JUDGMENT
Introduction
1. This appeal arises from the judgment of the Chief Magistrate’s Court at Homa Bay delivered on 15th October 2024, wherein the Appellant, Clinton Ouma Obuya, was convicted of the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code.
2. The particulars of the charge were that on 24th November 2023 at Makongeni area within Homa Bay Sub-County, the Appellant unlawfully caused the death of Nelson Okoth Onyango alias Ojode.
3. Being dissatisfied with both the conviction and the sentence imposed, the Appellant lodged the present appeal.
Duty of the First Appellate
4. As a first appellate court, this Court is under a duty to re-evaluate, re-analyse, and reconsider the entire evidence on record and draw its own independent conclusions, while bearing in mind that it did not have the advantage of seeing or hearing the witnesses testify.
(See Okeno v Republic [1972] EA 32).
Summary of the Prosecution Case
5. The prosecution called eleven (11) witnesses. In summary, the prosecution case was that the Appellant and the deceased were involved in a physical confrontation on either 24th November 2023 or 28th November 2023, during which the deceased allegedly sustained injuries.
6. PW1, the area Assistant Chief, testified that on 28th November 2023 the deceased was intoxicated and had issued threats against the Appellant. PW1 stated that the deceased reported the matter to him and that he cautioned him against taking the law into his own hands.
7. PW5 testified that on the night of 28th November 2023, he saw the deceased go towards the Appellant’s house. A confrontation ensued during which the deceased allegedly drew a knife and the Appellant struck him on the chest. PW6 and PW7 did not witness the confrontation but found the deceased injured and assisted him to his house.
8. Medical evidence indicated that the deceased later died on 5th December 2023. The post-mortem report attributed the cause of death to bleeding in the brain secondary to head injury.
9. Notably, no prosecution witness testified to having seen the Appellant inflict the fatal head injury.
Summary of the Defence Case
10. The Appellant gave sworn testimony. He denied assaulting the deceased on 24th November 2023, stating that his only encounter with the deceased occurred on 28th November 2023, when the deceased was drunk and armed with a knife.
11. The Appellant asserted that the deceased was the aggressor and that any force used was in self-defence. He further contended that the prosecution failed to establish a causal link between his actions and the death of the deceased.
Grounds and Issues for Determination
12. From the petition of appeal and the submissions on record, the issues for determination are whether:
i. The prosecution proved beyond reasonable doubt that the Appellant unlawfully assaulted the deceased;
ii. A direct causal link between the Appellant’s alleged actions and the death of the deceased was established;
iii. The contradictions and inconsistencies in the prosecution’s case were fatal;
iv. The defence of self-defence was adequately considered; and
v. The conviction for manslaughter was safe.
Analysis and Determination
(a) Proof of the Offence of Manslaughter
13. To sustain a conviction for manslaughter under section 202 of the Penal Code, the prosecution must prove:
• The fact of death;
• That the death was caused by an unlawful act or omission; and
• That the unlawful act or omission was attributable to the accused.
14. The fact of death was not disputed. The critical issues in this appeal are causation and attribution of the unlawful act to the Appellant. The post-mortem report established that the deceased died from bleeding in the brain.
(b) Identification and Placement of the Appellant at the Scene
15. PW7 testified that on 24th November 2023 at about 10.30 p.m., he found the deceased lying on the ground bleeding from the head, with the Appellant allegedly present alongside other neighbours. He stated that he and one Erick escorted the deceased to his house.
16. PW7 did not explain how he was able to identify the Appellant at night. He did not describe the lighting conditions, the distance, the duration of observation, or the clothing worn by the Appellant.
17. It is trite law that evidence of identification or recognition at night must be carefully scrutinised to eliminate the possibility of error, even where the witness claims to know the accused.
(See R v Turnbull [1976] 3 All ER 549).
18. The safeguards set out in Turnbull were not satisfied in PW7’s evidence. The witness failed to explain the circumstances under which he recognised the Appellant, rendering the evidence unreliable .
19. Further, PW7’s testimony that the incident occurred on 24th November 2023 was supported by PW4. However, this directly contradicted the evidence of PW1, PW2, PW3, PW5, and PW11, all of whom placed the material events on 28th November .
