1. The Appellant herein, was charged and convicted with the charge of manslaughter contrary to section 202 of the Penal Code. The particulars before court being that on 25 th September 2021 at Itetani Market in Mbooni West Sub-County ,within Makueni County in the Republic of Kenya, unlawfully killed Abraham Mutunga Wambua.
2. The appellant being dissatisfied appealed against the judgment and sentence, and raised the following grounds of appeal;
i) That the learned trial magistrate denied the appellant a fair trial, when he was not informed of the right to have legal representation under Article 50(2)(g)(h) of the Constitution of Kenya 2010.
ii) That the trial magistrate erred in law and facts by failing to establish this offence to be involuntary manslaughter.
iii) That the trail magistrate erred in law and facts by failing to note inconsistencies, contradictions and credibility of the prosecution witnesses.
iv) That the learned trial magistrate imposed 20 years imprisonment which is harsh, failing to put into consideration the objective of the sentencing policy guidelines and by disregarding the Appellants mitigating factors pursuant to Section 216 and 329 of the Criminal Procedure Code.
Evidence.
3. Anthony Mutunga Musyoka told the court that on 25 th September 2021, he was at Itetani market, inside Street 5 bar. That at around 7 p.m., the appellant went into the bar in company of Wambua, the deceased. The two were arguing about some money and that a fight ensued between them. Denis pushed the deceased who fell to the ground, and that is when Dennis stepped on his stomach several times, and then left. The witness stated that there was electricity light inside the bar, and that Denis was a person he had known for a period of one year.
4. PW2, Peter Nzioka was also at Itetani bar. His evidence was that he saw the appellant and the deceased sharing a table next to them. They started quarrelling, and the deceased fell down. That is when the witness saw the appellant stepping on the deceased chest. The appellant left for home, and the following day, PW 2, learned that the deceased had passed away.
5. In cross examination, he witness maintained that it was the appellant who hit the deceased, causing him to fall to the ground. He was able to identify the appellant very well and went on to describe the clothes he wore on that day. He also stated that the two were fighting and that the appellant was not armed.
6. Benedicto Kiwanuka is the proprietor of Street 5 Bar, situated at Itetani market. He told the court that on 26 th September 2021, he was called by his employees at around 8.30 p.m, who requested him to go and assist in taking Wambua, the deceased to hospital. He went tis bar and found the deceased lying on the ground. He then called a police officer, who visited the bar, and informed him that the deceased had since passed on.
7. Charles Kikui Ndewia, is a patron at the bar on the material day also stated that he saw the appellant and the deceased fighting. He witnessed the appellant stepping on the deceased’s chest. The following day, that is when he learned that Wambua had passed on.
8. William Mutisya Wambua is the brother to the deceased. He learned about the death of his brother when he received a phone call from his father. He also told the court that the appellant used to work for his uncle. That upon learning of the death, they called the police from Mbooni, who arrested the appellant.
9. Dr. Timothy Mbindyo is a medical Officer based at Tawa Sub County Hospital. On 27 th September 2021, at 1650 hours, he conducted a post mortem on the body of the deceased. The significant injury that he noted was that the deceased had suffered skull fracture twice. That the brain had a blood clot measuring 6 cm X 4 cm X 2 cm. He produced the post mortem report as an exhibit before court.
10. NO. 240509 IP Mohamed Abdullahi was the investigating officer. On the 25 th September 2021, he received information about the alleged offence from the OCS Kalawani police station, and he immediately visited the scene, where he found the body of the deceased. He noted that the body way lying on the back side and also noted shoe prints marks on the abdomen of the deceased. He secured the scene, and interrogated the people who were present at the bar the previous night.
11. He later took the suspect for questioning, and later charged him with the offence before court. A post mortem was conducted on the body of the deceased. He established that the deceased and the appellant had disagreed over payment of some money, and that this led to a brawl. That is when the appellant attacked the deceased, fatally injuring him.
12. When placed on his defence, the appellant gave a sworn defence, and told the court that on 25 th September 2021, he did his usual work and later slept. Later at around 10 p.m, the wife to his employer went to call him, and told him that they should go to the market because there was a relative who had a health issue. They went to the bar, where they found a group of people and police officers at the scene. The people pointed at him, and he was arrested and charged with the offence of manslaughter. He denied the charges, stating that the police at the scene checked his shoes and that prints on the deceases body did not match.
