Murri v Republic

lying on the ground with multiple cuts all over the body with the appellant still cutting him with a panga. He grabbed the panga from him and tied him up with a rope with the assistance of the other members of the public who had gathered thereat. He noted that the appellant too had been cut on the left leg during the scue. He also acknowledged that his family and that of the appellant had for long been embroiled in a dispute concerning their respective parcels of land. 4. PW3, John Ole Rumbe, the senior Chief of the Osupuko location, was informed by PW2 of the assault. He in turn called police ocers from Kilgoris police station who came to the scene with an ambulance. They found the deceased lying at the gate of PW2 with multiple cuts and the appellant tied up with ropes but with an injury on the left leg. Both were then taken by the police ocers to the nearby Transmara District Hospital. 5. PW4, PC Gregory Malakwen, the investigating ocer, received a report of an assault from PW3 involving both the deceased and the appellant whilst at Kilgoris police station and left for the scene. Upon arrival, he noted that the deceased had multiple injuries while the appellant had a leg injury. His inquiries revealed that the appellant had cut the deceased with a panga due to a land dispute between the families of PW1, PW2 and the appellant. He thereafter evacuated both the deceased and the appellant to Transmara District Hospital for treatment and management as they were all seriously injured. The deceased later transferred to Kisii Teaching and Referral Hospital from where he passed on. Upon conclusion of the investigations, he preferred the information against the appellant. 6. PW5, Dr. Obosi Leah Okoro, a pathologist, produced the post-mortem report that had been prepared by Dr. Benjamin Ndibile. The report showed that the deceased had sustained multiple lacerations on the head, face, forearm, chin, and other parts of the body, with fractures and septic wounds. The cause of death was given as multiple cut wounds with a sharp object and meningitis due to subdural eusion mixed with pus. 7. Put on his defence, the appellant elected to give sworn statement, in which he stated that on the material day as he walked to a nearby kiosk to buy some foodstu and as he went past the gate of PW2, someone hiding in a fence who turned out to be the deceased, insulted him and menacingly advanced towards him with a panga. He swung it and it cut him on the left leg and he fell down. 8. In the ensuing struggle, PW1 and PW2 came to the scene, intervened in the scue and restrained him by tying him with ropes. Police ocers from Kilgoris police station were summoned who came and rushed him and the deceased to Transmara District Hospital where he was admitted whilst unconscious. When he came to, he was arrested and confronted with an information he knew nothing about. He maintained that he was a victim of attack and not the aggressor. To corroborate his defence, the appellant called three witnesses, Nelly Nashipai (DW2), his wife, Elizabeth Murri (DW3) and Martha Morba (DW4). They all attested to the fact that they were attracted to the scene by the skirmish and on reaching the scene they found the appellant and deceased in combat. 9. The trial court after considering the totality of the evidence adduced, addressed several issues rst, whether the deceased had died and the cause thereof. Relying on the post-mortem report the trial court was satised that the deceased sustained multiple cut wounds inicted by a sharp object, and that meningitis developed as a complication of those injuries. The trial court was thus satised that the death of the deceased and the cause thereof was proved. 10. Next, was whether the death was caused by the unlawful act of the appellant. The testimonies of PW1 and PW2, both of whom were considered eyewitnesses to the crime, were found credible and consistent in placing the appellant at the scene, armed with a panga, and actively cutting the deceased. PW3, corroborated that evidence, stating that the appellant was arrested at the scene deceased and tied up. PW4, the investigating ocer, conrmed that the inquiries pointed to the appellant as the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1971/eng@2026-09-25 2

