Mwangi v Republic

As the appellant continued to chase the witnesses out of the compound, their screams attracted people from a nearby church since it was a Sunday. A man named Joseph Kamau Kinyanjui managed to wrestle the appellant down, after which the appellant was tied with a rope, and the jembe recovered and secured inside the house. The deceased was placed into PW4’s vehicle and rushed to Thika District Hospital, but died on the way. Following a call to Makuyu Police Station, ocers arrived at approximately 4:00 p.m., arrested the appellant, and took away both the fork jembe and the cap the appellant was wearing. 4. PW2, Dr Samuel Owino Onglanga, a physician, testied that on 28th April 2008, the appellant was brought from Makuyu Police Station with a request for a mental status evaluation. Upon examination, PW2 found that the appellant’s mental state was normal, he had no history of mental illness, and he was in good general physical condition, save for a recent bruise on his right arm. Consequently, the doctor formed the opinion that the appellant was t to plead and lled out a P3 form. 5. PW3, Daniel Mwangi Kinyanjui, testied that on 13th April 2008, at around 11:45 am, he was cultivating a farm belonging to the deceased alongside PW1, when the appellant arrived and forced open the door to the deceased's house. Having noticed this, the deceased left the farm early to check on her house, which was located about 50 meters from where they were working, but she never returned to the farm. Suddenly, PW3 and PW1 heard the deceased screaming. As they hurried towards the house, they met the appellant holding a jembe and the deceased bleeding from her head before she ultimately collapsed outside her house, prompting them to scream, attracting neighbours. 6. The deceased and the appellant followed PW3 and PW1 as they proceeded to their own home. They came across Macharia, Ndereva, and Mwaura. PW3 placed the deceased on a sack and ferried her to the stage, where they found a vehicle belonging to PW4. On the way, they passed through Makuyu Police Station, where they received a note to take the deceased to Thika Hospital; however, she passed away before she could receive treatment. The deceased's body was subsequently taken to the mortuary. By the time they returned, the appellant had already been arrested. 7. PW4 Joseph Kamande Ngugi testied that on 13th April 2008, at approximately 11:45 am, while he was travelling from Kenol Centre, a group of people stopped him and requested to use his vehicle to transport an injured person to the hospital. He stopped and placed the deceased in his vehicle, accompanied by PW1 and PW3, and rushed her to Thika Hospital, stopping briey at the Makuyu Police Station along the way. Upon arrival at Thika Hospital, the deceased was pronounced dead, after which they transported the body to the mortuary. 8. PW5 PC David Wafula Eddo testied that on 25th April 2008, he went to Murang’a District Mortuary and witnessed the postmortem examination of the deceased, which was conducted by Dr Njoroge. He noted that the body was positively identied by relatives and he later went back to Makuyu Police Station, handed the forms to the Ocer Commanding the Station and recorded his statement. 9. PW6, Simon Oloo (SSP), recalled that on 13th April 2008, while stationed at Makuyu Police Station in Murang’a South District, he was on duty at 2:00 pm, when he recorded a report of a serious assault. The report was made by the deceased, who was accompanied by two men, including PW4, who spoke on her behalf because she was unable to talk. PW6 booked it in the Occurrence Book (OB). The companions of the deceased informed him that the assailant was the appellant, who had already been arrested by members of the public. Upon checking the private vehicle where the deceased was, the ocer found her bleeding from the head and arranged for her to be taken to Thika Hospital, after which he made arrangements to visit the scene. 10. Accompanied by PC Samuel Kariuki and Warugurua, PW6 visited the scene of the incident. Upon arrival, he found that members of the public had detained the appellant, and they recounted what had transpired. They led the ocer to the deceased's house, where he discovered fresh blood stains https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1975/eng@2026-09-25 2

