JUDGMENT
A. INTRODUCTION
1. The two consolidated appeals herein (KISII HCRA NO. E080 of 2024 & HCRA NO.E080 of 2024 )arise from Kisii Chief Magistrate’s Court Criminal Case No. 2158 of 2018, where the Appellants, Daniel Maina Nyakweba alias Odero and Patrick Matibe Maronga alias Bob, were jointly charged with three counts:
i. Attempted murder contrary to section 220(a) of the Penal Code;
ii. Attempted arson contrary to section 333(a) of the Penal Code;
iii. Malicious damage to property contrary to section 339 of the Penal Code.
2. Upon conclusion of the trial, the learned trial magistrate convicted both Appellants on all three counts, sentencing each to five years’ imprisonment on each count, with the sentences to run concurrently.
3. The appellants were aggrieved by both the conviction and sentence of the lower court, and they filed separate appeals, which were later consolidated herein. The appeals challenge the conviction and sentence on substantially similar grounds. In summary, the Appellants allege that the trial magistrate convicted them based on evidence that did not meet the standard of proof beyond a reasonable doubt, relied on contradictory and inconsistent testimony, failed to evaluate the evidence of identification and recognition properly, and neglected to consider mitigation, pre-sentence reports, and victim impact material before sentencing.
4. The Appellants filed written submissions, while the prosecution did not submit any but relied on the evidence on record. The 1st Appellant, Daniel Maina Nyakweba alias Odero, primarily submitted that he was not properly identified, that no identification parade was conducted, and that dock identification was worthless. He asserted that the voice recognition by PW8 was unreliable and that contradictions in the evidence of PW1, PW2, PW3, and PW8 created reasonable doubt. The 1st Appellant abandoned some grounds, including complaints regarding the charge sheet and certain sentencing issues.
5. The 2nd Appellant, Patrick Matibe Maronga alias Bob, similarly argued that the evidence placing him at the scene was unsafe. He highlighted contradictions between PW2 and PW3 regarding whether he was seen peeping through a window or attempting to enter through a bedroom window. He contended that PW1 was not in a position to identify him as she had fainted and only regained consciousness in hospital. Furthermore, he argued that PW3’s evidence was weakened by the absence of his name in the police statement. He maintained that recognition occurred at night under difficult circumstances, necessitating an identification parade.
6. The Respondent opposed the appeal, urging the Court to uphold both the conviction and sentence, asserting that the Appellants were known to the witnesses and positively recognised during the attack.
B. DUTY OF A FIRST APPELLATE COURT
7. This is a first appeal, and the duty of this Court is to re-evaluate the entire evidence on record and draw its own independent conclusions, bearing in mind that it did not see or hear the witnesses testify.
8. This aligns with the holding in Okeno v Republic [1972] EA 32, where the Court of Appeal emphasised that a first appellate court must weigh the evidence and draw its conclusions while acknowledging the trial court's advantage in observing the witnesses.
9. Therefore, this Court must consider the evidence, the grounds of appeal, and the rival submissions to determine whether the conviction was safe and whether the sentence warrants appellate interference.
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C. ISSUES FOR DETERMINATION
10. From the grounds of appeal and written submissions, the following issues arise for determination:
i. Whether the Appellants were positively identified or recognised as the perpetrators;
ii. Whether the absence of an identification parade was fatal to the prosecution's case;
iii. Whether the learned trial magistrate improperly relied on dock identification or voice recognition;
iv. Whether the alleged contradictions and inconsistencies in the prosecution's case were material;
v. Whether the evidence of PW2 and PW3 required corroboration and whether it was safe to rely on it;
vi. Whether the prosecution proved the three counts beyond a reasonable doubt; and
vii. Whether the sentence imposed was lawful and appropriate.
D. ANALYSIS
i. Whether the Appellants were positively identified or recognised
11. The main ground of appeal raised by both Appellants concerns identification. They argue that the attack occurred at night, making identification or recognition difficult.
12. The law on visual identification is settled. Courts must treat evidence of identification, especially at night, with great caution due to the potential for mistakes, even where witnesses are familiar with the accused. In Wamunga v Republic [1989] KLR 424, the Court of Appeal cautioned that evidence of visual identification in criminal cases can lead to a miscarriage of justice and must be examined carefully before reliance.