13. He denied the charges, and went on to state that he did not visit the bar until the time the wife to his boss went to call him from his house.
Analysis and Determination
14. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different conclusion”
15. On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic , the East Africa Court of Appeal stated on the duty of the court on a first appeal:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.”
16. The legal burden is the burden of proof is on the prosecution and remains constant throughout. According to established principles, burden of proof rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:
The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.”
17. Brennan J, addressed the standard of proof required in Criminal cases the case of Re Winship 397 US 358 {1970}, at page 36164 that:
“ The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.”
18. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 had this to say:
“ That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”
19. The appeal was canvassed by way of written submissions which have been duly considered and there is no need to rehash them.
20. It is with this background that the court must first analyse the evidence and the proceedings. Then it must address the issues and make findings on each of the issues. The appeal raises only two issues, that is:
a). Whether the offence was proved to the required standards.
b). Whether the trial court failed to comply with the provision of Article 50(2)(g) and h) of the Kenyan Constitution 2010.
21. Section 202 of the Penal Code provides:
“( 1) Any person who by an unlawful act or omission causes the death of another person is guilty of the felony termed manslaughter
(2) An unlawful omission is an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health, whether such omission is or is not accompanied by an intention to cause death or bodily harm."
22. Section 205 of the Penal Code reads:
“ Any person who commits the felony of manslaughter is liable to imprisonment for life."
23. The issue before this court is whether the prosecution has discharged the burden of proof of beyond reasonable doubt in respect with the charge of murder against the accused person based on the following elements.
a. The death of the deceased.
b. The death was unlawfully caused.
c. That additionally the accused was the person who committed the offence on the material day as against the deceased.
24. The prosecution case rested mainly on direct evidence. PW 1, 2, 3 were all revelers at Street 5 bar and stated that they saw the appellant seated on the same table with the deceased. That the two disagreed over some money and that a brawl erupted. All the witnesses were consistent in their evidence that the appellant pushed the deceased to the ground, and while on the ground, he stepped on him severally on the chest and then left. They are all eye witnesses, and gave a clear and consistent account that the appellant engaged the deceased in a confrontation, and attacked him after he hit him falling to the ground. Their evidence placed the appellant at the scene and directly linked him to the fatal act. The conditions for identification were favourable and his testimony remained unshaken.
25. As stated in Anjononi & others v Republic (1976-80) 1 KLR 1566 at page 1568:
“Recognition of an assailant is more satisfactory, more assuring, and more reliable...”
26. The medical evidence by PW 5 confirmed that the deceased suffered skull fracture to his head, which led to bold clot in the brain .This evidence corroborated the eye witness account as to the nature of the injury and the force applied. The witnesses maintained that the appellant pushed the deceased, who was drunk to the ground, and stepped on him severally. No other person was involved in the brawled and that caused of the injury was thus attributed solely to the appellant. The death took place at the scene and there is thus no possibility of another cause of death.
27. The appellant’s defence was that he was not at the scene. That he only went to the bar after he was called by the wife to his boss later that evening. This defence was duly considered and rejected. None of the identifying witnesses had prior grudges with the appellant, and had no reason to frame him up with the charges.
28. The totality of the evidence establishes that the appellant unlawfully caused the death of the deceased. The conviction for manslaughter was proper and supported by the evidence and is hereby upheld.
29. The second issue is that there was a mistrial due to non-compliance with article 50(2) (g) and (h) of the Constitution . The said article provides as follows:
( g) to choose, and be represented by, an advocate, and to be informed of this right promptly;
h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
30. The Court of Appeal in Manyeso v Republic [2023] KECA 827 (KLR) held thus:
“The appellant did not raise the issue of legal representation either in the trial court and the High Court. The appellant participated in the trial and cross-examined the witnesses, and it was not evident that he suffered any or any substantial injustice. The appellant’s rights to a fair trial on under articles 50(2)(g) and 50(2)(h) of the Constitution were not violated.”
31. The appellant dealt with the matter effectively. It is only that the case was overwhelming. There is no demonstration of the appellant suffering any substantial injustice. Looking at cross examination, the appellant was able to effectively raise all questions and there was no evidence that the situation could change.
31. The appellant was sentenced to serve twenty (20) years imprisonment. In the case of Wanjema v Republic (1971) E.A. 493 the court stated as follows: -
“An appellate court should not interfere with the discretion which a trial court has exercised as to the sentence unless it is evident that it overlooked some material factors, took into consideration some immaterial fact, acted on wrong principle or the sentence is manifestly excessive in the circumstances of the case.”
