David Mawira Kinoti v Republic

appellant’s defence without proper consideration; and failing to Page 2 of 16

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consider that the prosecution failed to prove the case beyond reasonable doubt. 2. As this is a first appeal, this Court is obligated to reconsider, analyse and re-evaluate the evidence afresh and draw its own conclusions while bearing in mind that it did not see or hear the witnesses testify. This principle was stated in Republic vs Aduol alias Bonny & 4 Others [2026] KECA 155 (KLR), which referred to the case of Okeno vs Republic [1972] EA 32, where this Court stated that the mandate of a first appellate court is to undertake a fresh and exhaustive examination of the facts and reach its own decision on the evidence on record. 3. The case proceeded to trial, the appellant having pleaded not guilty to the charge and the prosecution called 6 witnesses. In summary, the evidence presented to the trial court was as follows: PW1, Emily Ngugi testified that on 27th August 2011, at approximately 7:00 pm, while she was serving coffee to her customers, including PW2, Joakim (the deceased), and PW3, the appellant arrived and sat on a bench about four meters away. She had a lantern on the shop counter and could see clearly. 4. After she served the deceased coffee, he moved towards where the appellant was sitting. The deceased returned to the shop window and cried out to PW1 that he was dying before collapsing. PW1 heard PW3 shouting that the appellant had Page 3 of 16

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stabbed him before also falling near the deceased. PW1 then went outside and Page 4 of 16

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shouted that it was the appellant who was stabbing people, prompting him to flee the scene. 5. While PW3 was later taken to the hospital by the appellant's brother, Mwiti, the deceased died at the scene, and the police eventually collected his body. PW1 noted that while all the men involved were regular customers, she was unaware of any existing disputes or the specific nature of the relationship between the appellant and the other three men. 6. PW2, Charles Mutuma Mungeria, testified that on 27th August 2011 at about 7:30 pm, he was at the kiosk with PW3 and the deceased, when the attack took place. After ordering tea from PW1, he remained at the counter while his companions moved to a bench approximately five meters away, where the appellant was seated. PW2 turned and saw both the deceased and PW3 approaching him, while saying that the appellant had stabbed them before fleeing the scene. 7. He saw the appellant run away. The deceased fell. Upon checking on the deceased, PW2 lit a match and discovered he had died and had a stab wound to the left side of his chest. PW2 testified that there was light in the shop, but not where the deceased fell, about 3 steps away from him. PW1 started to scream. Police arrived and took the body of the deceased to the mortuary. PW3 was also taken to the hospital. He stated that he knew the appellant prior, as he was his neighbour. During cross-examination, PW2 testified that he witnessed the appellant stabbing the deceased. Page 5 of 16

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8. PW3, Julius Muthaura Jackson, testified that on 27th August 2011, they had been working before stopping at PW1’s shop to buy tea. The deceased and PW3 were first served and went to sit on a bench about 5 meters away, where the appellant was also sitting. He testified that while seated on the bench, the appellant stood and stabbed the deceased in the chest and then stabbed PW3 on the right side of his chest. PW3, who survived the attack but was hospitalised, identified the appellant as the assailant, noting he had known him previously. During cross-examination, PW3 clarified that although it was night, it was not yet very dark, and he was able to see the events clearly despite discrepancies raised regarding his police statement. 9. PW4, Corporal Japheth Musyimi, the investigating officer, testified that on 27th August 2011, he visited the scene at Kaurone village, with PC Charles Rono, PC Kuuna, the Deputy OCPD, and the DCIO, where they found the body of the deceased with blood oozing from the neck outside PW1’s shop. He interrogated people at the scene of the crime, who informed him that the appellant had stabbed the deceased, had injured others and had fled. Following information that the appellant was hiding in a forest, he was arrested on 1 st September 2011. 10. PW5, Dr James Kihumba, produced the post-mortem report prepared by his colleague, Dr Diana, which revealed a 5 cm crescent-shaped deep cut on the chest and internal injuries, including a stabbed left lung and shattered heart and great Page 6 of 16

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vessels. The cause of death was indicated as massive Page 7 of 16

