Munene v Republic

PW1 went downstairs, where he met the gardener (PW2), who had a torch and a panic button. PW2 informed him that he had heard noises and screams from the main house. 3. PW1 further testied that he and PW2 cautiously went upstairs, where PW1 heard the footsteps of about three (3) to ve (5) persons running downstairs. Upon entering the master bedroom, he found PW4 bleeding and weeping from a cut on the upper part of her forehead. PW1 and PW2 went downstairs and, in the dim moonlight, saw people climbing over the gate. They raised the alarm by activating the panic button. The security team responded and proceeded upstairs to where PW4 was. They found a man standing behind a curtain near the balcony window. According to PW1, the man held a metal bar in both hands and appeared intent on attacking the guards. The guards asked PW1 whether he knew the man. When PW1 answered that he did not, he heard two (2) gunshots. One of the guards then said, “Msiogope, tumemaliza” loosely translated to: “Do not fear, we have nished him.” Police ocers from Hardy Police Station arrived and searched the house. It was subsequently established that a laptop and two mobile telephones were missing. PW1 testied that the appellant shot the deceased and that he later learnt that the appellant was a police ocer. 4. Jackson Kameri Wanjohi (PW2), testied that he worked as PW1’s gardener at his home in Karen. His duties included tending the owers and opening the gate. It was his testimony that on the evening of 24th May 2011, he was on duty at the residence. At about 9.00 p.m., PW4 drove home alone and retired to bed. PW1 arrived alone at about 10.00 p.m. At approximately 1.00a.m., PW2 heard dogs barking and a bang from the house which sounded like a door being broken. He left his room and saw PW1 running towards him. That PW1 asked him to bring a torch and the alarm. PW2 found a torch, the alarm and a metal bar, and accompanied PW1 into the house. They proceeded upstairs and heard PW4 screaming. They also heard movement in the rooms. The bedroom door had been broken. When they entered, they found PW4 lying on the bed with a cut on her forehead. It was his further evidence that he did not see anybody else in the room. Alarmed, he and PW1 switched o the spotlight and rushed outside, where they saw two people jump over the gate. PW2 activated the alarm, upon which the Security Group oce responded. PW2 remained at the gate to secure it and then heard a gunshot. When he went upstairs, he was informed that a thief had been shot. The man who had been shot was dressed in a T-shirt and boxer shorts, but wore no trousers. 5. Peris Wanjiru Mukanda (PW3) who worked as PW1’s house help, testied that on the material night she heard a bang on a door and the screams of a woman whom she recognized as PW4. When she opened her bedroom door, she saw security guards who pushed her back. She later went to PW1’s bedroom and found PW4 bleeding. At PW1’s request, she assisted PW4 to change her clothes. She also cleaned the house and wiped blood from the room, as PW1 instructed her to do. 6. Agnes Kathryn Wanjiku Muhia (PW4) testied that she and PW1were married in 1991 but that they later divorced. Owing to disagreements, they slept in separate rooms between 2010 and 2011. It was her evidence that she knew the deceased, with whom she had worked at Kenya Wine Agencies for about three years. Their friendship developed into an intimate relationship in about 2009. PW1 knew the deceased as PW4’s former colleague, and the deceased visited PW4 at the residence when PW1 was away. On 24th May 2011, PW4 received a call from a client concerning catering work in Hurlingham and asked the deceased to accompany her. At about 9.00 p.m., she drove home with him. PW2 opened the gate for them. They entered her bedroom, locked the door and retired to bed while PW1 was away. They were later awakened by a loud bang on the door. Two people entered, one carrying a torch. In the light cast by the security lamps, the person with the torch shone it upon the deceased, while the other struck PW4 on the right arm, shoulder and head. She lost consciousness and did not know what thereafter befell the deceased. She regained consciousness in the presence of a paramedic, who took her to hospital, and learnt of the deceased’s death on the third day of her admission. It was her https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1886/eng@2026-09-25 2

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further evidence that PW1 also informed her that one of the suspected intruders had been shot dead in the house. Upon discharge, she went to Nakuru and declined to return to the Karen residence. PW4 maintained that PW2 had opened the gate and could have seen her and the deceased enter. The dogs remained conned in their kennel. According to her, there had been no external attack upon the house. 7. Fredrick Ouma Onyango, (PW5) a security ocer employed by Security Group, testied that on 24th May 2011 the duty controller instructed him to respond to an alarm raised at the Hardy Karen residence of their client, PW1. PW5 proceeded there with two colleagues, Edmond and Pius, and the appellant, a police ocer assigned to their team for night operations. It was his further testimony that they found the bedroom door broken and entered using torches. A man dressed only in a T-shirt and boxer shorts was in the bedroom. He appeared to be armed with a metal bar and to be aiming it at the appellant. PW5 then heard two gunshots, which the appellant red. He added that the premises were unlit when the team arrived and that the dogs were conned. He observed no sign of forcible entry into either the compound or the house, and no apparent escape route. In his view, the suspected intruders might have entered through the ordinary entrance. 