13. The principles in Republic v Turnbull [1977] QB 224 are also relevant in cases of identification/recognition at night. A court must consider the circumstances under which the identification was made, including the length of time the witness observed the accused, the distance, lighting conditions, any impediments to observation, prior knowledge of the accused, and any significant discrepancies in descriptions.
14. In Anjononi & Others v Republic [1980] KLR 59, the Court of Appeal held that recognition of an assailant is generally more reliable than identifying a stranger, as it relies on the witness's personal knowledge of the accused. However, this does not render recognition immune from error; it must be established that the conditions favoured proper recognition.
15. The evidence shows that the Appellants were known to the witnesses. PW1 recognised the 1st Appellant as her brother-in-law, while PW2 and PW3 knew him as their uncle and the 2nd Appellant as a neighbour. PW8 recognised the 1st Appellant visually and by voice as his brother. PW1 testified that security lights illuminated the scene, a fact not contested. The witnesses said they recognised both accused at the scene. The 1st Appellant did not testify but, on 16.5.24, indicated his intent to provide sworn testimony. On 10.6.24, he called his wife, Jackline Kwamboka Maina (DW3), and Thomas Mwita Warema (DW4) as witnesses. DW3 asserted that the 1st Appellant was at home on the night in question, while DW4 expressed surprise over his arrest.
16. The 2nd Appellant testified as DW1 and called his wife (DW2) as a witness, denying the charges and suggesting a grudge between him and PW1 stemming from an earlier incident. Although this issue was raised during cross-examination, PW1 denied any animosity.
17. Evaluating the evidence of the Appellants' witnesses alongside that of PW1, PW2, PW3, and PW8, it is clear that the scene was well-lit, enabling positive recognition. The witnesses described each Appellant's role during the incident. PW1 stated that she saw both accused, with the 1st Appellant wielding a panga and attacking her. PW2 and PW3 corroborated that they saw the 1st Appellant arguing and the 2nd Appellant attempting to break windows. Furthermore, PW1, PW2, PW3, and PW8 testified to threats made by the 1st Appellant regarding a land boundary dispute.
18. The 2nd Appellant's argument that PW1 could not identify him because she fainted is notable. While the Court must exercise caution regarding the testimony of an injured and traumatised witness, PW1 asserted that she saw both accused before the attack. The cumulative evidence of PW2, PW3, and PW8 further affirms the recognition of the Appellants.
ii. Whether the absence of an identification parade was fatal
19. The Appellants heavily emphasised the absence of an identification parade, citing decisions such as Gabriel Kamau Njoroge v Republic (1982–1988) 1 KAR 1134, where the Court of Appeal stated that dock identification is generally worthless unless preceded by a properly conducted identification parade.
20. Probative value of dock identification/recognition is usually very weak as it occurs when the accused is already in the dock, which may influence the witness. However, this principle is most applicable when the accused was unknown to the identifying witness.
21. If the evidence is one of recognition by individuals familiar with the accused beforehand, an identification parade is not necessary, as it defeats the purpose . In Peter Okee Omukaga & Another v Republic [2011] eKLR, the Court of Appeal held that an identification parade is unnecessary when the witness knows the accused personally.
22. Consequently, the issue is not solely whether an identification parade was conducted but whether the evidence of recognition was cogent, tested, and reliable. The failure to conduct an identification parade does not by itself render the conviction unsafe when witnesses knew the accused and provided recognition evidence.
23. I reject the Appellants’ claim that the absence of an identification parade was fatal to the prosecution's case.
iii. Dock identification and voice recognition
24. The Appellants contended that the learned trial magistrate relied on dock identification. Upon reviewing the record and the trial court judgment, it is evident that the prosecution did not assert that the Appellants were unknown individuals who were first identified in court. The witnesses testified to their prior knowledge of the Appellants; thus, the reference to them in court was not strict dock identification but rather an in-court confirmation based on prior interaction
25. While caution is warranted regarding dock identification, the critical evidence lies in the alleged recognition at the scene, not merely the identification in court.
26. Regarding voice recognition, PW8 testified to recognising the 1st Appellant by voice. Voice identification is admissible if properly tested. In Karani v Republic [1985] KLR 290, the Court of Appeal held that identification by voice may be accepted when the witness is familiar with the accused's voice and recognises it under conditions minimising the likelihood of error.
