appellant told her that he would go with his sister, Nkirote, to keep their mother company, to which she replied that it was okay if they went with Nkirote. She then went back to sleep. The following day, she was informed by her neighbour, Sanda, that the appellant's mother had died. She informed the court that she knew the appellant prior to the date of the murder because he was a neighbour and a brother to Sanda, and that there was no previous dispute between the appellant and the deceased. 5. PW1 further testied that she was aware of a land dispute, as the deceased had a habit of selling her land, which her children did not approve. The deceased had ve children: Nkirote, the appellant, Gitonga, Sanda, and Ntiga. The children did not stay at home and only came to visit, except for the appellant and Nkirote, who used to live with the deceased. 6. In cross-examination, she stated that the scream she heard on 3rd October 2015 was dierent from the other screams by the deceased on other days. She heard the deceased say “unataka kuniua?” She woke up wondering why someone would want to kill the deceased. 7. PW2, Moses Thuranira, testied that on 8th October 2015, he travelled from Kiutine in Meru County to Meru town to identify the body of the deceased for the purpose of a post-mortem examination. The post-mortem procedure was subsequently conducted at Meru General Hospital, where PW2 was accompanied by Alexander Mungathia. 8. PW3, Dr Maria Muthoni Mwangi presented a post-mortem report of the deceased on behalf of Dr Irene Gachilaweka on 8th October 2015. According to the report, the physical assessment revealed a strangulation mark on the anterior angle of the neck, and the skin near the hand had peeled o. Internally, there were distinct signs of severe oxygen deprivation, and the intestines were distended. The neck region conrmed signs of strangulation, establishing the cause of death as asphyxia due to strangulation. Following the procedure, Death Certicate No. 16661 was ocially issued. The report was signed, dated, and stamped. 9. PW4, Lucy Nkirote, testied that on 3rd October 2015, she was returning from town to her mother's homestead. Upon arriving at the gate, the appellant, whom she identied as her younger brother, cut the dog with a machete (panga). When she questioned him about his actions, he replied that he had cut the devil. She decided to turn back and return to her own home, where she slept in her kitchen. The following day, her husband, Nkunja, went to her mother's place to look for her, since the couple had previously had a fall-out. He found PW4 at the home and was informed that the deceased had passed away. PW4 then proceeded to her mother's home where she conrmed the death. A police vehicle arrived and took the body to the mortuary. She further stated that she did not know if there had been any ongoing dispute between her mother and her brother. 10. PW5 PC Francis Okongi stated that on 4th October, 2015, while attached to the Kiutine Police Post under the Maua Police Station in Igembe Central, the station received a report from Alexander Mungathia, who reported that he had gone to visit his mother, the deceased, at her home only to nd her dead. Accompanied by IP Oulo, PW5 visited the scene, where they discovered the deceased lying on the ground in a spread-eagle position near the door on the side of the house used as a kitchen. Her head had been shoved into a 20-litre jerry can that was cut in half, utensils were scattered across the oor, and her neck exhibited bruises on the front part, all indicating a clear struggle. Furthermore, the bedding had been scattered, making it appear as though someone had been searching for something. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1860/eng@2026-09-25 2