32. In determining the appropriate sentence in this case, I am guided by the predominant principles in Kigula v Republic (2009) UGSC 6 at p 41, the Ugandan court of Appeal said:
“ A trial does not stop at convicting a person. The process of sentencing a person is part of the trial. This is because the court will take into account the evidence, the nature of the offence and the circumstances of the case in order to arrive at an appropriate sentence. This is clearly evident where the law provides for a maximum sentence. The court will truly have exercised its function as an impartial tribunal in trying and sentencing a person. But, the court is denied the exercise of this function where the sentence has already been pre-ordained by the Legislature, as in capital cases. In our view, this compromises the principle of fair trial.”
33. The appropriate sentence can only be achieved when this court considers the objectives of sentencing in totality and the guidelines laid out in the “Muruatetu case”. The Judiciary sentencing policy guidelines are instructive. They are not elaborate as to sentences involving manslaughter, but they give a roadmap which courts ought to consider in coming up with an appropriate sentence.
34. The sentencing objectives in Kenya have been captured in the Sentencing Guidelines 2023 to be the following:
a. Retribution: to punish the offender for his/her criminal conduct in a just manner.
b. Deterrence: to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.
c. Rehabilitation: to enable the offender reform from his/her criminal disposition and become a law-abiding person.
d. Restorative justice: to address the needs arising from the criminal conduct such as loss and damages.
e. Community protection: to protect the community by incapacitating the offender.
f. Denunciation: to communicate the community’s condemnation of the criminal conduct.
g. Reconciliation: To mend the relationship between the offender, the victim and the community.
h. Reintegration: To facilitate the re-entry of the offender into the society.
35. Additionally, in the “Muruatetu Case”, the Supreme Court outlined the following guidelines as being applicable when the Court was giving consideration to re-sentencing;“
(a) age of the offender;
(b) being a first offender;
(c) whether the offender pleaded guilty;
(d) character and record of the offender;
(e) commission of the offence in response to gender-based violence;
(f) remorsefulness of the offender;
(g) the possibility of reform and social re-adaption of the offender
(h) any other factor that the Court considers relevant.”
36 .In V M K v Republic [2015] eKLR ten years in jail was given for manslaughter. The trend has been that when the accused person uses a dangerous weapon in committing the crime, the court is likely to sentence the accused to life imprisonment.
37. I have considered the circumstances under which the offence was committed and the mitigation by the appellant. The trial magistrate, while sentencing the appellant and in light of the social inquiry report opined that the appellant was not remorseful. The circumstances do not allow a non-custodial sentence in my view and I am of the position that the accused person will benefit from a custodial sentence for purposes of rehabilitation.
38. I have considered the sentencing objectives in totality. The accused person is relatively a young person and it was established from the pre-sentence report that the community is still not safe in the meantime. In that regard, I find a custodial sentence to be appropriate and hereby reduce the sentence imposed by the trial court, and substitute it with a sentence of 10 years imprisonment.
39. According to section 333(2) of the Criminal Procedure Code , the court is under an obligation to consider the time spent by the accused person in custody, until one is convicted. I am conscious of the said period and the same has been factored in the final sentence.
40. Final Orders.
i) .The appeal on conviction lacks merit and is dismissed.
ii). The appeal on sentence partially succeeds. Sentence is here reviewed and the appellant is hereby sentenced to serve 10 years imprisonment to run from 12 th October 2021 when the appellant was remanded.
Right of Appeal in 14 days.
Orders accordingly.
DELIVERED, DATED AND SIGNED ON THIS 17 TH SEPTEMBER, 2026.
JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.
MARTHA MUTUKU - JUDGE.
In the presence of: -
Miss Omol for the State
Appellant in person.
Court Assistant – Mr. Kibet.
MAKUENI HCCRA NO.E035 OF 20252
2. The appellant being dissatisfied appealed against the judgment and sentence, and raised the following grounds of appeal;
i) That the learned trial magistrate denied the appellant a fair trial, when he was not informed of the right to have legal representation under Article 50(2)(g)(h) of the Constitution of Kenya 2010.
ii) That the trial magistrate erred in law and facts by failing to establish this offence to be involuntary manslaughter.
iii) That the trail magistrate erred in law and facts by failing to note inconsistencies, contradictions and credibility of the prosecution witnesses.
iv) That the learned trial magistrate imposed 20 years imprisonment which is harsh, failing to put into consideration the objective of the sentencing policy guidelines and by disregarding the Appellants mitigating factors pursuant to Section 216 and 329 of the Criminal Procedure Code.
