Bango v Republic

asked PW4 to go to the said bar. PW4 arrived at the bar using his motorcycle and found the deceased, the appellant and other people quarrelling near the bar’s main gate. There were two groups, each group restraining one of the parties from ghting. PW4 took the deceased inside the bar and then went back outside to talk to the appellant, who informed him that the deceased had had an aair with his wife (a bar counter lady). The said bar was well lit both inside and outside. According to PW4, the deceased was drunk, annoyed, aggressive and had no injuries at that time. PW4 managed to take the deceased to his residence on foot around 500 metres from the bar and told him to lock the door as he left. When PW4 went back to the bar, he found the appellant still quarrelling and saying that he must kill the deceased, as the wife had escaped with his money. The appellant then took a knife from one of the people he was with and together with two other people, rode a motorcycle towards the direction where the deceased lived. PW4 followed on foot and on reaching a corridor inside the deceased’s home, he found the appellant holding a knife in his left hand while the deceased held his stomach with two hands. The two men who accompanied the appellant were outside the house with the motorcycle. The deceased bent and cried, saying that the appellant had killed him, as the appellant went past PW4 while still armed. PW4 noted that the deceased was injured at the center of his stomach near the umbilical cord. It was PW4 who called the deceased’s mother using the deceased’s phone and updated her of what had happened. 4. Further, the prosecution’s case was that PW4 assisted to take the deceased to Sori Lakeside Hospital, and later that night, the deceased’s cousin (PW2) and mother (PW3) transferred him to Homa Bay District Hospital. The incident was reported to the Luanda Police Station and the deceased later on died while undergoing treatment. Dr. Osuri (PW7) conducted a postmortem on the deceased’s body on 11th October, 2018, witnessed by PW3, PW5 and PW6. He opined the cause of death to be apnea as breathing was arrested due to trauma due to raptured diaphragm. On 29th October, 2018, the appellant surrendered himself at Migori Police Station. The investigating ocer (PW6) described the deceased’s home as a rented room in the same premises where the incident occurred, and produced a sketch plan for Capricorn Lounge Bar. The ocer maintained that the stabbing incident happened at Capricorn Lounge Bar and that nothing was recovered from the scene. He did not see any contradictions in the accounts given by PW1 and PW4 during his investigation. 5. When put to his defence, the appellant gave an unsworn statement that on 6th October, 2018, he left work at 5:30 pm, picked his motorcycle at a stage in Sori at about 7:00 pm and got home before 7:31 pm. He only received information, after a week, that he had been charged with murder and thus went to Migori Police Station. He denied committing the oence and knowing the witnesses who testied. DW2 Michael Oure Odeka asserted that on the said 6th October, 2018, he was with the appellant and another person named Calvince. They took a motorcycle at Platonic Stage opposite Platonic Bar and went home. 6. In the Judgment dated 6th October, 2022, the trial Court concluded that the prosecution proved beyond any reasonable doubt that the appellant was armed with a knife which he used to attack the deceased, thus inicting on him a fatal stab wound. The Court found the appellant guilty of murder as charged and accordingly convicted him. The appellant was consequently sentenced to 35 years’ imprisonment. 7. The appellant is aggrieved and dissatised with this decision and preferred an appeal to this Court against both conviction and sentence. The memorandum of appeal dated 24th May, 2026 sets out ve grounds of appeal that the learned Judge erred in law and fact by: convicting the appellant of the oence of murder despite the glaring contradictory testimonies of PW1 and PW4; convicting the appellant whereas there was no direct eyewitness who saw the appellant inict the stab wound on the deceased; inferring malice aforethought by failing to appreciate that the incident occurred during a chaotic https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1967/eng@2026-09-25 2