8. Edmond Bitali Wanjala (PW6), also an employee of Security Group, gave evidence substantially similar to that of PW5. It was his testimony that he followed behind the appellant and PW1 as they proceeded upstairs. The bedroom door was not locked. Upon entering, he saw a person emerge from behind the curtains and then heard gunshots. He subsequently noticed a metal bar but, because it was dark, did not see the deceased holding it. A search disclosed no damaged part of the house and no cut in the perimeter fence. The compound was dark, while the neighbouring residence had lights. The electricity meter box had been switched o. PW6 conrmed that the appellant red the shots that struck the deceased. 9. Obadiah Waigura Wambugu (PW7), a friend of the deceased, testied that when the deceased’s family and friends could not reach the deceased by telephone, they searched for him in hospitals and mortuaries. It was his evidence that at the City Mortuary, they found his name in the register and learnt that a police ocer from Hardy Police Station had delivered his body there. PW7 positively identied the body, which bore gunshot wounds to the chest and swelling on the face. 10. Elizabeth Mughanga Ngali (PW8) the deceased’s mother, testied that on 24th May 2011 she spent the day with the deceased at home until about 4.00 p.m., when he left and promised to return by 9.00 p.m. He however did not return. It was her further testimony that the following morning, she called his telephone number, but there was no answer. She knew PW4 as the deceased’s girlfriend, although she suspected that PW4 was married. Upon learning that her son’s body was at the mortuary, she identied it and observed a deep cut on the head and two bullet wounds to the chest. 11. Mwanyangeli Ngali (PW9) the deceased’s father, testied that on 26th May 2011 he also learnt that his son’s body was at the mortuary and identied it. He observed the same injuries and believed that the deceased had been tortured and injured before he was shot. He knew PW4 as the deceased’s friend as she had visited the deceased at their home. 12. Dr. Joseph Maundu (PW10), produced medical reports concerning the injuries sustained by PW4 and PW1. PW4’s injuries were classied as grievous harm, while PW1’s were classied as harm. Dr. Kizzie Shako (PW11) conducted a mental assessment of the appellant and found him t to stand trial for murder. 13. Chief Inspector Emmanuel Lagat (PW12) No. 230513, a rearms examiner, examined the rearm and prepared a report which was produced in evidence which indicated that the 2 bullets red were from https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1886/eng@2026-09-25 3

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the same gun. PC Peter Omolo Owino (PW13) No. 76877 visited the scene and found the body of an adult male lying on the bedroom oor with fresh cut wounds to the head. He photographed the scene and the body. From the photographs, he conrmed that the body lay between the bed and the curtain, but not next to the curtain. 14. Samuel Mwamburi Mwashimba (PW14), a close friend of the deceased, testied that upon learning of the deceased’s disappearance, he telephoned PW4 and visited her in hospital. He asked the hospital management who had taken her to the hospital whereupon he was referred to Hardy Police Station. PW14 and his friends then searched the City Mortuary, where they found the deceased’s body. They subsequently met the Ocer Commanding Hardy Police Station and were informed that the deceased had been involved in a robbery and rape at PW1’s residence. PW14 testied that he had previously accompanied the deceased to PW1’s house to collect or drop o PW4. He conrmed that PW4 and the deceased had been in an intimate relationship. 15. Cpl. Augustine Kipkuto (PW15) No. 72305, testied that the appellant telephoned and informed him that he had shot a suspected intruder at PW1’s residence. PW15 proceeded to the scene and found the appellant, who informed him that he had been assigned to provide police backup to the Security Group. 16. Dr. Dorothy Njeru (PW16), a pathologist, conducted the post-mortem examination. She testied that she found two bullet wounds to the chest, cut wounds to the head, a tear to the upper lip and bruises on the forearm. In her opinion, the cause of death of the deceased was chest injuries due to gunshot wounds. The post-mortem report was produced in evidence. PW16 further testied that the head injuries sustained by the deceased were themselves capable of causing death, but she could not determine whether the head wounds or the gunshot wounds had been inicted rst. 17. Sharifa Haji Abubakar (PW17), a nurse attached to the Kenya Red Cross, responded to a distress call at Hardy Police Station. She was informed that a woman had been injured and possibly raped. She proceeded to PW1’s home and escorted the woman to an ambulance. Fredrick Mutua Mutie (PW18) her colleague in the Red Cross ambulance service, testied that he had also been dispatched to attend the distress call in the Hardy area. 18. Erick Lukaya Ndiang’a (PW19), the operations manager of Security Group testied that he received an alarm signal from PW1’s residence and dispatched a security team accompanied by a police ocer. 19. Justus Kirikwa (PW20), the deceased’s brother-in-law, testied that he accompanied the deceased’s father to City Mortuary and identied the body of the deceased. It was his further evidence that he knew PW4, whom he had met at the deceased’s home and whom the deceased had introduced as his friend. 