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11. He testied further that during the initial investigation, the ocers interviewed a neighbour, PW1, whose home was located approximately 20 meters from the deceased's house. PW1 informed them that on the previous night, she heard the deceased screaming and went out to investigate, shining a torch toward the deceased’s home. She saw the appellant, whom she recognised as the deceased's son. When she questioned him about the matter, the appellant claimed his mother was screaming simply because she did not want to see him. Following this explanation, the deceased stopped screaming, and PW1 returned to her house without suspecting any foul play. The body was subsequently transported to Meru Level 5 Hospital, where a post-mortem examination later revealed that the deceased had been strangled. 12. He stated further that following the discovery, the police launched a manhunt for the appellant, who had gone into hiding. He was eventually apprehended by Assistant Chief Kieni Benson Kisonge, along with members of the community policing initiative. The appellant was escorted to the police post, interrogated, and subsequently arraigned in court to face charges. PW5 noted that the investigation established the motive for the killing was a dispute over the proceeds of a land sale. The land, which belonged to the deceased, had been sold to several vendors, including a buyer named Limuru. According to the appellant, he believed that the proceeds from this sale were hidden inside his mother's house. 13. When put to his defence, the appellant elected to give sworn testimony, testifying that on 3rd and 4th October 2015, he was at home until 6:00 p.m. before leaving for Kieni. He maintained that when he left on 3rd October 2015, at 6:00 p.m., his mother was still alive. He asserted that he had no dierences with her. He further claimed that he had not returned home and that he was subsequently arrested in Igembe by members of the public. The appellant denied escaping from his home, explaining instead that he was running away from a debtor who was demanding money from him. 14. During cross-examination, the appellant conrmed that the deceased was his mother and stated that he only learned of her death on 10th October 2015, the day he claimed he was arrested. He explained that he had been working for two years as a hired miraa picker within their village. He denied being at his mother's house at midnight on 3rd October 2015. The appellant testied that he had no personal problem with PW1 but asserted that she had lied to the court. He further stated that he was arrested on 13th October 2015, in Kieni. He explained that he was supposed to pay a debt on 4th October 2015, but, lacking the funds, he had pursued a nancial claim of his own. 15. In its determination, the court was of the view that although there were no eyewitnesses who directly saw the appellant strangle his mother, the evidence presented by PW1 and the appellant's sister, PW4, pointed directly to him as the perpetrator of the oence. Furthermore, the court found that the prosecution successfully proved through the collective testimony of all witnesses that a death occurred and that it was caused by the unlawful act of strangulation. It was additionally established that this unlawful act was actuated by malice aforethought. Ultimately, the court concluded that the appellant's alibi defence was discredited by the evidence of PW1 and PW4, rendering it unsustainable. In the end, the appellant was found guilty as charged and convicted. He was sentenced to suer death. 16. The decision of the High Court precipitated the instant appeal. The appellant led an undated memorandum of appeal on grounds that the learned Judge erred when he failed to note that the oence was not proved; the evidence adduced was not enough to sustain conviction, and it did not link the appellant to the oence; and by failing to consider the appellant’s defence without giving a cogent reason. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1860/eng@2026-09-25 3

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17. Learned counsel for the appellant led submissions dated 13th August 2025 and narrowed the appeal down to two primary issues, namely: whether the prosecution proved its case beyond reasonable doubt, and the validity of the mandatory death sentence meted out. 18. The core of the appellant's argument is that the prosecution failed to establish the critical elements of the oence of murder and specically the actus reus and mens rea. In support of this contention, counsel relied on Nyambura & Others v Republic [2001] KLR 355 and Bonaya Tutu Ipu & Another v Republic [2015] KECA 335 (KLR). 19. According to counsel, there were gaps and inconsistencies in the testimonies of the prosecution witnesses. For instance, PW1 gave conicting accounts on whether she heard the deceased scream "unataka kuniua?" (Do you want to kill me?), an allegation that lacked corroboration and was notably absent from her initial examination-in-chief. Furthermore, PW1 testied that the deceased routinely screamed, often due to drunkenness, meaning the behaviour was habitual and did not inherently link the appellant to her nal moments. He further submitted that contradictions arose regarding the distance between PW1's house and the deceased's, with estimates ranging from 100 meters (PW1) to 20 to 30 meters (PW4). 20. Counsel further asserted that the trial court erroneously relied on weak and unconvincing circumstantial evidence. He contended that the medical evidence from PW3 failed to clarify whether the cause of death (asphyxia due to suocation) was executed via ropes or bare hands, while the investigating ocer’s discovery of the deceased's head inside a halved 20-litre jerry can failed to connect the appellant to the act. He claimed that the prosecution's case relied heavily on the fact that the appellant lived in the same house as his mother, which counsel argued is insucient to prove guilt or place him at the scene of crime. 21. Additionally, counsel submitted that other narratives, such as allegations regarding disagreement on the sale of land and the alleged incident of a dog being cut, remained entirely unproven, lacking any linkage to the crime. Counsel underscored that suspicion, no matter how strong, cannot legally substitute for proof beyond a reasonable doubt. 22. On the trial court’s reliance on circumstantial evidence, counsel drew the attention of the court to Sawe v Republic (Criminal Appeal 2 of 2002) [2003] KECA 182 (KLR), Ahamad Abolfathi Mohammed & Another v Republic [2018] KECA 743 (KLR) and Neema Mwandoro Nduzya v Republic [2008] eKLR, which all posit that circumstantial evidence must be examined closely before forming a basis for conviction. 23. Finally, counsel challenged the constitutionality of the mandatory death sentence, citing the landmark Supreme Court precedent of Muruatetu & Another v Republic; Katiba Institute & 5 Others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR); counsel argued that the mandatory death sentence unconstitutionally strips trial courts of their discretion to weigh mitigating factors on a caseby-case basis. In this instance, he urged that the trial court failed to consider the appellant's mitigation, including the fact that he has a wife and two children. Counsel contended that the sentence meted out to the appellant is manifestly excessive. He urged the Court to quash the conviction, set aside the death sentence, and grant an acquittal. 24. Learned counsel for the respondent in opposition led submissions dated 11th August 2025. He argued that the trial court correctly found the appellant guilty beyond reasonable doubt after considering all the evidence presented. He submitted that the appeal is founded on three main grounds: failure by the prosecution to prove malice aforethought, insuciency of the evidence to sustain a conviction, and that the trial Judge failed to properly consider the appellant’s defence. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1860/eng@2026-09-25 4