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melee at night involving heavily intoxicated parties thereby failing to nd that the prosecution had not proved "malice aforethought" as required under Section 206 of the Penal Code; failing to consider weaknesses in prosecution evidence such as inconsistencies in evidence between the testimony of PW3 (who claimed the deceased never drank) and PW4 (who testied the deceased was highly intoxicated), failure to exhibit the weapon used to inict the stab wound and failure to call the barmaid to testify; and, the sentence of 35 years imprisonment was excessive and harsh in the circumstances. 8. The appellant prays that: (a) the appeal be allowed and the judgment or decision of the trial Court delivered on 6th October, 2022 be quashed and be set aside; (b) consequent to prayer (a) being granted, the appellant be set at liberty forthwith; (c) in the alternative, the appeal be allowed on the limb that the appellant lacked malice aforethought in committing the oence and the appellant be convicted of the lesser oence of manslaughter; and (d) subsequent to the conviction of manslaughter, this Honourable Court be pleased to resentence the appellant. 9. In the appellant’s submissions led in person are dated 24th May, 2026 and subsequently led by counsel dated 3rd July, 2025 respectively. It is submitted that the trial Court reached an erroneous conclusion by overlooking fatal material contradictions in the prosecution’s case and applying the wrong legal threshold to the evidence adduced. That a conviction cannot safely stand where evidence of key witnesses is contradictory in material particulars. That the contradictory evidence of PW1 and PW4, who were the primary visual witnesses, regarding the scene of the crime goes to the root of the circumstantial evidence used to convict the appellant. The appellant relied on the decision in Chege & 3 others v Republic (Criminal Appeal 23, 34 & 35 of 2022 (Consolidated)) [2023] KECA 466 (KLR) to posit that for circumstantial evidence to sustain a conviction, it must point irresistibly to the guilt of the accused and be incompatible with any other reasonable hypothesis of innocence. The appellant argued that in this case, the trial court failed to consider that in a chaotic, drunken brawl involving up to 10 people, another party could have inicted the injury. That also, with no weapon having been recovered at the scene, the chain of evidence was broken, and the circumstantial evidence did not therefore meet the rigorous threshold required to sustain a conviction. 10. Further, the appellant urged that the trial Court erred by attempting to merge the two irreconcilable narratives of PW1 and PW4. That the prosecution failed to call the other patrons present to clarify this discrepancy, raising the adverse inference under Section 119 of the Evidence Act that such evidence would have been unfavourable to the prosecution. He cited the court’s holding in John Mutua Munyoki v Republic [2017] KECA 376 (KLR) that contradictions that go to the root of the prosecution's case must be resolved in favour of the accused. 11. The appellant further submitted that under Section 206 of the Penal Code, a murder conviction requires strict proof of malice aforethought. That the prosecution’s evidence established that the fatal incident arose from a spontaneous, drunken brawl at a nightclub over a woman, and could not therefore have been a calculated premeditated murder. He urged that this Court has held that where an accused is intoxicated or acting under the heat of passion in a sudden quarrel, the capacity to form the specic intent (malice aforethought) is negated. He maintained that the evidence before the trial court could only sustain a charge of manslaughter. 12. As regards the sentence, it was the appellant’s submission that following the Supreme Court's decision in Francis Karioko Muruatetu & another v Republic (2017) eKLR, courts are now mandated to apply https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1967/eng@2026-09-25 3

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proportionality in sentencing for capital oences. It was noted that the appellant was a 28-year-old rst oender, with a young family and no prior criminal record. That the incident was a tragic consequence of a drunken love triangle. That a 35-year sentence amounts to a life sentence for the appellant, which defeats the goal of rehabilitation. 13. The respondent opposed the appeal through the written submissions by Ms. Ikol, learned Senior Assistant Director of Public Prosecutions and dated 3rd June, 2026. The respondent urged this Court to nd that the appellant was properly identied and placed at the scene by PW1 and PW4. It should be noted that the deceased further made a dying declaration within the meaning of Section 33 of the Evidence Act, as testied to by PW4. That the deceased’s statement clearly pointed to the appellant as his attacker. The respondent relied on the cases of Simon Kiptum Arap Choge & 3 others v Republic [1985] eKLR and Phillip Nzaka Watu v Republic [2016] eKLR, in which the court armed that statements made by a deceased person relating to the cause or circumstances of death are admissible in evidence as an exception to the rule against admissibility of hearsay evidence. 14. It was submitted that the appellant followed the deceased and stabbed him after they had been separated. That the appellant had an opportunity to abandon his plan but still followed the deceased with a clear intention of murdering the deceased. It was argued that the injuries suered by the deceased were severe and indicated malice aforethought, meaning the appellant’s conviction was safe. Regarding the sentence, the respondent asserted that the 35-year imprisonment imposed by the trial Court was justied in the circumstances, and was within judicial discretion. 15. At the plenary hearing of the appeal, Mr. Ogenga learned counsel appeared for the appellant, who was also present on the virtual platform from prison. Relying on the written submissions on record for the appellant, Mr. Ogenga made oral submissions and reiterated that the appellant’s conviction was on circumstantial evidence, with no direct evidence from any of the witnesses that the appellant stabbed the deceased person. That the circumstantial evidence in this regard does not give a complete chain of events linking the appellant to the oence, and it is also not clear where exactly the stabbing took place. Counsel urged that the contradictory evidence between PW1 and PW4 is so manifest that the correct version of events cannot be ascertained. Mr. Ogenga further informed this Court that the appellant had completely abandoned the defence of alibi. He argued that the incident having emanated from a love triangle and all parties having been inebriated, the 35 years’ imprisonment is harsh and excessive. That if this Court is to uphold the appellant’s conviction, it should alternatively look at the sentence imposed by the trial Court. 16. Mr. Okeyo, learned prosecution counsel holding brief for Ms. Ikol, appeared for the respondent and reiterated the respondent’s submissions dated 3rd June, 2026 in response to Mr. Ogenga’s oral submissions. 17. This is a rst appeal. Our primary role is to re-evaluate, re- assess, and re-analyze the entire evidence on record so as to arrive at our own independent conclusions while acknowledging that the trial court had the advantage of hearing and seeing the witnesses, as was held in Okeno v Republic (1972) EA 32 thus: “ An appellant on a rst appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The rst appellate court must itself weigh conicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a rst appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's ndings and conclusions; it must make its own ndings and draw its own conclusions. Only then can it decide whether the magistrate's ndings should be supported. In doing so, it should make allowance for the fact that the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1967/eng@2026-09-25 4