20. Inspector Martin Nyuguto (PW21) No. 235062 took over and investigated the case. He interviewed several witnesses, including PW1, PW2, PW3, PW4, the appellant and ocers of Security Group. His investigations established that the deceased was not a thief but a friend of PW4. Upon completing the investigations, he forwarded the le to the Director of Public Prosecutions who directed that the appellant be charged with murder. 21. At the close of the prosecution case, the High Court found that the appellant had a case to answer and placed him on his defence. The appellant denied the charge and gave sworn evidence but called no witness. He testied that he had joined the Police Force in 1987 and was, at the material time, a constable attached to Hardy Police Station. On 25th May 2011, he was on mobile patrol with the Security Group team. It was his further testimony that at about 1.00 a.m., they received a communication through the patrol vehicle’s radio https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1886/eng@2026-09-25 4

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and proceeded to the premises from which the alarm had been raised. He was armed and, in view of the report received, alert to the possibility of danger. At the residence, the gate was opened and the response team met PW1 and PW2. It was his further testimony that PW1 carried a torch and a metal bar and complained that he had been injured, although the appellant could not see any injury in the darkness. PW1 led the appellant and two guards to the bedroom. They found the bedroom door broken and, upon entering, saw a woman bleeding from the face. The appellant saw a person behind the curtains and asked PW1 whether he knew him. PW1 responded that he did not and shone his torch upon the man, whereupon the appellant shot him twice. The appellant testied that the deceased was unarmed and did not attack him. He saw that the deceased had a cut on his head, which neither he nor the guards had inicted. Although he admitted the shooting, he maintained that he did not intend to kill. The dogs barked from inside their kennel. A search disclosed no route by which the suspected intruders might have escaped. The appellant was arrested on 6th June 2013. According to him, he red so that the deceased, if alive, would fall backwards. The deceased had been standing and fell after he was shot. The appellant testied that he believed that he was in danger as PW1 had informed him that about four (4) suspected intruders were in the house. 22. 23. Upon evaluating the evidence, the trial court found that the deceased died from gunshot wounds and that the appellant had admitted being at the scene and ring the fatal shots. The central question was therefore whether, in the circumstances obtaining at the time, the appellant was justied in using lethal force. At paragraphs 36 and 37 of the impugned judgment, the High Court expressed itself as follows: “ 36. In the present case, the accused entered the bedroom of PW4 with the intention of responding to a reported incident of attack. He saw a person moving in the shadow behind the curtain and red two shots killing him instantly. 37. The evidence does not show that the accused was under any imminent danger and even if he were, he ought to have exercised care in the use of rearm. It was open to him to shoot to immobilize and arrest the deceased. To have aimed at the position of the heart and lungs was rather excessive and does not show an intention to immobilize. In the premises, I nd that the accused though lawfully allowed to use force, used excessive force in the circumstances.” On that basis, the High Court concluded as follows: “ 43. 24. In the nal analysis, I nd that the prosecution has not proved that the accused in shooting the deceased had malice aforethought which is necessary ingredient in a charge of murder. Consequently, I nd the accused guilty of the oence of manslaughter contrary to section 202 of the penal code. I apply the provision of section 179(2) of the Criminal Procedure Code and substitute the charge of murder to one of manslaughter. The accused is thus convicted accordingly.” The appellant was consequently sentenced to ten (10) years’ imprisonment. Aggrieved by both conviction and sentence, he lodged the present appeal seeking that the judgment of the trial court be quashed. The appeal is founded on the following grounds, namely that the High Court erred in law and fact by: a. nding that the appellant committed the oence of manslaughter; b. nding that the appellant used excessive force; https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1886/eng@2026-09-25 5