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25. Counsel submitted that the rst two grounds are interconnected because malice aforethought is a key ingredient of the oence of murder under section 203 of the Penal Code. He emphasised that the prosecution had a duty to prove three elements beyond reasonable doubt: the death of the deceased and its cause, the appellant’s unlawful act causing the death, and the existence of malice aforethought. 26. Counsel contended that all these elements were satisfactorily established. The death of the deceased was undisputed and was conrmed by prosecution witnesses. Medical evidence from the postmortem examination showed strangulation marks on the neck, with the cause of death determined as asphyxiation due to strangulation. Counsel further argued that circumstantial evidence strongly linked the appellant to the crime. PW1 testied that on the night of 3rd October 2015 she heard screams coming from the deceased’s house and, upon shining a torch in that direction, saw the appellant emerging from the deceased’s home. Also, the deceased’s daughter (PW4) testied that she encountered the appellant in her mother’s compound around midnight after he had cut a dog with a panga. This made her leave the compound to spend the night elsewhere, only to learn the following morning that her mother had died. 27. Additional evidence was provided by the investigating ocer, who described the crime scene. The deceased’s body was discovered with her head forced into a cut-open jerry can, household items were scattered across the oor indicating a struggle, and visible bruises were present on her neck. Counsel submitted that these facts, together with the appellant’s presence at the deceased’s compound on the night in question and his subsequent disappearance, formed a complete chain of circumstantial evidence pointing irresistibly to his guilt. Counsel therefore maintained that the prosecution proved both the unlawful killing and the requisite malice aforethought beyond reasonable doubt. 28. Counsel argued further that the trial court did in fact consider the appellant’s defence. The appellant testied that he had visited his mother on the evening of 3rd October 2015, left her alive, had no disagreement with her, and later left home because he owed someone money rather than because he had committed a crime. However, counsel noted that the trial court evaluated this defence and found it unsustainable because it was contradicted by the testimony of key prosecution witnesses who placed the appellant at the deceased’s compound during the material time. The court therefore rejected the appellant’s alibi and accepted the prosecution’s evidence. 29. We have considered the record, the rival submissions by counsel and the law. In our view, the following issues arise for determination: i. Whether the prosecution proved the oence of murder against the appellant beyond reasonable doubt; ii. Whether the conviction founded on circumstantial evidence was safe; and iii. Whether this Court should interfere with the sentence imposed by the trial court. 30. In a charge of murder, the prosecution has the singular task of proving beyond reasonable doubt the following three ingredients in order to secure a conviction: that death occurred; the death was caused by the unlawful act of commission or omission of the accused; and the accused had malice aforethought as he committed the said act. These ingredients were set out by this Court in Moses Kadenge Dadu v Republic [2017] KECA 125 (KLR), where the Court held that the prosecution must prove: the fact of death, that the death was caused by an unlawful act of the accused and that the accused had malice aforethought. 31. In the present appeal, there is no dispute regarding the death of the deceased or the cause thereof. The evidence of PW3 established that the deceased died from asphyxia due to strangulation. The post- https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1860/eng@2026-09-25 5