27. PW8 knew the 1st Appellant, and his voice recognition evidence did not exist in isolation; it supported the visual recognition evidence of PW1, PW2, and PW3. Therefore, it was not unsafe merely because it involved voice recognition, but must be considered as part of the totality of the evidence rather than as the sole basis for conviction.
iv. Alleged contradictions and inconsistencies
28. The Appellants asserted that the prosecution's evidence was contradictory. The 1st Appellant pointed to inconsistencies among PW1, PW2, PW3, and PW8 regarding his actions and location during the incident. The 2nd Appellant noted the discrepancy between PW2's assertion that he was "peeping through our window" and PW3's claim that he attempted to enter through a bedroom window. Additionally, he highlighted PW1's statement that she did not know who hit her because she found herself in the hospital.
29. In any event, not every discrepancy in prosecution evidence is fatal. In Twehangane Alfred v Uganda [2003] UGCA 6, the Court of Appeal of Uganda stated that minor discrepancies are expected in truthful testimony, while significant contradictions that undermine the case may justify rejecting the evidence. In this case, the attackers were moving around the house from outside, the witnesses were in different rooms, and there is evidence of broken windows and doors. Further, the incident was sudden and violent, occurring at night. PW1 was injured, and PW2 and PW3 were minors witnessing a traumatic attack on their home and family member. It is unrealistic to expect uniformity from witnesses recounting such an incident. The inconsistencies highlighted were minor and did not undermine the core of the case.
v. Whether the evidence of PW2 and PW3 required corroboration
30. The Appellants contended that PW2 and PW3, being minors at the time, required corroboration under section 124 of the Evidence Act. They also raised concerns about potential coaching.
31. PW2 and PW3 were minors during the incident but had reached adulthood by the time of their testimonies. PW1, PW8, medical evidence, property damage evidence, and forensic and photographic evidence corroborated their evidence. Thus, their testimony was not the sole basis for conviction.
32. Regarding the allegation of coaching, the record must show a basis for concluding that the testimony was coached or fabricated. The mere fact that witnesses were minors does not, without more, render their testimony unreliable. The trial court had the advantage of observing the witnesses and assessing their demeanour. The defence had the opportunity to cross-examine the witnesses, and this Court finds no sufficient basis to conclude that their evidence was coached.
33. Upon careful evaluation of the prosecution evidence against that of the defence and the submissions presented, I find that the eyewitnesses were firm and consistent in their identification of the Appellants at the scene. The conditions at the scene favoured clear and positive recognition. I dismiss the Appellants' claims of fabrication as mere denials. The Appellants were indeed present at the scene.
vi. Whether the offences were proved beyond a reasonable doubt
34. The burden of proof rested with the prosecution, adhering to the standard of proof beyond a reasonable doubt, as articulated in Woolmington v Director of Public Prosecutions [1935] AC 462, a principle applicable in Kenya.
Attempted murder
35.. The offence of attempted murder under section 220(a) of the Penal Code requires proof of an unlawful act done with intent to cause death, even if death does not result.
36. Evidence indicated that PW1 was attacked with dangerous weapons, including a jembe and panga, resulting in serious injuries classified as grievous harm. Medical evidence confirmed the nature of these injuries. The use of dangerous weapons, the targeted body parts, the severity of the injuries, and the surrounding circumstances were pertinent in determining intent.
37. In R v Whybrow (1951) 35 Cr App R 141, it was held that in a case of attempted murder, the prosecution must demonstrate an intention to kill, which may be inferred from the nature of the weapon used, the manner of the assault, and the surrounding circumstances. Similarly, in Abdi Ali Bare v Republic [2015] eKLR, the Court emphasised that intent may be inferred from the circumstances of the attack.
38.Upon evaluating the evidence, I am satisfied that the prosecution proved the count of attempted murder beyond a reasonable doubt.
Attempted arson
39. Section 333(a) of the Penal Code criminalises attempts to unlawfully set fire to a building or structure under specified circumstances.
40. Evidence presented indicated that flammable materials were used, the house was targeted, and fire damage was observed. The Appellants argued that the trial court failed to ascertain whether the house was actually set on fire or if any fire was initiated.
41. I have considered that submission and the evidence. The prosecution was not required to prove that the house was completely burned. The offence charged was attempted arson, necessitating proof of an overt act aimed at setting the house on fire, coupled with the requisite intent.
42. Eyewitness testimony, in conjunction with physical damage and forensic evidence, established that an attempt was made to set the house ablaze. The prosecution proved the count of attempted arson.