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c. convicting the appellant notwithstanding his defence that, as a police ocer, he acted to protect his life and the lives of others in the face of an armed robbery; d. failing to acquit the appellant despite evidence that he had responded to an alarm concerning armed intruders who had injured occupants of the residence and stolen property; e. failing to appreciate the danger allegedly posed to the appellant, the occupants and the security personnel by a man said to be armed with a metal bar and concealed behind a oor-to-ceiling curtain, while an injured woman lay in the bedroom; f. failing to appreciate that the force used was necessary to avert greater harm to the occupants and the security personnel responding to the alarm; g. failing to appreciate that the appellant had been called to assist a family reportedly under attack by armed assailants and whose members had already sustained injuries; h. failing to appreciate the danger allegedly posed by an unknown number of assailants and, in particular, by a man said to be armed with a metal bar in a bedroom where a woman had been beaten unconscious and the door broken; i. failing to appreciate that the house was unlit when the appellant and the security guards arrived, and that PW1 had identied the deceased to the appellant as a stranger in the home; j. failing to appreciate the commotion within the residence, the barking dogs, the darkness and the resulting atmosphere of tension and fear; k. failing to appreciate the gravity of the reported intrusion, including the alleged theft of a Toshiba laptop and two mobile telephones; l. failing to determine the role PW1 may have played in allegedly setting up the appellant, notwithstanding the direction that the Director of Public Prosecutions investigate PW1’s role in the death of the deceased; and m. failing to acquit the appellant despite the trial court’s doubts concerning PW1’s role in the events leading to the deceased’s death. Submissions by Counsel 25. At the hearing of the appeal, learned counsel highlighted their respective written submissions. The appellant was represented by Ms. Kiagayu, learned counsel from the rm of N. Kiagayu & Co. Advocates. The respondent was represented by Mr. Omondi, Principal Prosecution Counsel. 26. For the appellant, Ms. Kiagayu submitted that the appellant had already served the entire ten-year custodial sentence and was released on 6th February 2020. Counsel emphasized the consequences of the conviction, including the loss of the appellant’s twenty-six (26) years of service in the Police Force. On the merits, counsel argued that the evidence did not establish that the deceased was alive when the appellant and the security guards arrived at the premises. The appellant’s evidence was that he saw the deceased standing behind the curtains in the bedroom. Counsel further contended that the prosecution evidence disclosed a highly charged domestic setting arising from the deceased’s relationship with PW4; that the deceased may already have been fatally assaulted before the appellant arrived; and that the appellant was thereafter used to provide a cover for what had occurred. Reliance was placed on PW16’s evidence that the deceased had sustained severe cut wounds to the head which, given time, could themselves have caused death, although she could not determine the sequence in which the head injuries and gunshot wounds were inicted. Counsel maintained that PW1 stood https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1886/eng@2026-09-25 6

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to benet from the deceased’s death and that the High Court found aspects of PW1’s evidence inconsistent and suggestive of concealment. 27. Counsel further relied on the surrounding circumstances: PW1 did not personally activate the panic alarm; the dogs remained conned; the electricity meter box at PW1’s residence had been switched o while neighbouring premises had power; there was no evidence of forcible entry into the house although the main door was open; and PW1 informed the appellant that a laptop and mobile telephones had been stolen. Counsel submitted that, viewed cumulatively, those circumstances reasonably led the appellant to believe that armed intruders were in the house. Counsel also relied on the serious injuries sustained by PW4 and argued that the appellant acted to protect himself and the other persons present. The shooting, counsel submitted, was not accompanied by an intention to kill. In those circumstances, the conviction for manslaughter was said to be unsafe, particularly given the trial court’s reservations concerning PW1’s role in the events of that night. 28. For the respondent, Mr. Omondi submitted that the prosecution evidence was sucient to sustain the charge and established the essential ingredients of the oence. The evidence placed the shooting inside the bedroom, while the post-mortem report produced through PW16 established the cause of death. Counsel emphasized that the deceased was unarmed when he was shot and had already sustained severe injuries to the head. 29. Mr. Omondi nevertheless invited the Court to scrutinize closely the evidence concerning the events preceding the shooting. It was pointed out that the High Court had found PW2 and PW3 evasive in material respects. Although PW4 maintained that the deceased drove her into the compound and that PW2 opened the gate for them, PW2 denied seeing the deceased enter the premises. Counsel also referred to the severity of the injuries sustained by PW4 and the deceased, the evidence concerning screams from the house, PW2’s admission that he armed himself with a metal bar after PW1 reported the presence of intruders, PW1’s failure personally to activate the alarm, and the fact that the dogs remained conned throughout the incident. 