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mortem examination revealed strangulation marks on the neck and internal ndings consistent with loss of oxygen. We are therefore satised that the prosecution proved the fact and cause of death beyond reasonable doubt. 32. The central issue is whether it was the appellant who unlawfully caused the death of the deceased. The prosecution’s case rested entirely on circumstantial evidence, there being no eyewitness to the actual killing. The principles governing reliance on circumstantial evidence are settled. In Sawe v Republic (supra), this Court held that in order to justify a conviction based on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis other than that of guilt. The Court further emphasised that the chain of circumstances must be complete. In Erick Odhiambo Okumu v Republic [2015] KECA 714 (KLR), this Court reiterated that it has long been accepted that the guilt of an accused person does not necessarily have to be proved by direct evidence alone. Circumstantial evidence, namely evidence that enables a court to deduce a particular fact from circumstances or facts that have been proved, can form as strong a basis for establishing the guilt of an accused person as would direct evidence. 33. The appellant's conduct before and after the attack is equally telling. The evidence shows that he had just cut up a dog and seemed angry. On being questioned by his sister, he said he had just cut up the devil. Hours later, a scream is heard, and the appellant is seen walking from the deceased’s home immediately thereafter, and later he goes into hiding. This Court has repeatedly held that the conduct of an accused person before, during and after the commission of an oence is a relevant circumstance from which guilt may be inferred (see Musili Tulo vs Republic [2014] KECA 412 (KLR)). 34. Section 8(2) of the Evidence Act states: "The conduct of any party… to any suit or proceeding, in reference to such suit or proceeding or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an oence against whom is the subject of any proceeding, is relevant, if such conduct inuences or is inuenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto." 35. Applying the principles to the evidence on record, we are satised that the prosecution established a complete chain of circumstances pointing irresistibly to the appellant as the perpetrator of the oence. PW1 testied that on the material night she heard unusual screams from the deceased’s house and specically heard the deceased utter the words “unataka kuniua?”. Upon ashing her torch towards the deceased’s house, she immediately saw the appellant emerge from the compound. PW1 knew the appellant very well as a neighbour and relative of the deceased. The possibility of mistaken identity was, therefore, completely excluded. 36. The evidence of PW4 corroborated that of PW1. PW4 testied that at about midnight she found the appellant at the deceased’s homestead armed with a panga and cutting a dog while proclaiming that he had “cut the devil.” Alarmed by the appellant’s strange conduct, she turned back and spent the night elsewhere. The following morning, the deceased was found dead. PW4 positively identied the appellant, who is her brother, both visually and by voice recognition. 37. Further corroboration was provided by PW5, the investigating ocer, who described the state of the scene. The deceased’s body was found lying near the kitchen area, her head shoved into a cut-open jerry can, with bruises visible on the neck. Household items and bedding were scattered all over the house, suggesting that there had been a violent struggle and that someone had been searching for something. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1860/eng@2026-09-25 6

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38. PW5 further testied that investigations established a dispute concerning proceeds from the sale of the deceased’s land. The evidence showed that the deceased had sold portions of her land and the appellant believed that the proceeds from the sale were hidden in the deceased’s house. In our view, that evidence established motive. Although motive is not an essential ingredient of the oence of murder, it becomes relevant where the prosecution case rests on circumstantial evidence. 39. We nd that the appellant’s defence was a mere denial and the alibi that he had left home at about 6.00 p.m. and never returned unbelievable. The learned Judge was therefore right in rejecting the alibi defence. PW1 and PW4 rmly placed the appellant at the deceased’s homestead on the material night. Further, his conduct after the incident, including his disappearance from the village until his arrest, strengthened the prosecution's case. 40. We, therefore, nd that although there were no eyewitnesses to the actual killing, the circumstantial evidence adduced by the prosecution irresistibly linked the appellant to the death of the deceased and left no room for any other reasonable hypothesis. 41. On whether malice aforethought was established, we are satised that the manner in which the deceased was killed demonstrated clear intention to cause death or grievous harm. The deceased was strangled and her body subjected to degrading treatment. In Nguwa alias Kandili & Another v Republic (Criminal Appeal E084 of 2023 & E025 of 2024 (Consolidated)) [2025] KECA 2107 (KLR), this Court held that malice aforethought may be inferred from the nature of the injuries inicted, the weapon used and the manner in which the attack was executed. The evidence before the trial court suciently established malice aforethought within the meaning of section 206 of the Penal Code. The conviction was safe and we nd no basis for interfering with it. 42. Turning to the sentence, we note that the appellant was sentenced to suer death. Following the decision of the Supreme Court in Muruatetu & Another v Republic; Katiba Institute & 5 Others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR), the mandatory nature of the death sentence is no longer applicable, and courts retain discretion in sentencing. This Court has, in numerous decisions, substituted determinate sentences for death sentences, depending on the circumstances of each case. 43. We have considered the mitigating and aggravating circumstances of the case and although sentencing is discretionary, we nd that despite the decision in Muruatetu, the trial Judge did not address her mind to that decision and, as if oblivious of the new jurisprudence, she meted out the death penalty without distinguishing circumstances, if any, from the Muruatetu position. 44. We therefore nd the need to interfere with the death penalty meted out to the appellant and take note that the oence was grave and involved the killing of an elderly and vulnerable mother by her own son. However, we also take into account that the appellant is a rst oender and has been in custody for a substantial period. In the circumstances, the sentence of death imposed by the High Court is set aside and substituted with a sentence of forty (40) years' imprisonment to run from the time of his arrest. The time the appellant spent in custody is to be considered in the computation of the jail term 45. Accordingly, the appeal partially succeeds. For avoidance of doubt, the conviction is upheld, and the sentence is reduced to 40 years as enumerated above. It is so ordered. DATED AND DELIVERED AT NYERI THIS 25TH DAY OF SEPTEMBER, 2026. W. KARANJA https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1860/eng@2026-09-25 7

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JUDGE OF APPEAL ........................... K. M’INOTI JUDGE OF APPEAL ............................ ALI-ARONI 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/2026/1860/eng@2026-09-25 8

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