Malicious damage to property
43. Under section 339 of the Penal Code, the prosecution needed to prove that property was damaged and that the damage was wilful and unlawful.
44. Evidence from PW1, PW2, PW3, and PW8, alongside photographic and crime scene evidence, indicated that the house sustained damage. Doors, windows, and other parts of the structure were tampered with. The circumstances demonstrated that the damage was intentional and malicious.
45. I am satisfied that this count was also proved beyond a reasonable doubt. The learned trial magistrate did not err in convicting the Appellants, and I uphold their convictions as safe.
E. SENTENCE
46. Having upheld the convictions, this Court now considers the appeal against the sentence.
47. The Appellants contested the sentence. Sentencing is a matter of judicial discretion. An appellate court will only interfere where the sentence is illegal, excessive, based on incorrect principles, or where the trial court failed to consider relevant factors.
48. This principle was articulated in Wanjema v Republic [1971] EA 493, where the Court held that an appellate court should not interfere with a sentence merely because it would have imposed a different one, unless the sentence is manifestly excessive or based on an error of principle.
49. . The offences were serious, involving violence, attempts on life, use of dangerous weapons, serious injuries, damage to property, and an attempt to set a dwelling on fire. A sentence of five years on Counts 2 (attempted arson) and 3 (malicious property damage) was imposed, with custodial sentences. The sentences were within the law.
50. As for Count I, attempted murder contrary to section 220(a) of the Penal Code, the trial court sentenced the Appellants to fifteen (15) years’ imprisonment
51. Sentencing is an exercise of judicial discretion. An appellate court will only interfere with a sentence where it is shown to be illegal, excessive, manifestly inadequate, based on incorrect principles, or where the trial court failed to consider relevant factors, as stated in Wanjema v Republic [1971] EA 493.
52. I have weighed the serious nature of the offences herein the circumstances of the attack, the injuries suffered by the complainant, the Appellants’ mitigation, the period already served, submissions made on appeal, and the Social Inquiry reports. These reports indicate that the victims remain deeply traumatised and bitter, with Helen Kemunto Ngara suffering serious, permanent injuries, including loss of teeth and vision in one eye.
53. The circumstances of the offences were grave and violent, and their effects remain severe and ongoing. The victim continues to suffer physically, psychologically, and economically. The sentence must reflect the gravity of the offence, the harm caused, deterrence, public protection, and the need to discourage violent resolutions of family and land-related disputes.
54. At the same time, sentencing must remain proportionate. The Appellants were first offenders, and the relationship between the parties is relevant to the objectives of the sentence. This dispute occurred within an extended family context. A lengthy custodial sentence may deter, but could also leave the underlying family conflict unresolved.
55. I find that while a custodial sentence is necessary, the fifteen (15) years’ imprisonment sentence on Count 1 is excessive. The sentence calls for appellate interference to align it with proportionality, rehabilitation, and the unique family-land background of the offence.
56. Accordingly, the fifteen (15) years’ imprisonment sentence on Count I is hereby set aside and replaced with a sentence of ten (10) years’ imprisonment.
57.. The sentences on Counts II and III shall remain as imposed by the trial court and run concurrently with the substituted sentence on Count I.
58. The Appellants shall benefit from section 333(2) of the Criminal Procedure Code. The 1st Appellant's plea was taken on 10.9.19, and he was released on bond on 18.11.18. The 2nd Appellant's plea was taken on 5.9.18, and he was released on bail on 31.10.18. Upon conviction on 22.7.24, they were remanded in custody pending presentence reports and sentencing, which occurred on 27.9.24. The sentences shall be computed, considering the aforementioned remand periods.
F. FINAL DISPOSITION
59. In conclusion:
i. The appeals against conviction are dismissed.
ii. The convictions on Counts I, II, and III are upheld.
iii. The appeal against the sentence partially succeeds.
iv. The sentence of fifteen (15) years’ imprisonment on Count I for attempted murder is set aside and substituted with a sentence of ten (10) years’ imprisonment.
v. The sentences on Counts I, II, and III shall run concurrently.
vi. The sentences shall be computed as per paragraph 68 in accordance with section 333(2) of the Criminal Procedure Code.
vii. Orders accordingly.