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trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.” 18. The issues for determination in this appeal are whether the prosecution established the ingredients of murder beyond a reasonable doubt, to sustain the conviction as was arrived at by the trial Court, especially in view of the appellant’s alleged contradictory evidence by PW1 and PW4; and, whether the imposed sentence of 35 years in prison was harsh and excessive. 19. The appellant alleges contradictory testimonies by PW1 and PW4 about the scene at which the appellant stabbed the deceased. PW1 testied that he was a DJ at Caprizon Club in Sori. Further he recalled 6th October, 2018 at around 11.00pm when he was winding up his work when the deceased (whom he referred to as Chief) who was his friend and neighbour came running into the bar. PW1 testied that he also saw the deceased stand next to the main contact and the appellant followed the deceased. The deceased then raised his voice and stated that the appellant had stabbed him with a knife. PW1 then saw the appellant remove the knife from the deceased’s stomach and thereafter the deceased ran out from the bar towards his house which was just nearby and the appellant ran out of the bar as well. PW1 picked two empty bottles and followed the appellant but found that the appellant had boarded a motor cycle and left. The deceased was taken to Sori Lakeside Hospital. PW1 had known the deceased for one year and the appellant for three years. 20. On the other hand, PW4 testied that he was a motor cycle rider and he knew the appellant over a long period of time and the deceased was PW4’s cousin. Further, on 6th October, 2018 at around 11.00pm the deceased called PW4 on the cell phone and stated that somebody was threatening his life.PW4 rode to Platonic Bar in Sori and which was about 500 metres away. PW4 testied that he found the appellant and the deceased in a crowd quarrelling and the appellant stated that the dispute could not be discussed because the deceased had an aair with the appellant’s wife who worked as a Bar Counter Lady.PW4 also testied that the deceased was drank and PW4 decided to walk and take him home to rest. Upon returning to Platonic Bar for his motorcycle, PW4 found the appellant still quarrelling that he must kill the deceased because the wife had escaped with appellant’s property and Kshs.100,000.00. PW4 saw the appellant take a knife from one of the persons present and head towards the deceased’s residence. PW4 followed and before reaching and along a corridor, he saw the appellant holding a knife on his left hand and the deceased holding his stomach with two hands, bent and crying mentioning that the appellant had killed him. PW4 then rushed the deceased to Sori Lake Side Hospital. 21. We have revaluated the testimonies by PW1 and PW4. As urged for the respondent, both witnesses placed the appellant at the scene of the murder incident, identied the murder weapon as a knife, both witnesses knew the appellant and the deceased, and the coherent evidence was that the appellant had unlawfully stabbed the deceased. The evidence was that the appellant deliberately set out to unlawfully kill the deceased when at Platonic Bar the deceased and the appellant quarrelled over a woman. PW1 saw the appellant remove the knife from the deceased’s stomach and PW4 saw the appellant holding the knife and the deceased holding his stomach with both hands. Taking the testimonies cumulatively, we are satised that the appellant was at the scene, he was the one who stabbed the knife in the deceased’s stomach, and thereby, caused the unlawful death of the deceased. PW7, Dr. Kevin Osuri carried out the post-mortem and conrmed the death of the deceased, found that the deceased’s diaphragm was perforated, liver and stomach were raptured, and there was an attempt to repair them. He opined that the cause of death was traumatic apnea which means that the breathing was arrested due to trauma to the raptured diaphragm. We are satised that the death of the deceased was not in doubt and the cause of the death was consistent with the evidence of PW1 and PW4 that the weapon was a knife and the deceased underwent treatment after the episode. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1967/eng@2026-09-25 5