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two meters outside the residence. The appellant was wearing a shirt dotted with fresh blood stains and showed no physical signs of injuries or indications of having been beaten by the public. 11. The blood-stained shirt was removed from the appellant at the scene. There was a jembe, which was covered in soil, found nearby, and the appellant had been tied up. Additionally, they found a cap near the blood stains at the scene, which was identied by the public as belonging to the appellant. He arrested the appellant, took him to the police station, and subsequently charged him with assault; after receiving a report that the deceased had passed away, the charge was amended to murder. The ocer noted that he did not conduct any forensic analysis on the items because a signicant amount of time had passed since his visit to the scene, making it impossible to get results after the items had been exposed. All the above items were produced in court as exhibits. 12. PW7, Dr Joseph Njoroge Silas, testied that on 25th April 2008, he was requested by the Makuyu Police Station to perform a post-mortem examination on the body of the deceased at the Murang’a District Hospital. Upon general examination, he observed that the well-preserved body was that of a naked, 21- year-old African female. His external examination revealed a cut on the back of the head measuring about 5 feet 7 inches in size, though no other external injuries were noted. The head sustained severe damage, including a ruptured fracture with a displaced segment measuring approximately 4 cm at the back of the head, alongside a minor skull fracture extending about 5 cm from the displaced segment. 13. Based on his examination, PW7 concluded that the cause of death was a severe head injury resulting from trauma to the head. He subsequently lled out and signed death certicate number 554996. The body was identied by Stephen Mwangi and Lucy Wamuyu Mwangi in the presence of PW5 and PC Macharia. PW7 noted that the injuries could have been inicted using a jembe. He produced his postmortem report as evidence. 14. When put to his defence, DW1, the appellant, elected to give sworn evidence and recalled the evidence of the prosecution witnesses, specically naming PW1 and PW3, who were both present during the incident on 13th April 2008. The appellant explained that after drinking, he went to the home of his girlfriend, the deceased, where he found two men, PW1 and PW3, armed with jembes, shouting and quarrelling inside her house when PW1 suddenly hit the deceased with a jembe. The appellant looked for assistance as the deceased fell outside the house. The men she had been quarrelling with ran to PW3's home, which was about 500 meters away. The appellant followed them and found them washing their hands, but they screamed, prompting members of the public to arrive, and he was arrested. The deceased had also followed them to PW3's house. The appellant maintained his innocence, asserting that he did not commit the murder. 15. The trial Judge found that the prosecution had proved its case against the appellant beyond any reasonable doubt and convicted the appellant, as charged. He was sentenced to 30 years’ imprisonment. 16. The appellant preferred this appeal in his home-made undated grounds of appeal. His learned counsel led supplementary grounds of appeal dated 20th June 2025 with the following grounds: the learned Judge erred in nding that the prosecution had proved its case beyond reasonable doubt; in not nding that the testimonies of the two eyewitnesses were replete with inconsistencies; and in nding that the appellant harboured malice aforethought in the commission of the oence. 17. In his submissions dated 24th June 2025, learned counsel for the appellant contended that the trial Judge erred in nding that the prosecution proved its case beyond reasonable doubt, arguing that the evidence contained fundamental contradictions and failed to establish malice aforethought. In support of his contention, he relied on Anthony Ndegwa Ngari vs Republic [2014] KECA424 (KLR), where this Court outlined the elements of murder. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1975/eng@2026-09-25 3

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18. Counsel challenged the reliability and credibility of the prosecution witnesses, pointing to signicant inconsistencies regarding the location, timeline, and individuals present during the incident. Specically, counsel submitted that PW1 and PW3 provided conicting accounts regarding whether the incident occurred at the deceased’s home or in the shamba. He submitted that, furthermore, a major chronological discrepancy existed in that while PW1 and PW3 claimed the appellant arrived at 11:45 am, PW4—the driver who transported the deceased testied that he was already agged down by a crowd to help the injured victim at that exact same time. 19. Counsel argued further that PW4's testimony as an innocent bystander is more persuasive, suggesting that PW1 and PW3 may have colluded to fabricate their timelines. Additionally, PW1 denied going to the hospital, which directly contradicts the statements of PW4 and PW6 (the investigating ocer), both of whom noted that the deceased was accompanied to the hospital and police station by two men. 20. Counsel also highlights the mysterious presence and subsequent ight of another alleged eyewitness named Njoki, who was mentioned by the investigating ocer (PW6) but completely omitted from the testimonies of PW1 and PW3. Counsel questions what PW1 and PW3 were hiding by masking her presence, why Njoki ed before recording a statement, and why they washed their hands immediately after the incident under the guise of removing mud, which counsel posits could have been an attempt to destroy blood evidence. Citing Richard Munene vs Republic [2018] KECA 186 (KLR), counsel stressed that material contradictions and omissions that go to the root of a case must be resolved in the appellant’s favour, rendering a conviction unsafe if it is based on uncorroborated or contaminated testimony. 