T.A. ODERA
JUDGE
14.5.26
Delivered virtually via Teams platform on this 14th day of May 2026 in the presence of the Appellants, Mr Koima for the State, and Mr Sagwe for the Appellants. Court Assistant – Kipchirchir
A. INTRODUCTION
1. The two consolidated appeals herein (KISII HCRA NO. E080 of 2024 & HCRA NO.E080 of 2024 )arise from Kisii Chief Magistrate’s Court Criminal Case No. 2158 of 2018, where the Appellants, Daniel Maina Nyakweba alias Odero and Patrick Matibe Maronga alias Bob, were jointly charged with three counts:
i. Attempted murder contrary to section 220(a) of the Penal Code;
ii. Attempted arson contrary to section 333(a) of the Penal Code;
iii. Malicious damage to property contrary to section 339 of the Penal Code.
2. Upon conclusion of the trial, the learned trial magistrate convicted both Appellants on all three counts, sentencing each to five years’ imprisonment on each count, with the sentences to run concurrently.
3. The appellants were aggrieved by both the conviction and sentence of the lower court, and they filed separate appeals, which were later consolidated herein. The appeals challenge the conviction and sentence on substantially similar grounds. In summary, the Appellants allege that the trial magistrate convicted them based on evidence that did not meet the standard of proof beyond a reasonable doubt, relied on contradictory and inconsistent testimony, failed to evaluate the evidence of identification and recognition properly, and neglected to consider mitigation, pre-sentence reports, and victim impact material before sentencing.
4. The Appellants filed written submissions, while the prosecution did not submit any but relied on the evidence on record. The 1st Appellant, Daniel Maina Nyakweba alias Odero, primarily submitted that he was not properly identified, that no identification parade was conducted, and that dock identification was worthless. He asserted that the voice recognition by PW8 was unreliable and that contradictions in the evidence of PW1, PW2, PW3, and PW8 created reasonable doubt. The 1st Appellant abandoned some grounds, including complaints regarding the charge sheet and certain sentencing issues.
5. The 2nd Appellant, Patrick Matibe Maronga alias Bob, similarly argued that the evidence placing him at the scene was unsafe. He highlighted contradictions between PW2 and PW3 regarding whether he was seen peeping through a window or attempting to enter through a bedroom window. He contended that PW1 was not in a position to identify him as she had fainted and only regained consciousness in hospital. Furthermore, he argued that PW3’s evidence was weakened by the absence of his name in the police statement. He maintained that recognition occurred at night under difficult circumstances, necessitating an identification parade.
6. The Respondent opposed the appeal, urging the Court to uphold both the conviction and sentence, asserting that the Appellants were known to the witnesses and positively recognised during the attack.
B. DUTY OF A FIRST APPELLATE COURT
7. This is a first appeal, and the duty of this Court is to re-evaluate the entire evidence on record and draw its own independent conclusions, bearing in mind that it did not see or hear the witnesses testify.
8. This aligns with the holding in Okeno v Republic [1972] EA 32, where the Court of Appeal emphasised that a first appellate court must weigh the evidence and draw its conclusions while acknowledging the trial court's advantage in observing the witnesses.
9. Therefore, this Court must consider the evidence, the grounds of appeal, and the rival submissions to determine whether the conviction was safe and whether the sentence warrants appellate interference.
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C. ISSUES FOR DETERMINATION
10. From the grounds of appeal and written submissions, the following issues arise for determination:
i. Whether the Appellants were positively identified or recognised as the perpetrators;
ii. Whether the absence of an identification parade was fatal to the prosecution's case;
iii. Whether the learned trial magistrate improperly relied on dock identification or voice recognition;
iv. Whether the alleged contradictions and inconsistencies in the prosecution's case were material;
v. Whether the evidence of PW2 and PW3 required corroboration and whether it was safe to rely on it;
vi. Whether the prosecution proved the three counts beyond a reasonable doubt; and
vii. Whether the sentence imposed was lawful and appropriate.
D. ANALYSIS
i. Whether the Appellants were positively identified or recognised
11. The main ground of appeal raised by both Appellants concerns identification. They argue that the attack occurred at night, making identification or recognition difficult.
12. The law on visual identification is settled. Courts must treat evidence of identification, especially at night, with great caution due to the potential for mistakes, even where witnesses are familiar with the accused. In Wamunga v Republic [1989] KLR 424, the Court of Appeal cautioned that evidence of visual identification in criminal cases can lead to a miscarriage of justice and must be examined carefully before reliance.