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haemorrhage secondary to deep lacerations of the heart and great vessels. 11. PW6, PC Charles Rono testified that he escorted the family of the deceased to the mortuary to identify the body and also went to the scene of the crime, where photographs were taken. 12. When placed on his defence, the appellant elected to give sworn evidence and testified that on 27th August 2011, at approximately 7:30 p.m., he was at Rukuriri near Embu Teachers College sourcing fruit for his business following a lead from an acquaintance. He explicitly denied knowing the deceased or PW1, asserting that PW1 was mistaken in her identification of him near her kiosk. The appellant claimed that he was arrested on 1st September 2011, in Embu, while working, after his brother called to arrange a visit. 13. The learned Judge, having considered the evidence by both the prosecution and the defence, was satisfied beyond any doubt that it was the appellant who caused the death of the deceased and escaped. The appellant was found guilty of the offence as charged and convicted. He was sentenced to death. 14. The appeal proceeded for hearing on the Court’s virtual platform by way of written submissions. Learned counsel for the appellant filed submissions and a list of authorities, both dated 26th February 2024 and focusing mainly on three Page 8 of 16

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grounds; namely, failure by the trial Judge to recognise that the appellant was not present insufficiency of the lighting used Page 9 of 16 during the crime; the

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for identification, and the improper rejection of the appellant’s alibi defence. 15. Counsel urges that the prosecution's case was fraught with inconsistent testimonies. He contended that, while PW2 and PW3 claimed to see the appellant stab the deceased, PW1 did not see the attacker, and PW3 admitted to having no torch during the incident, which occurred at night between 7:00 pm and 7:30 pm. He asserts that the trial court's reliance on witnesses' recognition was unsafe, given these discrepancies and the minimal visibility at the scene. In support, he relies on Wamunga vs Republic [1989] KECA 47 (KLR), where this Court held that when identification or recognition is the only evidence against a defendant, a trial court must carefully examine it to ensure the circumstances are favourable and free from error before basing a conviction on it. 16. Furthermore, counsel asserts that the trial court dismissed the appellant’s alibi that he was in Embu at the time of the murder, without cogent reasoning, despite the prosecution failing to refute his arrest in Embu or provide material evidence placing him at the crime scene. In support of this argument, counsel relies on Erick Otieno Meda vs Republic [2019] eKLR, where this Court held that the appellant carries no burden of proof for an alibi. 17. Regarding the sentence, the appellant argues that the death penalty was excessive and punitive for a 22-year-old first-time offender, especially as he was not allowed to mitigate. Page 10 of 16

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Counsel Page 11 of 16

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urges the Court to vary the sentence should the conviction stand as guided by the case of Francis Karioko Muruatetu & Another vs Republic [2017] eKLR (‘Muruatetu’). 18. Learned counsel for the respondent filed submissions dated 13th June 2025 and submits that the appellant was placed at the scene by three witnesses (PW1, PW2, and PW3) who hailed from the same locality, noting that the deceased even named the appellant as his assailant before succumbing to his injuries. Furthermore, counsel maintains that any inconsistencies in witness testimony were trivial and did not meet the legal threshold to create reasonable doubt or prejudice the case. In urging this point, counsel relies on Joseph Maina Mwangi vs Republic, Criminal Appeal No. 73 of 1993, where the court held, inter alia, that in any trial there are bound to be discrepancies. 19. Addressing the issue of identification, counsel emphasises that this was a case of recognition rather than mere visual identification of a stranger, as the witnesses knew the appellant well and asserts that the High Court correctly applied the law by relying on the evidence of recognition. In support of this argument, he relies on Reuben Taabu Anjononi, Benjamin Akisa Anjononi and Monya Anjononi vs Republic [1980] KECA 23 (KLR), where this Court held satisfactory, that recognition of more assuring and identification of a stranger. Page 12 of 16 an assailant more is more reliable than

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20. Regarding the burden of proof, counsel relies on the case of Anthony Ndegwa Ngari vs Republic [2014] KECA 424 (KLR), where the Court listed the essential elements of murder, including the fact of death, the unlawful nature of the act, and the presence of malice aforethought. Counsel submits that in the present case, all these were proven beyond any reasonable doubt, specifically noting the appellant's use of a knife was a clear intent to kill. 21. Finally, counsel dismisses the appellant’s sworn defence as a weak afterthought, arguing that his claim of not knowing the witnesses was never raised during cross-examination. Consequently, counsel requests that this Court uphold both the conviction and the sentence. 22. Having carefully analysed the record, the submissions by respective counsel, cases cited and the law, we find that the issues that fall for determination in this appeal are: a. Whether the prosecution proved the offence of murder beyond reasonable doubt. b. Whether the evidence of identification was reliable. c. Whether the defence reasonable doubt. d. Whether the Court should interfere with the sentence imposed. of alibi raised 23. To prove a charge of murder, the prosecution has the singular task of proving three ingredients to secure a conviction. Page 13 of 16

