Owuor v Republic

her heart was writhing and she was dying. As instructed by the appellant, PW1 gave the deceased some medicine and water and later heard the appellant screaming that he had hurt the deceased’s whole body. 3. During the day on 2nd January, 2020, the deceased stayed in bed and covered herself with a white blanket that had a lot of blood. She could not eat any food and only asked for painkillers and ointments. During lunch, PW1 and the appellant called out the deceased but she did not respond and was faint when the appellant tried to feed her milk and oranges. The appellant sent PW1 to call PW3 Evans Owuor and as they returned, the appellant was locking the door and saying they should get the police to help them take the deceased to hospital. The appellant told PW3 that the deceased had wronged him and that he had slapped her with a panga that cut her and, that she was badly o. The appellant turned a bit violent when PW3 asked to see the deceased. PW1, PW3 and the appellant then went to the police station but did not nd the OCS and instead contacted an AP Ocer named Alex. They all went back to the appellant’s home and found that the deceased had passed on. Alex advised them to go to the police station. PW1 was taken to PW3’s house. PW4 James Otieno conrmed seeing the deceased lying dead in bed with a bandage on the head and the appellant having gone to the station at around 7.30 pm. The police later came to the home, took photos, and took the body of the deceased away. The OCS of Kogelo Police Station (PW5) Chief Inspector James retrieved a panga, a broken rungu, blood-stained jeans and the deceased’s hairpiece. The appellant told one of the ocers (PW7) Police Constable Moses Bett that he argued and fought with the deceased on allegations of her indelity and that she sustained injuries and died at 3 pm on 2nd January, 2020. 4. PW2 was with his aunty when he was informed about his mother’s death. According to PW2, the appellant used to beat the deceased often in their presence and had once assaulted and injured PW2. This led to PW2 eeing to Nairobi due to the appellant’s violence. 5. The postmortem of the deceased’s body was conducted on 9th January, 2020 at Siaya County Hospital. The postmortem report showed that the cause of the deceased’s death was brain injury from being hit by a blunt object. 6. The appellant’s unsworn testimony was that they argued with the deceased and he slapped her when she became arrogant. He asserted that the deceased hit him with a rolling pin and while eeing, she got trapped on a wheelbarrow and fell on a stone, after which she went silent. When he checked on her, he noted she was bleeding. He contended that the deceased refused to go to hospital the following day and that he realized she was not okay at around 3 pm and thought she had poisoned herself with medicine. 7. In a judgment dated 18th March, 2020, the trial court found that the prosecution established the oence of manslaughter against the appellant, beyond reasonable doubt. The court accordingly convicted the appellant and sentenced him to 30 years’ imprisonment. 8. Dissatised with the decision, the appellant appealed against his conviction and sentence in the High Court of Kenya at Siaya. The rst appellate court extensively evaluated the evidence and the parties’ submissions before rendering its decision on 16th December, 2020. It was observed that the crux of the appellant’s appeal was that the length of the sentence was too harsh. While nding no justication to interfere with the trial court’s sentence, the rst appellate court ordered that the appellant’s sentence be calculated from the date of his arrest on 2nd January, 2020 because he was not on bond during trial. We observe that in that respect, the High Court correctly upheld section 333(2) of the Criminal Procedure Code. 9. The appellant is still aggrieved and therefore appeals to this Court against both the conviction and the sentence. He prays that the appeal be allowed, the conviction quashed, the sentence set aside, and he be released from custody. The memorandum of appeal dated 15th August, 2025 sets out https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1950/eng@2026-09-25 2

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three grounds of appeal that the learned Judge of the High Court erred in law by: upholding the conviction for manslaughter upon evidence that fell short of the requisite standard of proof beyond reasonable doubt, particularly in its assessment of circumstantial evidence and the causal link between the appellant’s actions and the deceased’s death.; failing to adequately appreciate and apply the legal principles governing the assessment of evidence from a child witness, thereby placing undue weight on the uncorroborated testimony of PW1 without sucient consideration of the inherent vulnerabilities and potential for inuence, which rendered the conviction unsafe as a matter of law; and, by failing to give due legal consideration to all relevant mitigating factors presented by the appellant and by placing undue emphasis on punitive aspects without a corresponding legal justication, thereby violating the principles of proportionality and individualized sentencing. 10. When this appeal came up for plenary hearing before us Ms. Mwalo learned counsel appeared for the appellant and relied on the appellant’s submissions on record. The appellant was virtually present from the Kisumu Maximum Security Prison. Ms. Mumu learned prosecution counsel appeared for the respondent and also relied entirely on the respondent’s submissions dated 5th June, 2026. The matter was therefore canvased by way of written submissions. 11. The appellant’s submissions are dated 15th August, 2025. Ms. Mwalo urged that the prosecution’s case relied heavily on the circumstantial evidence of PW1, who was a minor. That as was held in R v Kipkering Arap Koske & another [1949] 16 EACA 135, circumstantial evidence sustains a conviction under three conditions: (i) the inculpatory facts must be incompatible with the accused’s innocence; (ii) the facts must be incapable of explanation upon any other reasonable hypothesis than that of guilt; (iii) the facts must be proved beyond reasonable doubt. Counsel argued that the direct evidence linking the appellant’s specic actions to the fatal injury was not unequivocally established and remained subject to interpretation. In addition, the absence of blood on the rungu allegedly used to inict a blunt trauma leading to brain injury weakened the direct link. That viewed holistically, the circumstantial evidence did not meet the high threshold required to exclude every other reasonable hypothesis of innocence. 12. Counsel submitted that Section 124 of the Evidence Act provides that no child shall be required to give evidence on oath unless the court deems that the child possesses sucient intelligence and understands the duty to speak the truth. Counsel urged that the subsequent assessment of PW1’s testimony by both the trial court and the rst appellate court must still be scrutinized, particularly regarding corroboration. That in Kinyua v Republic [2002] 1 KLR 256, this Court held that it is desirable to seek corroboration of a child’s evidence where such evidence is uncorroborated and relates to a grave oence. The appellant maintained that PW1’s testimony was largely uncorroborated on crucial aspects of the assault and direct causation of the fatal injury, with the other witnesses relying on information either from him or PW1. 13. It was further submitted that the principles guiding sentencing are well established. That this Court will only interfere with a sentence if satised that the trial court acted on a wrong principle or that the sentence is manifestly excessive in the circumstances of the case (Ogalo S/o Owuora v Republic (1954) 21 EACA 270). Counsel asserted that the trial court did not consider the appellant’s mitigation and personal circumstances and that the rst appellate court failed to balance the punitive aspects with his potential for rehabilitation. That this resulted in a harsh and excessive sentence, which is an error of law. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1950/eng@2026-09-25 3