(c) Hearsay Evidence and Lack of Direct Proof
20. A careful evaluation of the record reveals that the evidence of several prosecution witnesses was largely hearsay. PW2, PW3, and PW8 relied on what they were told by other persons. PW4 merely saw the deceased being escorted home while injured.
21. PW5 was the only witness who claimed to have witnessed a confrontation on 28th November 2023, which he described as a fight during which the deceased drew a knife. Crucially, he did not testify to witnessing the Appellant inflict any head injury, nor did he link the Appellant to events on 24th November 2023. The said hearsay evidence has no probative value.
(d) Contradictions on the Date of the Alleged Assault
23. The prosecution case was riddled with material contradictions regarding the date of the alleged assault:
• The charge sheet cited 24th November 2023 as the material date;
• PW3 testified that he met the deceased on 26th November 2023, and the deceased told him that the Appellant and his brother had assaulted him both during the day and at night;
• PW4 testified that on 24th November 2023 he saw the deceased bleeding as he was taken home by two people, but the deceased did not state who had injured him.
• PW1, PW2, PW3, PW5, and PW11, all o placed the material events on 28th November 2023.
24. The Appellant consistently stated that his encounter with the deceased occurred on 28th November 2023 and not on 24th November 2023. The trial court dismissed this defence of the appellant saying the evidence by prosecution was well corroborated . .
25. These contradictions were material as they went to the root of the charge. It is settled law that every essential ingredient and particular of an offence must be proved beyond reasonable doubt. I find that the material date was not proved.
(e) Circumstantial Evidence
26. The conviction was substantially based on circumstantial evidence. The law is settled that such evidence must form a complete chain pointing irresistibly to the guilt of the accused and excluding all other reasonable hypotheses.
(See Rex v Kipkering arap Koske & Another [1949] EACA 135; Sawe v Republic [2003] KLR 364).
27. In this case, the chain was broken by:
• Uncertainty as to the date of the alleged assault;
• Absence of evidence linking the Appellant to the fatal head injury;
• The deceased’s continued mobility and interaction days after the alleged assault;
• The possibility of intervening factors such as intoxication, accidental falls, or assault by unknown persons as it emerged that the deceased was a known alcoholic who could also get violent
28. The circumstantial evidence did not meet the required legal threshold in the circumstances..
(f) Causation and Intervening Factors
29. Although medical evidence established the cause of death as bleeding in the brain, the deceased died more than a week after the alleged assault. He was not hospitalised and continued with normal activities during that period.
30. The prosecution failed to exclude other reasonable causes of death or to demonstrate that the Appellant’s alleged actions were the proximate and operating cause of death.
(See Republic v Cheya & Another [1973] EA 500).
(g) Self-Defence
31. In any event, the Appellant consistently raised the defence of self-defence, asserting that the deceased was armed with a knife. This assertion was corroborated by PW5, a prosecution witness.
32. Once self-defence is raised, the burden shifts to the prosecution to disprove it beyond reasonable doubt. That burden was not discharged in this case.
(See section 17 of the Penal Code).
Conclusion
33. Upon re-evaluating the entire evidence on record, I find that:
• The prosecution failed to prove that the Appellant inflicted the fatal injury on 23.11.23 beyond any reasonable doubt .
• The causal link between the Appellant’s alleged conduct and the death of the deceased was not established;
• The contradictions and inconsistencies in the prosecution case were material and went to the root of the case.
• The defence of self-defence was plausible and was not rebutted.
34. I accordingly resolve the doubt in favour of the Appellant. The conviction was therefore unsafe.
Final Orders
35. The appeal is hereby allowed. The conviction for the offence of manslaughter is quashed, and the sentence imposed by the lower court is set aside.
36. The Appellant, Clinton Ouma Obuya, shall be released forthwith unless otherwise lawfully held.
T. A. ODERA
JUDGE
13.2. 26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 12TH DAY OF FEBRUARY 2026,IN THE PRESENCE OF APPELLANT , HIS COUNSEL MISS KIMBERLY . MR MARITIM FOR THE STATE AND COURT ASSISTANT MR OGENDO
Introduction
1. This appeal arises from the judgment of the Chief Magistrate’s Court at Homa Bay delivered on 15th October 2024, wherein the Appellant, Clinton Ouma Obuya, was convicted of the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code.