30. Counsel concluded by observing that the appellant had served the sentence in full before the appeal came up for hearing. Determination 31. We have considered the record of appeal, the grounds of appeal, the rival submissions of learned counsel, the impugned judgment and the applicable law. This being a rst appeal from the High Court exercising original criminal jurisdiction, this Court is required to subject the evidence to a fresh and exhaustive re-appraisal, weigh the conicting evidence and draw its own conclusions, while making due allowance for the advantage enjoyed by the trial court in seeing and hearing the witnesses. That duty, classically stated in Okeno v Republic [1972] EA 32, was recently restated by this Court in Chirchir & another v Republic [2025] KECA 1369 (KLR), where the Court emphasized that a rst appellate court must undertake a thorough and fresh examination of the evidence before arriving at its own independent conclusion. We have approached the present appeal on that footing. 32. Upon our own re-evaluation, certain matters are beyond serious controversy. The deceased died; the appellant was the police ocer who discharged the rearm; he red two shots at the deceased; and the medical evidence attributed the deceased’s death to the gunshot injuries to the chest. Causation was therefore proved. The High Court nevertheless found that malice aforethought had not been established and convicted the appellant of the lesser oence of manslaughter. The central issue before us is consequently whether the High Court erred in nding that, although the appellant had responded https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1886/eng@2026-09-25 7

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to a reported security incident, his resort to lethal force was neither necessary nor proportionate and was therefore unlawful. 33. We accept that the evidence concerning the events preceding the shooting contained troubling inconsistencies. PW4's evidence was that the deceased was her boyfriend, that she had brought him to the residence and that PW2 opened the gate for them; the deceased was therefore not an intruder in the ordinary sense. That account diered materially from the information conveyed to the appellant and the security response team that several intruders were inside the house. There were also discrepancies concerning the metal bar: PW5 testied that the deceased appeared to be armed with it and poised to attack the appellant, PW6 saw the metal bar but did not see the deceased holding it, while PW2 admitted that he had armed himself with a metal bar before proceeding upstairs. There was no clear evidence of forcible entry through the perimeter wall, the dogs remained conned, and the deceased had already sustained serious head injuries before the appellant red. Those matters required careful consideration and we have not treated them as insignicant. 34. The law, however, does not require prosecution witnesses to give identical accounts of every detail. What matters is whether the discrepancies concern facts material to criminal liability and whether, viewed in the context of the evidence as a whole, they generate a reasonable doubt as to guilt. Recent decisions of this Court have maintained that distinction. In Kapishi & Another v Republic [2024] KECA 1918 (KLR), the Court reiterated that minor discrepancies do not necessarily vitiate a prosecution case, whereas contradictions on material facts may do so where they create doubt as to guilt. The same general approach is reected in Ng'ethe & Another v Republic [2025] KECA 1549 (KLR), Mutwiri v Republic [2026] KECA 123 (KLR) and Amollo & 2 Others v Republic [2026] KECA 176 (KLR): the decisive question is not whether inconsistencies can be identied, but whether they undermine proof of an essential element of the oence to the extent that the conviction becomes unsafe. 35. We are also mindful of Limakori v Republic [2025] KECA 1348 (KLR), where this Court allowed an appeal after concluding that the discrepancies and deciencies in the prosecution case did not lead to a safe conviction. That authority is important, but its application is necessarily fact-sensitive. In the present appeal, the inconsistencies principally concern the genesis of the incident, the deceased's entry into the premises, the conduct of PW1, and whether the deceased was in possession of the metal bar. They do not displace the admitted and independently proved fact that the appellant red the fatal shots. The question is therefore whether those inconsistencies created reasonable doubt, not as to who shot the deceased or what caused his death, but as to the unlawfulness of the appellant's use of lethal force. 36. That question must be answered within the statutory regime governing the use of force by police ocers. Section 61 of the National Police Service Act, read together with Part A of the Sixth Schedule, requires a police ocer to resort rst to non-violent means where reasonably practicable; force may be employed where such means are ineective or oer no reasonable prospect of achieving the intended result, and the force used must be proportionate to the objective sought, the seriousness of the oence and the resistance encountered. The use of a rearm is subject to an even stricter threshold. It is a measure of last resort and is justied only in the circumstances permitted by law, including the protection of life and defence against an imminent threat of death or serious injury. 37. This Court recently applied that framework with particular rigour. In Chirchir & Another v Republic (supra) the appellants, who were police ocers, contended that the force employed was reasonable and proportionate in the security circumstances confronting them. Upon a fresh re-appraisal of the evidence, this Court upheld their convictions and sentences and dismissed the appeals. The decision underscores that the fact that an ocer is engaged in lawful security duties does not, without https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1886/eng@2026-09-25 8