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14. The respondent’s submissions are dated 5th June, 2026. Opposing the appeal, Ms. Mumu urged that the prosecution proved all the ingredients of the oence of manslaughter beyond reasonable doubt, as was analysed by the trial court and the rst appellate court. She noted that the deceased’s death and the cause of death are neither in doubt nor disputed. Counsel for the respondent further submitted that the appeal on sentence must fail because this is a matter of fact that was duly raised and determined in the High Court. She relied on the Supreme Court’s nding in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) to the eect that this Court is barred from determining questions relating to sentences meted out, except where the High Court has enhanced such sentence. Counsel noted that whereas the maximum sentence prescribed for manslaughter is life imprisonment, it was the trial court’s own discretion to sentence the appellant to 30 years' imprisonment, which sentence was lawful and lenient. Counsel called for dismissal of the appeal and upholding of the appellant’s conviction and sentence by the rst appellate court. 15. We have considered the appellant’s grounds of appeal together with the parties’ respective submissions. Our role as a second appellate Court was stated by this Court in Karani vs. R [2010] 1 KLR 73 as follows: “ This is a second appeal. By dint of the provisions of section 361 of the Criminal Procedure Code, we are enjoined to consider only matters of law. We cannot interfere with the decision of the superior court on facts unless it is demonstrated that the trial court and the rst appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole they were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law.” 16. The issues for our determination in this appeal are: whether the oence of manslaughter was not established beyond reasonable doubt because conviction was based upon uncorroborated evidence of PW1 who was a minor; and, whether the appellant’s sentencing was justied as imposed by the trial Court and upheld by the rst appellate court. 17. The instant appeal is against the judgment of the High Court delivered on 16th December, 2020. It is a second appeal. In entertaining such second criminal appeals we are guided with the provisions of section 361(1) of the Criminal Procedure Code which provides are as follows: “ (1) A party to an appeal from a subordinate court may, subject to subsection (8), appeal against a decision of the High Court in its appellate jurisdiction on a matter of law, and the Court of Appeal shall not hear an appeal under this section— a. on a matter of fact, and severity of sentence is a matter of fact; or b. against sentence, except where a sentence has been enhanced by the High Court, unless the subordinate court had no power under section 7 to pass that sentence.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1950/eng@2026-09-25 4

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18. The submission for the appellant is that the conviction was not sustainable because it was based upon uncorroborated evidence of PW1, a minor. Reliance was upon section 124 of the Evidence Act which states as follows: “ 124. Corroboration required in criminal cases. Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an oence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him: Provided that where in a criminal case involving a sexual oence the only evidence is that of the alleged victim of the oence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satised that the alleged victim is telling the truth.” 19. We have considered the observations by the two courts below that PW1 was telling the truth. The record shows that PW1 was of a tender age of 9 years and in class three. The trial Court carried out voire dire proceedings and found that PW1 was intelligent, knowledgeable and was suitable to give evidence on oath because she knew and understood the nature and seriousness of an oath. The High Court as the rst appellate court reevaluated the trial Court’s proceedings including the evidence by PW1 and conrmed that PW1 was properly certied by the trial Court as a suitable witness in whose presence and full view, the appellant had butchered his wife, the deceased. Accordingly, we are satised that the High Court did not err in upholding the trial Court’s conviction of the appellant for the oence of manslaughter contrary to section 202 as read with Section 205 of the Penal Code. We nd that the appellant was misconceived in invoking section 124 of the Evidence Act and that ground of appeal will fail. 20. Turning to the ground of appeal that the sentence was harsh and excessive, section 361 (1) (a) and (b) of the Criminal Procedure Code are elaborate that we shall not hear an appeal under this section on a matter of fact, and severity of sentence is a matter of fact; or against sentence, except where a sentence has been enhanced by the High Court, unless the subordinate court had no power under section 7 to pass that sentence. 21. It has not been shown that the trial court lacked power to impose the sentence of 30 years imprisonment. Section 205 of the Penal Code states that any person who commits the felony of manslaughter is liable to imprisonment for life. Life imprisonment is the possible maximum sentence and the trial Court exercised discretion to impose 30 years imprisonment which was conrmed by the High Court. Further, the High Court as the rst appellate court did not enhance the sentence. Accordingly, the ground of appeal amounts to a matter of fact and we do not have jurisdiction to entertain it or interfere as urged for the appellant. 22. We accordingly nd that the appeal lacks merits in its entirety and we hereby dismiss it. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2026. ASIKE-MAKHANDIA JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1950/eng@2026-09-25 5

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................................ E. C. MWITA JUDGE OF APPEAL ................................ B. ONGAYA JUDGE OF APPEAL I certify that this is a true copy of the original DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1950/eng@2026-09-25 6

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