2. The particulars of the charge were that on 24th November 2023 at Makongeni area within Homa Bay Sub-County, the Appellant unlawfully caused the death of Nelson Okoth Onyango alias Ojode.
3. Being dissatisfied with both the conviction and the sentence imposed, the Appellant lodged the present appeal.
Duty of the First Appellate
4. As a first appellate court, this Court is under a duty to re-evaluate, re-analyse, and reconsider the entire evidence on record and draw its own independent conclusions, while bearing in mind that it did not have the advantage of seeing or hearing the witnesses testify.
(See Okeno v Republic [1972] EA 32).
Summary of the Prosecution Case
5. The prosecution called eleven (11) witnesses. In summary, the prosecution case was that the Appellant and the deceased were involved in a physical confrontation on either 24th November 2023 or 28th November 2023, during which the deceased allegedly sustained injuries.
6. PW1, the area Assistant Chief, testified that on 28th November 2023 the deceased was intoxicated and had issued threats against the Appellant. PW1 stated that the deceased reported the matter to him and that he cautioned him against taking the law into his own hands.
7. PW5 testified that on the night of 28th November 2023, he saw the deceased go towards the Appellant’s house. A confrontation ensued during which the deceased allegedly drew a knife and the Appellant struck him on the chest. PW6 and PW7 did not witness the confrontation but found the deceased injured and assisted him to his house.
8. Medical evidence indicated that the deceased later died on 5th December 2023. The post-mortem report attributed the cause of death to bleeding in the brain secondary to head injury.
9. Notably, no prosecution witness testified to having seen the Appellant inflict the fatal head injury.
Summary of the Defence Case
10. The Appellant gave sworn testimony. He denied assaulting the deceased on 24th November 2023, stating that his only encounter with the deceased occurred on 28th November 2023, when the deceased was drunk and armed with a knife.
11. The Appellant asserted that the deceased was the aggressor and that any force used was in self-defence. He further contended that the prosecution failed to establish a causal link between his actions and the death of the deceased.
Grounds and Issues for Determination
12. From the petition of appeal and the submissions on record, the issues for determination are whether:
i. The prosecution proved beyond reasonable doubt that the Appellant unlawfully assaulted the deceased;
ii. A direct causal link between the Appellant’s alleged actions and the death of the deceased was established;
iii. The contradictions and inconsistencies in the prosecution’s case were fatal;
iv. The defence of self-defence was adequately considered; and
v. The conviction for manslaughter was safe.
Analysis and Determination
(a) Proof of the Offence of Manslaughter
13. To sustain a conviction for manslaughter under section 202 of the Penal Code, the prosecution must prove:
• The fact of death;
• That the death was caused by an unlawful act or omission; and
• That the unlawful act or omission was attributable to the accused.
14. The fact of death was not disputed. The critical issues in this appeal are causation and attribution of the unlawful act to the Appellant. The post-mortem report established that the deceased died from bleeding in the brain.
(b) Identification and Placement of the Appellant at the Scene
15. PW7 testified that on 24th November 2023 at about 10.30 p.m., he found the deceased lying on the ground bleeding from the head, with the Appellant allegedly present alongside other neighbours. He stated that he and one Erick escorted the deceased to his house.
16. PW7 did not explain how he was able to identify the Appellant at night. He did not describe the lighting conditions, the distance, the duration of observation, or the clothing worn by the Appellant.
17. It is trite law that evidence of identification or recognition at night must be carefully scrutinised to eliminate the possibility of error, even where the witness claims to know the accused.
(See R v Turnbull [1976] 3 All ER 549).
18. The safeguards set out in Turnbull were not satisfied in PW7’s evidence. The witness failed to explain the circumstances under which he recognised the Appellant, rendering the evidence unreliable .
19. Further, PW7’s testimony that the incident occurred on 24th November 2023 was supported by PW4. However, this directly contradicted the evidence of PW1, PW2, PW3, PW5, and PW11, all of whom placed the material events on 28th November .