Evidence.
3. Anthony Mutunga Musyoka told the court that on 25 th September 2021, he was at Itetani market, inside Street 5 bar. That at around 7 p.m., the appellant went into the bar in company of Wambua, the deceased. The two were arguing about some money and that a fight ensued between them. Denis pushed the deceased who fell to the ground, and that is when Dennis stepped on his stomach several times, and then left. The witness stated that there was electricity light inside the bar, and that Denis was a person he had known for a period of one year.
4. PW2, Peter Nzioka was also at Itetani bar. His evidence was that he saw the appellant and the deceased sharing a table next to them. They started quarrelling, and the deceased fell down. That is when the witness saw the appellant stepping on the deceased chest. The appellant left for home, and the following day, PW 2, learned that the deceased had passed away.
5. In cross examination, he witness maintained that it was the appellant who hit the deceased, causing him to fall to the ground. He was able to identify the appellant very well and went on to describe the clothes he wore on that day. He also stated that the two were fighting and that the appellant was not armed.
6. Benedicto Kiwanuka is the proprietor of Street 5 Bar, situated at Itetani market. He told the court that on 26 th September 2021, he was called by his employees at around 8.30 p.m, who requested him to go and assist in taking Wambua, the deceased to hospital. He went tis bar and found the deceased lying on the ground. He then called a police officer, who visited the bar, and informed him that the deceased had since passed on.
7. Charles Kikui Ndewia, is a patron at the bar on the material day also stated that he saw the appellant and the deceased fighting. He witnessed the appellant stepping on the deceased’s chest. The following day, that is when he learned that Wambua had passed on.
8. William Mutisya Wambua is the brother to the deceased. He learned about the death of his brother when he received a phone call from his father. He also told the court that the appellant used to work for his uncle. That upon learning of the death, they called the police from Mbooni, who arrested the appellant.
9. Dr. Timothy Mbindyo is a medical Officer based at Tawa Sub County Hospital. On 27 th September 2021, at 1650 hours, he conducted a post mortem on the body of the deceased. The significant injury that he noted was that the deceased had suffered skull fracture twice. That the brain had a blood clot measuring 6 cm X 4 cm X 2 cm. He produced the post mortem report as an exhibit before court.
10. NO. 240509 IP Mohamed Abdullahi was the investigating officer. On the 25 th September 2021, he received information about the alleged offence from the OCS Kalawani police station, and he immediately visited the scene, where he found the body of the deceased. He noted that the body way lying on the back side and also noted shoe prints marks on the abdomen of the deceased. He secured the scene, and interrogated the people who were present at the bar the previous night.
11. He later took the suspect for questioning, and later charged him with the offence before court. A post mortem was conducted on the body of the deceased. He established that the deceased and the appellant had disagreed over payment of some money, and that this led to a brawl. That is when the appellant attacked the deceased, fatally injuring him.
12. When placed on his defence, the appellant gave a sworn defence, and told the court that on 25 th September 2021, he did his usual work and later slept. Later at around 10 p.m, the wife to his employer went to call him, and told him that they should go to the market because there was a relative who had a health issue. They went to the bar, where they found a group of people and police officers at the scene. The people pointed at him, and he was arrested and charged with the offence of manslaughter. He denied the charges, stating that the police at the scene checked his shoes and that prints on the deceases body did not match.
13. He denied the charges, and went on to state that he did not visit the bar until the time the wife to his boss went to call him from his house.
Analysis and Determination
14. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different conclusion”
15. On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic , the East Africa Court of Appeal stated on the duty of the court on a first appeal:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.”
16. The legal burden is the burden of proof is on the prosecution and remains constant throughout. According to established principles, burden of proof rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:
The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.”
17. Brennan J, addressed the standard of proof required in Criminal cases the case of Re Winship 397 US 358 {1970}, at page 36164 that:
“ The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.”
18. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 had this to say:
“ That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”
19. The appeal was canvassed by way of written submissions which have been duly considered and there is no need to rehash them.
20. It is with this background that the court must first analyse the evidence and the proceedings. Then it must address the issues and make findings on each of the issues. The appeal raises only two issues, that is:
a). Whether the offence was proved to the required standards.
b). Whether the trial court failed to comply with the provision of Article 50(2)(g) and h) of the Kenyan Constitution 2010.