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First Page 14 of 16

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that a death occurred; second, the death was caused by the unlawful act of commission or omission by the accused; and proof of malice aforethought as set out by this Court in Moses Kadenge Dadu vs 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. 24. In this appeal, the prosecution called three key witnesses who were present at the scene of the crime. PW2 and PW3 were categorical that they saw the appellant stab the deceased. PW1, though she did not see the appellant in the act of stabbing, placed him at the scene and witnessed the immediate aftermath, including the deceased collapsing and PW3 shouting that the appellant had stabbed him. The medical evidence supported the prosecution’s narrative. The post-mortem confirmed deep stab injuries that caused massive haemorrhage, leading to the death of the deceased, who sustained two fatal stab injuries. 25. Malice aforethought may be inferred from the nature of the weapon used, the part of the body targeted, and the manner of attack as held in Bonaya Tutu Ipu & Another vs Republic [2015] KECA 335 (KLR), where this Court cited the case of Rex vs Tubere s/o Ochen [1945] 12 EACA 63, a decision consistently applied by this Court, which sets out the factors to consider in determining malice aforethought, including the weapon used and the manner of its use. Page 15 of 16

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26. In this case, the deceased sustained deep injuries to the chest, causing a shattered heart and great vessels. PW3 was also stabbed in the chest. The chest is a vulnerable part of the body, and a stab inflicted on this part of the body would occasion severe injury and, in many instances, would be fatal. Related to the injuries sustained, the trial court held: “...Section 206 of PC defines malice aforethought as an intention to cause death or cause grievous harm. In this case, PW2 and 3 did not know the reason for the attack. It was sudden. On that evening, there was no dispute between the accused and the deceased, or between the accused and PW3. The accused, however, aimed at very vital organs of the deceased. The Doctor found a deep stab wound passing through the right lung and the heart, and the great vessels were shattered. In my view the stab was meant to do grievous harm or cause death, which it did. Malice aforethought flows from that act. I am satisfied beyond any doubt that it is the accused who caused the death of the deceased and escaped. I find him guilty of the offence as charged and convict him under Section 322 of CPC.” 27. We find that the appellant’s act was intentional and aimed at causing death or grievous harm to the deceased. Upon reevaluation of the evidence, we find no basis to fault the learned Judge’s finding that the appellant inflicted fatal injuries upon the deceased. 28. In considering the identification of the perpetrator of the offence, the trial Judge stated: Page 16 of 16

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“In the instant case, we do not have one witness but three people who knew the accused. Even though the circumstances may have made identification difficult, the three of them could not have made a mistake. I have seen the photographs taken of the scene and the bench on which the deceased, PW3 and the accused sat, and it is quite close to the shop where PW1 and (sic) there was light. In the instant case, it is not a case of identification but recognition because I have no doubt that the three witnesses knew accused very well.” 29. This Court has repeatedly held that evidence of recognition by people known to an accused is more reliable than identification of strangers. On recognition, the locus classicus case of Anjononi vs Republic (supra), held that: “…recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.” 30. In this case, the evidence of PW2 and PW3 was that they knew the appellant prior to the incident. This was therefore a case of recognition. Where eyewitnesses clearly saw the attack, a conviction may properly be based on their evidence. In Cheboi vs Republic [2026] KECA 934 (KLR), this Court held that: “Where the only evidence against a defendant was evidence of identification or recognition, a trial court was enjoined to examine such evidence carefully and to be Page 17 of 16

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satisfied that the circumstances identification were favourable Page 18 of 16 of

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and free from possibility of error before it could safely make it the basis of a conviction.” 31. It is noteworthy that the incident occurred at about 7:00 pm. PW1 testified that she had a lantern on the counter and could see the people. PW2 testified that there was light in the shop and he witnessed the stabbing. PW3 equally testified that although it was night, it was not yet too dark, and he saw the appellant stab the deceased and then stab him. 32. The appellant was seated on the same bench as the deceased and PW3, which was at any rate a fairly close distance. PW3 was stabbed immediately after the deceased, meaning the witness had proximity and a direct opportunity to observe the attacker. Evidence of visual identification in difficult conditions must be examined carefully. We have done so, and we find that the conditions were favourable, given proximity, the lantern light, and the fact that the witnesses and the appellant were known to each other. We, therefore, find that the evidence of recognition was safe and free from error. 33. On whether the defence of alibi was properly rejected, we note that the appellant raised an alibi defence claiming he was in Embu at the time of the offence. The law is settled that an accused person bears no burden to prove an alibi, and the prosecution must dislodge it by evidence. This was restated by this Court in Kimotho Kiarie vs Republic [1984] KECA 65 (KLR), that an alibi should be weighed against the prosecution evidence. Page 19 of 16