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22. The appellant has not established a basis for us to interfere with the trial Court’s ndings thus: “ 29. What is not in dispute is the fact that PW1 and PW4 witnessed the incident at dierent stages or times. Although PW1 saw accused chase the deceased, he only managed to see when the accused pulled the knife from the deceased’s stomach. On the other hand, PW4 who had followed the accused to the deceased’s residence, said before reaching, and as he was along the corridor, he saw accused person holding a knife in his left hand and the deceased was holding his stomach with two hands. Deceased was bent crying and shouting the name of the accused persons as the one who had killed him. It means that PW1 witnessed the incident before PW4 did. PW1 conrmed in his testimony that PW4 Dickens is one of the people who took deceased to hospital thus placing PW1 at the scene.” 23. Section 206 (a) of the Penal Code states that malice aforethought shall be deemed to be established by evidence proving an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not amongst other circumstances. In the instant case the record shows that the appellant stated that he was going to kill the deceased and despite interventions he proceeded to inict the grave injuries resulting in the deceased’s unlawful death. We are satised that the trial Court did not err in nding that the respondent had established malice aforethought beyond all reasonable doubt. 24. As submitted for the respondent we are satised that the respondent proved beyond reasonable doubt the death of the deceased and the cause thereof; that the appellant caused the act of stabbing the deceased using a knife that resulted in the death; and, the appellant possessed malice aforethought. We accordingly uphold the trial Court’s nding of the appellant guilty of the oence of murder as charged and his conviction under Section 322(1) of the Criminal Procedure Code. 25. We further observe that the defence of intoxication as at the time of the oence or provocation on account of the alleged love triangle was not urged before the trial Court and cannot therefore fall for our consideration and determination in the instant appeal. 26. Turning to the sentence of 35 years imprisonment, the appellant submits that it was harsh and excessive in view of the fact that the appellant was a 28-year-old rst oender, with a young family, and no prior criminal record. Further, the incident was a tragic consequence of a drunken love triangle. He urged that the 35-year sentence amounts to a life sentence for the appellant, which defeats the goal of rehabilitation. 27. The Supreme Court in Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] KESC 31 (KLR) stated that in sentencing for the charge of murder, both aggravating and mitigating factors would guide the court including age of the oender; being a rst oender; whether the oender pleaded guilty; character and record of the oender; commission of the oence in response to gender-based violence; the manner in which the oence was committed on the victim; the physical and psychological eect of the oence on the victim’s family; remorsefulness of the oender; the possibility of reform and social re-adaptation of the oender; and, any other factor that the court considers relevant. 28. The mitigating factors in favour of the appellant are that he was a rst oender, he was 28 years of age with a chance to learn from his mistakes and to reform, he related well with the community and the charge was inconsistent with expectations, and the circumstances were that the oence was in the situation that the appellant and the deceased were in an intoxicated environment at the bar. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1967/eng@2026-09-25 6

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The aggravating factors were that the appellant pursued the deceased and inicted injury leading to the death irrespective of the interventions mounted to prevent the unlawful act, and while he was subsequently remorseful, his actions were irresponsible as inconsistent of being married with children and killing over alleged love triangle over a woman who was not his wife. Taking into account the aggravating and mitigating factors, we reduce the sentence from the 35 to 20 years imprisonment computed including the days the accused was held in remand custody from date of surrender for arrest on 29th October, 2018 to date of release upon approval of surety on 19th December, 2018 per section 333(2) of the Criminal Procedure Code. 29. The upshot is that we uphold the appellant’s conviction for the oence of murder contrary to section 203 as read with section 204 of the Penal Code and partially allow the appeal by reducing the sentence from the 35 to 20 years imprisonment computed including the period from 29th October, 2018 to the date of release upon approval of surety on 19th December, 2018. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2026. ASIKE-MAKHANDIA ………………………… JUDGE OF APPEAL 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/2026/1967/eng@2026-09-25 7

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