(c) Hearsay Evidence and Lack of Direct Proof
20. A careful evaluation of the record reveals that the evidence of several prosecution witnesses was largely hearsay. PW2, PW3, and PW8 relied on what they were told by other persons. PW4 merely saw the deceased being escorted home while injured.
21. PW5 was the only witness who claimed to have witnessed a confrontation on 28th November 2023, which he described as a fight during which the deceased drew a knife. Crucially, he did not testify to witnessing the Appellant inflict any head injury, nor did he link the Appellant to events on 24th November 2023. The said hearsay evidence has no probative value.
(d) Contradictions on the Date of the Alleged Assault
23. The prosecution case was riddled with material contradictions regarding the date of the alleged assault:
• The charge sheet cited 24th November 2023 as the material date;
• PW3 testified that he met the deceased on 26th November 2023, and the deceased told him that the Appellant and his brother had assaulted him both during the day and at night;
• PW4 testified that on 24th November 2023 he saw the deceased bleeding as he was taken home by two people, but the deceased did not state who had injured him.
• PW1, PW2, PW3, PW5, and PW11, all o placed the material events on 28th November 2023.
24. The Appellant consistently stated that his encounter with the deceased occurred on 28th November 2023 and not on 24th November 2023. The trial court dismissed this defence of the appellant saying the evidence by prosecution was well corroborated . .
25. These contradictions were material as they went to the root of the charge. It is settled law that every essential ingredient and particular of an offence must be proved beyond reasonable doubt. I find that the material date was not proved.
(e) Circumstantial Evidence
26. The conviction was substantially based on circumstantial evidence. The law is settled that such evidence must form a complete chain pointing irresistibly to the guilt of the accused and excluding all other reasonable hypotheses.
(See Rex v Kipkering arap Koske & Another [1949] EACA 135; Sawe v Republic [2003] KLR 364).
27. In this case, the chain was broken by:
• Uncertainty as to the date of the alleged assault;
• Absence of evidence linking the Appellant to the fatal head injury;
• The deceased’s continued mobility and interaction days after the alleged assault;
• The possibility of intervening factors such as intoxication, accidental falls, or assault by unknown persons as it emerged that the deceased was a known alcoholic who could also get violent
28. The circumstantial evidence did not meet the required legal threshold in the circumstances..
(f) Causation and Intervening Factors
29. Although medical evidence established the cause of death as bleeding in the brain, the deceased died more than a week after the alleged assault. He was not hospitalised and continued with normal activities during that period.
30. The prosecution failed to exclude other reasonable causes of death or to demonstrate that the Appellant’s alleged actions were the proximate and operating cause of death.
(See Republic v Cheya & Another [1973] EA 500).
(g) Self-Defence
31. In any event, the Appellant consistently raised the defence of self-defence, asserting that the deceased was armed with a knife. This assertion was corroborated by PW5, a prosecution witness.
32. Once self-defence is raised, the burden shifts to the prosecution to disprove it beyond reasonable doubt. That burden was not discharged in this case.
(See section 17 of the Penal Code).
Conclusion
33. Upon re-evaluating the entire evidence on record, I find that:
• The prosecution failed to prove that the Appellant inflicted the fatal injury on 23.11.23 beyond any reasonable doubt .
• The causal link between the Appellant’s alleged conduct and the death of the deceased was not established;
• The contradictions and inconsistencies in the prosecution case were material and went to the root of the case.
• The defence of self-defence was plausible and was not rebutted.
34. I accordingly resolve the doubt in favour of the Appellant. The conviction was therefore unsafe.
Final Orders
35. The appeal is hereby allowed. The conviction for the offence of manslaughter is quashed, and the sentence imposed by the lower court is set aside.
36. The Appellant, Clinton Ouma Obuya, shall be released forthwith unless otherwise lawfully held.
T. A. ODERA
JUDGE
13.2. 26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 12TH DAY OF FEBRUARY 2026,IN THE PRESENCE OF APPELLANT , HIS COUNSEL MISS KIMBERLY . MR MARITIM FOR THE STATE AND COURT ASSISTANT MR OGENDO