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assailant, and PW5’s medical evidence supported the conclusion that the injuries were inicted by a sharp object. It noted that although the defence suggested that the appellant was attacked by the deceased and injured by a panga thrown at him by the deceased, this account was inconsistent with the weight of the prosecution evidence, lacked corroboration and was undermined by the direct testimony of the eyewitnesses and the recovery of the panga from the appellant. 11. On malice aforethought, the trial court held that the nature and severity of the injuries, multiple deep cuts on vital parts of the body demonstrated an intention to cause death or grievous harm. Malice aforethought was accordingly proved in terms of section 206 of the Penal Code. 12. The trial court also considered the motive for the oence being a land dispute between the families and while acknowledging the existence of such a dispute, it found and concluded that it was no defence to such heinous crime. 13. On sentence, the trial court, having considered the probation ocer’s report, the submissions made in mitigation, and the circumstances of the oence, whilst acknowledging, the jurisprudence following the Supreme Court’s decision in Francis Karioko Muruatetu v Republic [2017] eKLR weighing aggravating factors, such as the deliberate and repeated iniction of multiple deep cut wounds on the deceased with mitigating considerations, including the appellant’s family responsibilities, sentenced the appellant to twenty-ve (25) years’ imprisonment. 14. Dissatised with the conviction and sentence, the appellant proered this appeal on several grounds which ideally can be collapsed into ve, to wit: that the trial court erred both in law and in fact in: relying on insucient, contradictory, incredible, unreliable and insucient evidence to convict the appellant; in not holding that the ingredients of the information were not proved; failing to properly analyze and appreciate the appellant’s defences of self-defence and provocation; imposing a harsh and excessive sentence and in failing to order that the sentence should run from the date of his arrest pursuant to Articles 25(c), Article 50(2)(p) of the Constitution of Kenya and section 333(2) of the Criminal Procedure Code. 15. At the plenary hearing of the appeal, the appellant, was represented by Mr Odumbe, learned counsel whereas the respondent appeared through Mr Chebii, learned prosecution counsel. While relying on his written submissions counsel for the appellant zeroed on the fact that the trial court erred in failing to properly analyze and appreciate the appellant’s twin pronged defences of self-defence and provocation arguing that none of the prosecution witnesses witnessed the onset of the incident and that his account of being attacked, cut on the left leg by the deceased, and forced into a desperate ght for his survival created reasonable doubt as to his guilt. He maintained that having been immobilized by the injuries and unable to escape, he had no option but to restrain the deceased from cutting him further by disarming him of the panga. He cited sections 107, 108, 109, 111(1) and 119 of the Evidence Act as well as the Privy Council decision in Palmer v Republic [1971] AC 814 to advance his defences of selfdefence and provocation. He further submitted that the trial court erred in dismissing both defences contending that being waylaid, insulted, and cut on the foot amounted to sudden provocation that caused him to act in the heat of passion, circumstances which should have reduced the oence to manslaughter. Coupled with the foregoing, counsel submitted that the evidence relied upon to convict him was therefore insucient, contradictory incredible and, unreliable; and that the ingredients of the information were not proved therefor. 16. Lastly, he argued that the trial court erred in imposing a harsh and excessive sentence and in failing to order that the sentence so imposed do run from the date of arrest, citing Article 25(c) and 50(2)(p) of the Constitution and relying on the persuasive decision in 88 Prisoners v DPP, AG & Prison Homemade Petition (Odunga J.), which held that liberty is lost once arrested and sentence should therefore be https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1971/eng@2026-09-25 3