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more, justify resort to a rearm; the force must satisfy the statutory requirements of necessity and proportionality. Likewise, in Wiyema v Republic [2025] KECA 1574 (KLR), this Court dismissed the appeal of a police ocer who had relied on self-defence after a fatal shooting. The Court treated the National Police Service Act as central to the inquiry and examined whether the use of the rearm was justied by an imminent threat and whether the circumstances supported the defence advanced. 38. Those authorities are particularly instructive here. The appellant was undoubtedly responding to a genuine alarm and, on the information supplied to him, had reason to approach the premises with caution. We also accept that the misinformation that several intruders were in the house is relevant to his state of apprehension. But an ocer's initial apprehension does not conclude the statutory inquiry. The court must still examine the circumstances at the precise point when lethal force was used and determine whether the threat then confronting the ocer was suciently imminent and serious, whether less extreme means were inadequate, and whether the force employed was proportionate. An honest belief in the existence of danger cannot, by itself, convert disproportionate lethal force into lawful force. 39. When the evidence is focused upon that critical moment, the appellant's case encounters substantial diculty. By his own account, he entered the bedroom, saw the deceased behind the curtains and red twice. The record does not establish that the deceased actually attacked the appellant before the shots were red. The deceased had already suered serious injuries. While PW5 stated that the deceased appeared to be holding or aiming a metal bar, PW6 did not see him with it, and PW2’s evidence created further uncertainty about the metal bar and how it came to be at the scene. The appellant was not alone; he was accompanied by security personnel. Most importantly, two shots were red into the deceased's chest, a vulnerable part of the body, without persuasive evidence that the appellant rst attempted, or could not reasonably have attempted, a less extreme means of controlling the situation. 40. The darkness in the room, the report of intruders, the injuries sustained by PW4 and the atmosphere of confusion are all matters favourable to the appellant and we have given them due weight. They explain why he may reasonably have approached the bedroom believing that danger existed. They do not, however, establish that shooting the deceased twice in the chest was a necessary and proportionate last resort. The High Court was entitled to distinguish between the appellant's justication for entering the room armed and the separate question whether the circumstances then confronting him justied lethal force. In our view, that distinction accords with the approach adopted by this Court in Chirchir and Wiyema. 41. The appellant placed considerable reliance on PW5's evidence that the deceased appeared poised to attack with a metal bar. Even assuming that the evidence created a reasonable apprehension of some danger, the inquiry did not end there. The statutory standard governing an armed police ocer requires proportionality between the threat and the force employed. The evidence had to justify the immediate resort to lethal force, rather than merely establish that the deceased may have presented some resistance or potential danger. The trial court found that the circumstances did not demonstrate an imminent threat warranting the ring of two shots into the deceased's chest and that less lethal means of restraint or arrest were available. Upon our own evaluation, we are not persuaded that that conclusion was unsupported by the evidence or contrary to law. 42. We have also considered the serious antecedent injuries sustained by the deceased and PW4. Those injuries undoubtedly demonstrate that a violent incident had occurred before the appellant arrived, and the failure of the evidence to identify with certainty the person responsible for them is troubling. But that uncertainty does not determine the legality of the appellant's subsequent act. The appellant was not convicted for inicting the antecedent injuries; he was convicted because the High Court found that the force he himself used when he encountered the deceased exceeded what was lawful in https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1886/eng@2026-09-25 9