21. Finally, counsel argued that the prosecution failed to establish the critical element of malice aforethought or prove that he was the actual assailant. Counsel submitted that the appellant was intoxicated during the commission of the oence and PW1 and PW3 took advantage of his drunkenness and choreographed the script that took the appellant to prison. In conclusion, counsel maintained that the investigation was severely compromised by guilty consciences or deliberate fabrications by PW1 and PW3, meaning the prosecution's case was not proved beyond reasonable doubt. Consequently, counsel urged the Court to allow the appeal, set aside the conviction and sentence, and order the appellant’s immediate release. 22. Learned counsel for the respondent led submissions dated 7th July 2025, and submitted that the prosecution successfully proved its case beyond reasonable doubt through seven witnesses, including two eye-witnesses (PW1 and PW3) who directly observed the daytime attack. Counsel emphasized that this was a matter of recognition rather than identication by a stranger, as both the witnesses and the appellant acknowledged that the deceased was the appellant's girlfriend, leaving no possibility of mistaken identity. Furthermore, counsel asserted that there were no fatal inconsistencies in the prosecution's evidence regarding the murder weapon (a fork jembe) or the timeline of events, and that any minor discrepancies should be treated as negligible procedural mishaps. 23. Finally, counsel defended the 30-year prison term meted out to the appellant as appropriate and just, citing the Supreme Court's directions in Muruatetu & aAnother vs Republic; Katiba Institute & 5 Others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR), guidelines which grant trial courts the judicial discretion to weigh mitigating and aggravating factors. Given the brutal nature of the murder and the profound impact on the deceased’s three minor children who lost their sole breadwinner, counsel maintained that the sentence is neither excessive nor punitive. Consequently, counsel urged the Court to dismiss the appeal in its entirety, nd it lacking in merit, and uphold both the conviction and the sentence issued by the trial court. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1975/eng@2026-09-25 4

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24. This is a rst appeal, and the Court is obligated to re-examine, re-evaluate and analyse 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 (Criminal Appeal 189 of 2020) [2026] KECA 155 (KLR), which referred to the case of Okeno vs Republic [1972] EA 32, which stated that this Court is mandated to undertake a fresh and exhaustive examination of the evidence and to reach its own decision on the evidence on record. 25. Having carefully considered the record of appeal, the rival submissions by counsel and the law, we discern the following issues for determination: a. Whether the prosecution proved the oence of murder beyond reasonable doubt. b. Whether the inconsistencies and contradictions complained of by the appellant were material and fatal to the prosecution case; c. Whether the appellant’s defence raised reasonable doubt. d. Whether the Court should interfere with the sentence imposed. 26. The appellant's principal complaint is that the testimonies of PW1, PW3, PW4 and PW6 contained inconsistencies regarding the exact location of the attack, the chronology of events and the persons present at the scene. It is now settled that not every discrepancy or inconsistency in the prosecution evidence will vitiate a conviction. Human recollection is rarely perfect and minor discrepancies are often indicative of truthful testimony rather than fabrication. What the court must determine is whether the inconsistency goes to the root of the prosecution case and creates a reasonable doubt as to the guilt of the accused person. 