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34. However, an alibi that is raised late in the proceedings and is inconsistent with the prosecution's evidence may be rejected if the prosecution's evidence is strong and credible. This Court in Mugini & Another vs Republic [2025] KECA 480 (KLR) held that: “From the record, we note that the defence was raised too late in the day, at the time the appellant was giving his sworn statement of defence. Thus, the prosecution was not accorded sufficient time to investigate it. That notwithstanding, it appears to us that the prosecution made a strong and watertight case against the appellant, that displaced the alibi. The evidence of the prosecution witnesses corroborated each other and formed a clear and logical sequence of events establishing the appellant’s presence at the scene of crime and not otherwise.” 35. On the alibi, the trial court stated: “The accused raised the defence of an alibi, that he was in Embu where he lives, carrying on business of selling fruits. No doubt PW4 told the court that after being informed that the accused was the perpetrator, he visited his home but did not find him. Acting on information, he arrested the accused in Embu on 1/9/2011. Even when an accused raises an alibi, the onus to prove the case beyond any doubt still rests on the prosecution to prove its case and at no stage does the burden shift to the accused. In this case, the court already dismissed accused’s assertion that he did not know PW1 and PW3. The witnesses even mentioned having asked accused’s own brother, Mwiti to take PW2 and the deceased to hospital after Page 20 of 16

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the injury. That Page 21 of 16

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evidence was never contested. I also find that accused’s alibi comes as an afterthought. I am guided by the above cited authority. The principle of testing alibi defence is analysing the entire evidence adduced by both sides and satisfying oneself whether the story given by an accused person creates doubt in the veracity of the prosecution case. I have tested the alibi defence by the accused person and find that it has not created any doubt in the credibility of the prosecution case. If there are any contradictions they do not go to the root of the case.” 36. From the record, the evidence of PW2 and PW3 placed the appellant squarely at the scene. PW1 equally placed him at the kiosk shortly before the stabbing. The appellant’s defence that he did not know any of the witnesses was contradicted by the witnesses who knew him and identified him by name. We find no reason to depart from the findings of the trial court in relation to the alibi and equally find that the appellant’s alibi did not raise any reasonable doubt against the strong prosecution evidence against him. 37. On whether inconsistencies in the evidence of the prosecution witnesses were fatal, and especially on who saw the stabbing. Not every contradiction or inconsistency is fatal to a case, as stated in Mohammed & Another vs. Republic [2018] KECA 743 (KLR). The Court held that contradictions which do not go to the root of the prosecution's case and do not occasion prejudice are curable and may be ignored. Page 22 of 16

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38. In the present case, PW1 did not witness the stabbing but PW2 and PW3 did. PW1’s testimony corroborated the presence of the appellant and the immediate aftermath, including PW3’s alarm that the appellant had stabbed him. These differences do not weaken the prosecution's case; they are a natural sequence of events when witnesses observe different aspects of the same event. We find that any discrepancies were minor and did not shake the core of the prosecution's case. 39. On the sentence, it is noteworthy that it was passed before the Muruatetu case (supra), when the courts were of the view that only the death sentence was the lawful punishment in a case of murder. The jurisprudence has since shifted. Though the death sentence remains lawful, it is not the only available sentence. A court can mete out a different sentence depending on the circumstances leading to the offence, consider any aggravating circumstances, and, unlike before, receive and consider any mitigating circumstances. As this is a pre-Muruatetu case, no mitigation was considered. 40. The circumstances of the case disclose a brutal attack on the deceased, where the deceased sustained fatal stab injuries, which shattered his heart and injured his blood vessels, leading to his instant death. The offence was certainly grave and deserving of a severe custodial sentence. We have, on the other hand, considered the circumstances of the case, the fact that the appellant was only 22 years old at the time of commission of the offence, and we are persuaded that the Page 23 of 16

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interests of justice would Page 24 of 16

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be served by substituting the death sentence with a lengthy custodial term. 41. We accordingly dismiss the appeal against conviction. The appeal succeeds only to the extent that we have set aside the death sentence and substituted therefor a sentence of thirty (30) years' imprisonment, to run from the date the appellant was presented to court. Dated and delivered at Nyeri this 25th day of September, 2026. W. KARANJA ........................................ . JUDGE OF APPEAL S. ole KANTAI ........................................ .. JUDGE OF APPEAL ALIARONI ........................................ .. JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. Page 25 of 16

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