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the circumstances. The prosecution was therefore not required, as a condition precedent to proving the oence of manslaughter against the appellant, to establish who had earlier assaulted the deceased or PW4. 43. The same reasoning applies to the High Court’s direction that the Oce of the Director of Public Prosecutions investigate the role of PW1. We agree with the appellant that the direction reveals that the High Court entertained serious reservations concerning PW1's conduct and the manner in which the incident had unfolded. Those reservations were legitimate and could properly warrant investigation. They did not, however, necessarily generate reasonable doubt as to the appellant's independent criminal responsibility. More than one person may bear legal responsibility for dierent acts forming part of the same sequence of events. The possibility that PW1 misrepresented the situation, participated in antecedent wrongdoing or otherwise merited investigation did not confer upon the appellant an entitlement to use lethal force otherwise prohibited by the National Police Service Act. 44. Put dierently, the issue whether PW1 should have been investigated and the issue whether the appellant's own use of force was lawful are related factually but distinct legally. The High Court was entitled to conclude that PW1's conduct called for further inquiry while at the same time determining, on the evidence concerning the actual shooting, that the appellant used excessive force. We therefore do not consider the investigative direction to be internally inconsistent with the conviction for manslaughter. Nor do we regard it as an acknowledgment by the trial court that the prosecution had failed to prove the appellant's criminal liability beyond reasonable doubt. 45. We have considered whether the inconsistencies, taken cumulatively rather than individually, nevertheless bring the case within the principle applied in Limakori. In our view, they do not. In Limakori, the evidential deciencies went to the safety of the proof upon which the conviction itself depended. Here, the appellant's identity as the shooter, the fact of the shooting and the causal connection between the shots and the death were not in doubt. The remaining issue was justication. On that issue, the appellant's own evidence, the objective circumstances at the point of shooting and the statutory obligations attaching to his status as an armed police ocer supplied a sucient basis for the High Court’s conclusion that lethal force was excessive. The contradictions in the surrounding narrative did not neutralize that evidence. 46. We reiterate that the prosecution bore the burden throughout and that the appellant was not required to prove his innocence. Once self- defence or defence of others arose on the evidence, the prosecution was required to displace it to the required criminal standard. Having independently weighed the evidence, we are satised that it did so. Whatever apprehension the appellant may reasonably have entertained when responding to the alarm, the evidence did not demonstrate an imminent threat of death or serious injury at the moment he red of such character as to make two shots to the chest a necessary and proportionate last resort. The High Court therefore did not err in nding the killing unlawful. 47. The absence of malice aforethought was separately and correctly addressed by the trial court. The High Court acquitted the appellant of the oence of murder as the prosecution had not proved the mens rea required by section 206 of the Penal Code, but found that the unlawful killing amounted to manslaughter under section 202. That distinction was legally sound. A nding that the appellant lacked an intention to murder the deceased did not require an acquittal where his intentional use of excessive and unlawful force caused death. Recent decisions such as Chirchir demonstrate that police ocers may properly be convicted of the oence of manslaughter where a fatal use of force is proved unlawful notwithstanding the absence of malice aforethought. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1886/eng@2026-09-25 10

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48. On sentence, the appellant was sentenced to ten (10) years' imprisonment and, as counsel informed us, has already served that term and been released. No sucient basis has been demonstrated for appellate interference with the sentence. It was imposed after a conviction for an unlawful killing committed through the use of a rearm by a police ocer, and it has in any event been fully served. The fact that the appellant has completed the custodial term does not render the appeal academic, but it does mean that no consequential custodial order is required from this Court. 49. In the result, having subjected the entire evidence to the fresh and exhaustive scrutiny required of a rst appellate court, we are satised that the material inconsistencies and the High Court’s direction that PW1 be investigated did not render the conviction unsafe. The evidence established beyond reasonable doubt that, although the appellant responded to a reported security incident and may initially have apprehended danger, the lethal force ultimately employed was not shown to be a necessary and proportionate last resort within the governing statutory framework. The High Court properly convicted the appellant of manslaughter and we nd no basis for interfering with either the conviction or sentence. 50. Accordingly, the appeal is devoid of merit and is hereby dismissed in its entirety. The conviction for manslaughter and the sentence imposed by the High Court are armed. It is so ordered. DATED AND DELIVERED AT NAIROBI, THIS 25TH DAY OF SEPTEMBER, 2026. P. O. KIAGE …………………..……… JUDGE OF APPEAL JAMILA MOHAMMED …………………..……… JUDGE OF APPEAL W. KORIR …………………..……… 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/2026/1886/eng@2026-09-25 11

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