27. We have examined the alleged contradictions. The evidence of PW1 and PW3 were consistent on the central fact that the appellant forcefully entered the deceased's house, armed with a fork jembe and shortly thereafter the deceased emerged bleeding from a severe head injury. Both witnesses testied that the appellant thereafter chased them while armed and threatening them. 28. The complaint regarding whether the deceased was rst attacked at her house or after leaving the shamba does not aect the central issue of who inicted the fatal injury. Equally, the dierence concerning the precise timing of events is understandable considering that the witnesses were recounting a traumatic occurrence that unfolded rapidly. Such variations neither displace the appellant from the scene of crime nor cast doubt on the occurrence of the attack. Also, whether or not PW1 made it to hospital or did not does not turn on much. 29. A careful evaluation of the record reveals that the discrepancies were minor and did not aect the substance of the case. In Jackson Mwanzia Musembi vs Republic [2017] KECA 748 (KLR), this Court of Appeal relied on the holding by the Uganda Court of Appeal in Twehangane Alfred vs Uganda, Criminal Appeal No 139 of 2001, [2003] UGCA, 6, where the Court held that it is not every contradiction that warrants rejection of evidence. The Court stated as follows: “ With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not aect the main substance of the prosecution’s case.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1975/eng@2026-09-25 5

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30. We are also satised that the inconsistencies pointed out by the appellant were minor, explainable and did not go to the root of the prosecution’s case and did not occasion any miscarriage of justice. 31. As regards the reference by PW6 to a lady known as Njoki, and PW3’s reference to Macharia, Ndereva, and Mwaura, the appellant made heavy weather of the fact that they were not called as witnesses. It is trite law that the prosecution is not required to call a superuity of witnesses. The principle as captured in Joseph Kiptum Keter vs Republic [2007] KECA 390 (KLR), is that the prosecution must call essential witnesses, but failure to call a witness is not fatal if the evidence on record is sucient. In Julius Kalewa Mutunga vs Republic (Criminal Appeal 31 of 2005) [2006] KECA 79 (KLR), this Court held that: “ The prosecution is not obliged to call a superuity of witnesses.” 32. We are satised that the failure to call Njoki, and the three men referred to by PW3 by the prosecution, did not dislodge the watertight case already built by the prosecution. 33. In a charge of murder, the prosecution has a singular task of proving the following three ingredients in order to secure a conviction, that: the death occurred; the death was caused by the unlawful act of commission or omission by the appellant; and the appellant had malice aforethought as he committed the said act as held in the case of Moses Kadenge Dadu vs Republic [2017] KECA 125 (KLR). The evidence on record placed the appellant at the scene of the crime. PW1 and PW3 knew the appellant before the incident. Indeed, the appellant himself admitted that he knew the deceased and described her as his girlfriend. This was therefore a case of recognition rather than identication of a stranger. On the identication of the appellant, the trial court held: “ They were both consistent that the accused person hit the deceased with a hoe and pursued them with menaces to Kinyanjui’s (PW3’s) house. The accused was nally subdued by members of the public one of whom is said to have been one Joseph Kamau Kinyanjui. As he was grounded, Mwangi (PW1) kept guard so that he could not escape while Kinyanjui (PW3) helped take the deceased to hospital. In these circumstances, I am satised that the accused is the person who hit the deceased and fatally wounded her.” 34. In Reuben Taabu Anjononi, Benjamin Akisa Anjononi and Monya Anjononi vs Republic (Criminal Appeal 480, 208 and 209 of 1978) [1980] KECA 23 (KLR), this Court held that recognition of an assailant is more satisfactory, more assuring and more reliable than identication of a stranger. 35. In this case, both PW1 and PW3 placed the appellant at the deceased's homestead moments before the deceased sustained the fatal injury. Their evidence was consistent that they saw him armed with a fork jembe and that he pursued them while threatening to kill them, with his hands soiled in blood. 36. Signicantly, the appellant was arrested at the scene by members of the public immediately after the incident. He was not arrested elsewhere after investigation. His presence at the scene was therefore never in dispute. 37. The appellant's own defence further conrms his presence at the scene. His explanation was not that he was elsewhere but that another person had inicted the injuries. Concomitantly, in his grounds of appeal, he introduces the aspect of self- defence for the rst time, but does not explain the circumstances at all. This is tantamount to an admission by the appellant to having committed the oence, albeit in self- defence. Before the High Court, he explained that he had been drinking immediately before he went to the deceased’s home and that soon after he arrived there, PW1 picked a hoe and hit the deceased https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1975/eng@2026-09-25 6