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deemed to start from the date of arrest. Based on these submissions, counsel urged this Court to allow the appeal, quash the conviction and set aside the sentence, or in the alternative substitute the conviction with manslaughter and impose a lesser sentence to run from the date of arrest. 17. Counsel for the respondent in opposing the appeal, submitted that the appellant was properly charged with the information, tried, convicted and sentenced. He argued that all the ingredients of the information were proved as required. As to the death and the cause thereof, the respondent relied on the post-mortem report produced by PW5, which conrmed that the deceased had died of multiple cut wounds. Further, PW1 and PW2 were eyewitnesses who saw the appellant cutting the deceased severally, thereby linking him directly to the fatal injuries. 18. As for malice aforethought, counsel submitted that the appellant used a sharp panga and deliberately targeted vital and vulnerable body parts such as the head, chest, back, and stomach, which manifested his intention to cause death or at least grievous harm within the meaning of section 206 of the Penal Code. Counsel rejected the appellant’s plea of self-defence and provocation, contending that once he had disarmed the deceased, he lost the right to continue attacking him and inicting multiple injuries. 19. Turning to sentence, counsel submitted that the circumstances of the oence, particularly the aggravated nature of the injuries, warranted enhancement of the sentence to life imprisonment. In that regard he had led and served on the appellant a notice to enhance the sentence. In the ultimate, counsel prayed that the conviction be armed and the sentence enhanced to life imprisonment in line with the gravity of the oence. 20. The duty of a court on a rst appeal is well settled. It requires such a court to subject the entire evidence led in the trial court to a fresh and exhaustive re-evaluation and analysis, and reach its independent conclusions while bearing in mind that it did not itself see or hear the witnesses as they testied and cannot pass judgment on the credibility and demeanor of such witnesses. In other words, the guiding mantra is that the appellate court must draw its own independent conclusions, but at the same time give due allowance to the trial court’s advantage of having observed the demeanor of witnesses. See Okeno v Republic [1972] EA 32. 21. Having considered the record, the rival submissions, the authorities cited and the law, the issues we discern for determination in this appeal are whether: the information of murder was proved against the appellant; the trial court properly evaluated the defences of self-defence and provocation advanced by the appellant; and whether the sentence imposed was justied. 22. For a conviction of murder to be sustained, the prosecution must establish three ingredients: the fact of death and its cause, that the accused committed the unlawful act and he did so with malice aforethought. See Anthony Ndegwa Ngari v Republic [2014] eKLR and Sawe v Republic [2003] KLR 364. 23. Applying these considerations to the facts in this appeal, the death of the deceased was never in contention. Indeed, it is even conceded to by the appellant in his submissions in person as well as by his counsel. In any event, PW1, PW2 and PW3 all bore witness to the deceased’s death. However, much as PW5 conrmed the death and cause thereof, the appellant questions his conclusion regarding the cause thereof, since there was the possibility of the death having been caused by meningitis as well. Similarly, the appellant does not dispute the fact of his presence at the scene of crime and his involvement in the fracas that resulted in the death of the deceased. 24. However, malice aforethought is the point of departure! Instances when malice aforethought is established is provided for in section 206 of the Penal Code but in our case, those that stand out are: an intention to cause death or grievous harm, or knowledge that the act being undertaken by the accused https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1971/eng@2026-09-25 4