13. The principles in Republic v Turnbull [1977] QB 224 are also relevant in cases of identification/recognition at night. A court must consider the circumstances under which the identification was made, including the length of time the witness observed the accused, the distance, lighting conditions, any impediments to observation, prior knowledge of the accused, and any significant discrepancies in descriptions.
14. In Anjononi & Others v Republic [1980] KLR 59, the Court of Appeal held that recognition of an assailant is generally more reliable than identifying a stranger, as it relies on the witness's personal knowledge of the accused. However, this does not render recognition immune from error; it must be established that the conditions favoured proper recognition.
15. The evidence shows that the Appellants were known to the witnesses. PW1 recognised the 1st Appellant as her brother-in-law, while PW2 and PW3 knew him as their uncle and the 2nd Appellant as a neighbour. PW8 recognised the 1st Appellant visually and by voice as his brother. PW1 testified that security lights illuminated the scene, a fact not contested. The witnesses said they recognised both accused at the scene. The 1st Appellant did not testify but, on 16.5.24, indicated his intent to provide sworn testimony. On 10.6.24, he called his wife, Jackline Kwamboka Maina (DW3), and Thomas Mwita Warema (DW4) as witnesses. DW3 asserted that the 1st Appellant was at home on the night in question, while DW4 expressed surprise over his arrest.
16. The 2nd Appellant testified as DW1 and called his wife (DW2) as a witness, denying the charges and suggesting a grudge between him and PW1 stemming from an earlier incident. Although this issue was raised during cross-examination, PW1 denied any animosity.
17. Evaluating the evidence of the Appellants' witnesses alongside that of PW1, PW2, PW3, and PW8, it is clear that the scene was well-lit, enabling positive recognition. The witnesses described each Appellant's role during the incident. PW1 stated that she saw both accused, with the 1st Appellant wielding a panga and attacking her. PW2 and PW3 corroborated that they saw the 1st Appellant arguing and the 2nd Appellant attempting to break windows. Furthermore, PW1, PW2, PW3, and PW8 testified to threats made by the 1st Appellant regarding a land boundary dispute.
18. The 2nd Appellant's argument that PW1 could not identify him because she fainted is notable. While the Court must exercise caution regarding the testimony of an injured and traumatised witness, PW1 asserted that she saw both accused before the attack. The cumulative evidence of PW2, PW3, and PW8 further affirms the recognition of the Appellants.
ii. Whether the absence of an identification parade was fatal
19. The Appellants heavily emphasised the absence of an identification parade, citing decisions such as Gabriel Kamau Njoroge v Republic (1982–1988) 1 KAR 1134, where the Court of Appeal stated that dock identification is generally worthless unless preceded by a properly conducted identification parade.
20. Probative value of dock identification/recognition is usually very weak as it occurs when the accused is already in the dock, which may influence the witness. However, this principle is most applicable when the accused was unknown to the identifying witness.
21. If the evidence is one of recognition by individuals familiar with the accused beforehand, an identification parade is not necessary, as it defeats the purpose . In Peter Okee Omukaga & Another v Republic [2011] eKLR, the Court of Appeal held that an identification parade is unnecessary when the witness knows the accused personally.
22. Consequently, the issue is not solely whether an identification parade was conducted but whether the evidence of recognition was cogent, tested, and reliable. The failure to conduct an identification parade does not by itself render the conviction unsafe when witnesses knew the accused and provided recognition evidence.
23. I reject the Appellants’ claim that the absence of an identification parade was fatal to the prosecution's case.
iii. Dock identification and voice recognition
24. The Appellants contended that the learned trial magistrate relied on dock identification. Upon reviewing the record and the trial court judgment, it is evident that the prosecution did not assert that the Appellants were unknown individuals who were first identified in court. The witnesses testified to their prior knowledge of the Appellants; thus, the reference to them in court was not strict dock identification but rather an in-court confirmation based on prior interaction
25. While caution is warranted regarding dock identification, the critical evidence lies in the alleged recognition at the scene, not merely the identification in court.
26. Regarding voice recognition, PW8 testified to recognising the 1st Appellant by voice. Voice identification is admissible if properly tested. In Karani v Republic [1985] KLR 290, the Court of Appeal held that identification by voice may be accepted when the witness is familiar with the accused's voice and recognises it under conditions minimising the likelihood of error.