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with it. The learned trial Judge considered that explanation and rejected it. Having independently reevaluated the evidence, we nd no basis for interfering with that nding. 38. Additionally, apart from the direct evidence of PW1 and PW3, there existed strong circumstantial evidence pointing to the appellant as the perpetrator. The trial court stated: “ The implied malice of the accused which informed his actions, in my humble view, falls into any of these categories; he cannot have struck the deceased if it was not his intention to cause her death or to do her grievous harm. He must also have known that his action in wounding the deceased could probably cause the deceased’s death and if not, he was reckless whether his action would cause death or grievous bodily harm.” 39. PW6 testied that upon arriving at the scene he found the appellant wearing a shirt stained with fresh blood. The ocer further observed that the appellant had no injuries capable of explaining the presence of the blood on his clothing. The fork jembe allegedly used in the attack was recovered at the scene where the appellant had been restrained by members of the public. 40. Although no forensic examination was undertaken on the blood stains, the absence of DNA analysis was not fatal in the circumstances of this case. In Erick Odhiambo Okumu vs Republic [2015] KECA 714 (KLR), this Court reiterated that it has long been accepted that the guilt of an accused person does not have to be proved by direct evidence alone. Circumstantial evidence, namely evidence that enables a court to deduce a particular fact from circumstances or facts that have been proved, can form a strong basis for establishing the guilt of an accused person as would direct evidence. 41. The appellant's conduct before and after the attack is equally telling. The evidence shows that he forcefully kicked open the deceased's door. Following the assault, he chased PW1 and PW3 while armed and threatening to kill them. Rather than assist the deceased, he pursued potential witnesses and was eventually subdued by members of the public. 42. This Court has repeatedly held that the conduct of an accused person before, during and after the commission of an oence is a relevant circumstance from which guilt may be inferred. 43. The Evidence Act, section 8(2) states that; “ The conduct of any party… to any suit or proceeding, in reference to such suit or proceeding or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an oence against whom is the subject of any proceeding, is relevant, if such conduct inuences or is inuenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. 44. The totality of the evidence irresistibly points to the appellant and to no other person. His allegation that PW1 and another individual were responsible was unsupported by any evidence and amounted to a mere denial. 45. On whether the conviction was safe, having re-evaluated the entire record, we are satised that the prosecution established beyond reasonable doubt that it was the appellant who inicted the fatal head injury upon the deceased. 46. The medical evidence by PW7 established that the deceased died from severe head trauma consistent with an assault by a sharp or heavy object such as the recovered jembe. That evidence was entirely consistent with the accounts given by PW1 and PW3. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1975/eng@2026-09-25 7

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47. We are satised that the learned trial Judge properly directed himself on the law and the evidence. Accordingly, we nd that the conviction was safe and founded upon credible evidence. 48. As for the sentence, it is a matter of discretion, and this Court will ordinarily not interfere with the punishment meted out by the trial court unless the sentence is unlawful. The sentence of 30 years is lawful and this Court, therefore, has no basis to interfere with the same. 49. In the end, we nd no merit in this appeal. The same is hereby dismissed in its entirety. The conviction for murder and the sentence imposed by the High Court are hereby armed. DATED AND DELIVERED AT NYERI THIS 25TH DAY OF SEPTEMBER, 2026. W. KARANJA ...................................... JUDGE OF APPEAL S. ole KANTAI ...................................... JUDGE OF APPEAL ALI-ARONI ...................................... 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/2026/1975/eng@2026-09-25 8

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