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would probably cause death or grievous harm. Upon reviewing the evidence, we note that although the trial court appreciated the appellant’s injuries and that he was suddenly attacked by the deceased with a panga and whom he managed to wrestle to the ground and disarm, there was no clear nding on whether, in those circumstances, the appellant was capable of forming the necessary and specic intention to kill the deceased. Thus, the question of whether the requisite mens rea was established on the part of the appellant remained unresolved. 25. The appellant himself sustained injuries on the head, hand, and foot, which the trial court conceded that they were not self- inicted. His defence of self-defence was therefore not displaced and required serious interrogation by the trial court. The evidence shows he was immobilized, unable to escape, and acted under imminent threat, with the deceased uttering words such as “I must kill you” and continuing to struggle with him even after being disarmed. In these circumstances, the appellant’s actions, though excessive, were consistent with self-preservation rather than premeditated malice. 26. Besides there is the question of provocation. Section 207 of the Penal Code provides that where a person unlawfully kills another in the heat of passion caused by sudden provocation, and before there is time for the passion to cool, the oence is reduced from murder to manslaughter. This in Peter King’ori Mwangi & 2 Others v Republic [2014] eKLR underscored that provocation must be sudden, grave, and sucient to deprive an ordinary person of self-control, while in Republic v Hussein s/o Mohamed [1944] 11 EACA 66 it was held that provocation is a question of fact, tested against the reaction of a reasonable person. 27. In the present case, the appellant was waylaid, insulted, and cut on the foot, head, and hand, leaving him immobilized and unable to escape. The deceased continued to attack the appellant even after being disarmed and uttered threats such as “I must kill you.” Witnesses conrmed that the two fought over a panga, demonstrating the peril the appellant faced. These circumstances clearly amounted to sudden and grave provocation sucient to deprive the appellant of self-control. We are therefore unable to agree with the trial court’s nding that upon disarming the deceased of the panga, he thereafter had sucient time to cool of. Despite the disarmament, the deceased kept on struggling with, abusing and threatening the appellant. As it were therefore, it was like unnished work still in progress. 28. Accordingly, and on the evidence, whereas the death, and the perpetrator were all proved, the cause thereof and malice aforethought were not established beyond reasonable doubt. The appellant’s twin pronged defences of self-defence and provocation raised a reasonable doubt in the prosecution’s case. Then there is the question whether the death could have been caused by meningitis. This is because PW5 stated categorically that it was dicult to say whether the injuries alone caused death. That being the case, the doubt created must of necessity be resolved in favour of the appellant. 29. All said and done we are satised that the trial court erred in dismissing the two defences since the facts clearly demonstrate that the appellant acted in self defence after suddenly being waylaid and attacked by the deceased who continued to threaten him with death resulting in sudden provocation and forcing the appellant to act in the heat of passion. Taken together, these ndings lead to the conclusion that the proper conviction should have been manslaughter under section 202 as read with section 205 of the Penal Code. Accordingly, we substitute the conviction for murder with one for manslaughter as aforesaid. What sentence then should we impose? considering the circumstances in which the oence was committed and the mitigation advanced by the appellant and the sentencing guidelines, we think that a sentence of 12 years custodial sentence will suce. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1971/eng@2026-09-25 5

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30. As to whether the sentence ought to run from the date of arrest, Article 25(c) of the Constitution of Kenya, guarantees the right to a fair trial as a non-derogable right, while Article 50(2)(p) specically provides that every accused person has the right “to the benet of the least severe of the prescribed punishments if the prescribed punishment for the oence changes between the time of commission of the oence and the time of sentencing.” The jurisprudence of this Court and the Supreme Court of Kenya has consistently armed that in computing custodial sentences, the period spent in custody prior to conviction must be taken into account. 31. In the landmark decision of Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR, this Court held: Taking into account’ the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of conviction because that amounts to ignoring altogether the period already spent in custody.".” 32. Similarly, in Bethwel Wilson Kibor v Republic [2009] eKLR, the Court of Appeal stated thus: “ …By proviso to section 333(2) of Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take account of the period spent in custody. Ombija, J. who sentenced the appellant did not specically state that he had taken into account the period the appellant had spent in custody. This, in our view, was an error in principle." 33. The appellant was arrested on 24th July, 2018, and remained in custody until his conviction and sentencing on 27th May 2019. The trial court sentenced him to 25 years imprisonment but did not expressly order that the sentence run from the date of arrest. In light of the constitutional provisions and binding precedent, the omission to account for the period already spent in custody was an error. 34. We in the premises order that the appellant’s sentence shall run from the date of arrest, namely 24th July, 2018. Consequently, the substituted sentence for manslaughter shall be computed from that date in consonance with section 333(2) of the Criminal Procedure Code. 35. In the result, the appeal succeeds to the extent that the conviction for murder is set aside and substituted with a conviction for manslaughter. We impose a sentence of 12 years imprisonment to run from the date of arrest, that is, 24th July, 2018 pursuant to section 333(2) of the Criminal Procedure Code. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2026. ASIKE-MAKHANDIA ……………….………………… JUDGE OF APPEAL E.C. MWITA ……………….………………… JUDGE OF APPEAL B. ONGAYA ………………...……………… https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1971/eng@2026-09-25 6

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JUDGE OF APPEAL I certify that this is a true copy of the original DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1971/eng@2026-09-25 7

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