27. PW8 knew the 1st Appellant, and his voice recognition evidence did not exist in isolation; it supported the visual recognition evidence of PW1, PW2, and PW3. Therefore, it was not unsafe merely because it involved voice recognition, but must be considered as part of the totality of the evidence rather than as the sole basis for conviction.
iv. Alleged contradictions and inconsistencies
28. The Appellants asserted that the prosecution's evidence was contradictory. The 1st Appellant pointed to inconsistencies among PW1, PW2, PW3, and PW8 regarding his actions and location during the incident. The 2nd Appellant noted the discrepancy between PW2's assertion that he was "peeping through our window" and PW3's claim that he attempted to enter through a bedroom window. Additionally, he highlighted PW1's statement that she did not know who hit her because she found herself in the hospital.
29. In any event, not every discrepancy in prosecution evidence is fatal. In Twehangane Alfred v Uganda [2003] UGCA 6, the Court of Appeal of Uganda stated that minor discrepancies are expected in truthful testimony, while significant contradictions that undermine the case may justify rejecting the evidence. In this case, the attackers were moving around the house from outside, the witnesses were in different rooms, and there is evidence of broken windows and doors. Further, the incident was sudden and violent, occurring at night. PW1 was injured, and PW2 and PW3 were minors witnessing a traumatic attack on their home and family member. It is unrealistic to expect uniformity from witnesses recounting such an incident. The inconsistencies highlighted were minor and did not undermine the core of the case.
v. Whether the evidence of PW2 and PW3 required corroboration
30. The Appellants contended that PW2 and PW3, being minors at the time, required corroboration under section 124 of the Evidence Act. They also raised concerns about potential coaching.
31. PW2 and PW3 were minors during the incident but had reached adulthood by the time of their testimonies. PW1, PW8, medical evidence, property damage evidence, and forensic and photographic evidence corroborated their evidence. Thus, their testimony was not the sole basis for conviction.
32. Regarding the allegation of coaching, the record must show a basis for concluding that the testimony was coached or fabricated. The mere fact that witnesses were minors does not, without more, render their testimony unreliable. The trial court had the advantage of observing the witnesses and assessing their demeanour. The defence had the opportunity to cross-examine the witnesses, and this Court finds no sufficient basis to conclude that their evidence was coached.
33. Upon careful evaluation of the prosecution evidence against that of the defence and the submissions presented, I find that the eyewitnesses were firm and consistent in their identification of the Appellants at the scene. The conditions at the scene favoured clear and positive recognition. I dismiss the Appellants' claims of fabrication as mere denials. The Appellants were indeed present at the scene.
vi. Whether the offences were proved beyond a reasonable doubt
34. The burden of proof rested with the prosecution, adhering to the standard of proof beyond a reasonable doubt, as articulated in Woolmington v Director of Public Prosecutions [1935] AC 462, a principle applicable in Kenya.
Attempted murder
35.. The offence of attempted murder under section 220(a) of the Penal Code requires proof of an unlawful act done with intent to cause death, even if death does not result.
36. Evidence indicated that PW1 was attacked with dangerous weapons, including a jembe and panga, resulting in serious injuries classified as grievous harm. Medical evidence confirmed the nature of these injuries. The use of dangerous weapons, the targeted body parts, the severity of the injuries, and the surrounding circumstances were pertinent in determining intent.
37. In R v Whybrow (1951) 35 Cr App R 141, it was held that in a case of attempted murder, the prosecution must demonstrate an intention to kill, which may be inferred from the nature of the weapon used, the manner of the assault, and the surrounding circumstances. Similarly, in Abdi Ali Bare v Republic [2015] eKLR, the Court emphasised that intent may be inferred from the circumstances of the attack.
38.Upon evaluating the evidence, I am satisfied that the prosecution proved the count of attempted murder beyond a reasonable doubt.
Attempted arson
39. Section 333(a) of the Penal Code criminalises attempts to unlawfully set fire to a building or structure under specified circumstances.
40. Evidence presented indicated that flammable materials were used, the house was targeted, and fire damage was observed. The Appellants argued that the trial court failed to ascertain whether the house was actually set on fire or if any fire was initiated.
41. I have considered that submission and the evidence. The prosecution was not required to prove that the house was completely burned. The offence charged was attempted arson, necessitating proof of an overt act aimed at setting the house on fire, coupled with the requisite intent.
42. Eyewitness testimony, in conjunction with physical damage and forensic evidence, established that an attempt was made to set the house ablaze. The prosecution proved the count of attempted arson.
Malicious damage to property
43. Under section 339 of the Penal Code, the prosecution needed to prove that property was damaged and that the damage was wilful and unlawful.
44. Evidence from PW1, PW2, PW3, and PW8, alongside photographic and crime scene evidence, indicated that the house sustained damage. Doors, windows, and other parts of the structure were tampered with. The circumstances demonstrated that the damage was intentional and malicious.
45. I am satisfied that this count was also proved beyond a reasonable doubt. The learned trial magistrate did not err in convicting the Appellants, and I uphold their convictions as safe.
E. SENTENCE
46. Having upheld the convictions, this Court now considers the appeal against the sentence.
47. The Appellants contested the sentence. Sentencing is a matter of judicial discretion. An appellate court will only interfere where the sentence is illegal, excessive, based on incorrect principles, or where the trial court failed to consider relevant factors.
48. This principle was articulated in Wanjema v Republic [1971] EA 493, where the Court held that an appellate court should not interfere with a sentence merely because it would have imposed a different one, unless the sentence is manifestly excessive or based on an error of principle.
49. . The offences were serious, involving violence, attempts on life, use of dangerous weapons, serious injuries, damage to property, and an attempt to set a dwelling on fire. A sentence of five years on Counts 2 (attempted arson) and 3 (malicious property damage) was imposed, with custodial sentences. The sentences were within the law.
50. As for Count I, attempted murder contrary to section 220(a) of the Penal Code, the trial court sentenced the Appellants to fifteen (15) years’ imprisonment
51. Sentencing is an exercise of judicial discretion. An appellate court will only interfere with a sentence where it is shown to be illegal, excessive, manifestly inadequate, based on incorrect principles, or where the trial court failed to consider relevant factors, as stated in Wanjema v Republic [1971] EA 493.
52. I have weighed the serious nature of the offences herein the circumstances of the attack, the injuries suffered by the complainant, the Appellants’ mitigation, the period already served, submissions made on appeal, and the Social Inquiry reports. These reports indicate that the victims remain deeply traumatised and bitter, with Helen Kemunto Ngara suffering serious, permanent injuries, including loss of teeth and vision in one eye.
53. The circumstances of the offences were grave and violent, and their effects remain severe and ongoing. The victim continues to suffer physically, psychologically, and economically. The sentence must reflect the gravity of the offence, the harm caused, deterrence, public protection, and the need to discourage violent resolutions of family and land-related disputes.
54. At the same time, sentencing must remain proportionate. The Appellants were first offenders, and the relationship between the parties is relevant to the objectives of the sentence. This dispute occurred within an extended family context. A lengthy custodial sentence may deter, but could also leave the underlying family conflict unresolved.
55. I find that while a custodial sentence is necessary, the fifteen (15) years’ imprisonment sentence on Count 1 is excessive. The sentence calls for appellate interference to align it with proportionality, rehabilitation, and the unique family-land background of the offence.
56. Accordingly, the fifteen (15) years’ imprisonment sentence on Count I is hereby set aside and replaced with a sentence of ten (10) years’ imprisonment.
57.. The sentences on Counts II and III shall remain as imposed by the trial court and run concurrently with the substituted sentence on Count I.
58. The Appellants shall benefit from section 333(2) of the Criminal Procedure Code. The 1st Appellant's plea was taken on 10.9.19, and he was released on bond on 18.11.18. The 2nd Appellant's plea was taken on 5.9.18, and he was released on bail on 31.10.18. Upon conviction on 22.7.24, they were remanded in custody pending presentence reports and sentencing, which occurred on 27.9.24. The sentences shall be computed, considering the aforementioned remand periods.
F. FINAL DISPOSITION
59. In conclusion:
i. The appeals against conviction are dismissed.
ii. The convictions on Counts I, II, and III are upheld.
iii. The appeal against the sentence partially succeeds.
iv. The sentence of fifteen (15) years’ imprisonment on Count I for attempted murder is set aside and substituted with a sentence of ten (10) years’ imprisonment.
v. The sentences on Counts I, II, and III shall run concurrently.
vi. The sentences shall be computed as per paragraph 68 in accordance with section 333(2) of the Criminal Procedure Code.
vii. Orders accordingly.
T.A. ODERA
JUDGE
14.5.26
Delivered virtually via Teams platform on this 14th day of May 2026 in the presence of the Appellants, Mr Koima for the State, and Mr Sagwe for the Appellants. Court Assistant – Kipchirchir