21. Section 202 of the Penal Code provides:
“( 1) Any person who by an unlawful act or omission causes the death of another person is guilty of the felony termed manslaughter
(2) An unlawful omission is an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health, whether such omission is or is not accompanied by an intention to cause death or bodily harm."
22. Section 205 of the Penal Code reads:
“ Any person who commits the felony of manslaughter is liable to imprisonment for life."
23. The issue before this court is whether the prosecution has discharged the burden of proof of beyond reasonable doubt in respect with the charge of murder against the accused person based on the following elements.
a. The death of the deceased.
b. The death was unlawfully caused.
c. That additionally the accused was the person who committed the offence on the material day as against the deceased.
24. The prosecution case rested mainly on direct evidence. PW 1, 2, 3 were all revelers at Street 5 bar and stated that they saw the appellant seated on the same table with the deceased. That the two disagreed over some money and that a brawl erupted. All the witnesses were consistent in their evidence that the appellant pushed the deceased to the ground, and while on the ground, he stepped on him severally on the chest and then left. They are all eye witnesses, and gave a clear and consistent account that the appellant engaged the deceased in a confrontation, and attacked him after he hit him falling to the ground. Their evidence placed the appellant at the scene and directly linked him to the fatal act. The conditions for identification were favourable and his testimony remained unshaken.
25. As stated in Anjononi & others v Republic (1976-80) 1 KLR 1566 at page 1568:
“Recognition of an assailant is more satisfactory, more assuring, and more reliable...”
26. The medical evidence by PW 5 confirmed that the deceased suffered skull fracture to his head, which led to bold clot in the brain .This evidence corroborated the eye witness account as to the nature of the injury and the force applied. The witnesses maintained that the appellant pushed the deceased, who was drunk to the ground, and stepped on him severally. No other person was involved in the brawled and that caused of the injury was thus attributed solely to the appellant. The death took place at the scene and there is thus no possibility of another cause of death.
27. The appellant’s defence was that he was not at the scene. That he only went to the bar after he was called by the wife to his boss later that evening. This defence was duly considered and rejected. None of the identifying witnesses had prior grudges with the appellant, and had no reason to frame him up with the charges.
28. The totality of the evidence establishes that the appellant unlawfully caused the death of the deceased. The conviction for manslaughter was proper and supported by the evidence and is hereby upheld.
29. The second issue is that there was a mistrial due to non-compliance with article 50(2) (g) and (h) of the Constitution . The said article provides as follows:
( g) to choose, and be represented by, an advocate, and to be informed of this right promptly;
h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
30. The Court of Appeal in Manyeso v Republic [2023] KECA 827 (KLR) held thus:
“The appellant did not raise the issue of legal representation either in the trial court and the High Court. The appellant participated in the trial and cross-examined the witnesses, and it was not evident that he suffered any or any substantial injustice. The appellant’s rights to a fair trial on under articles 50(2)(g) and 50(2)(h) of the Constitution were not violated.”
31. The appellant dealt with the matter effectively. It is only that the case was overwhelming. There is no demonstration of the appellant suffering any substantial injustice. Looking at cross examination, the appellant was able to effectively raise all questions and there was no evidence that the situation could change.
31. The appellant was sentenced to serve twenty (20) years imprisonment. In the case of Wanjema v Republic (1971) E.A. 493 the court stated as follows: -
“An appellate court should not interfere with the discretion which a trial court has exercised as to the sentence unless it is evident that it overlooked some material factors, took into consideration some immaterial fact, acted on wrong principle or the sentence is manifestly excessive in the circumstances of the case.”
32. In determining the appropriate sentence in this case, I am guided by the predominant principles in Kigula v Republic (2009) UGSC 6 at p 41, the Ugandan court of Appeal said:
“ A trial does not stop at convicting a person. The process of sentencing a person is part of the trial. This is because the court will take into account the evidence, the nature of the offence and the circumstances of the case in order to arrive at an appropriate sentence. This is clearly evident where the law provides for a maximum sentence. The court will truly have exercised its function as an impartial tribunal in trying and sentencing a person. But, the court is denied the exercise of this function where the sentence has already been pre-ordained by the Legislature, as in capital cases. In our view, this compromises the principle of fair trial.”
33. The appropriate sentence can only be achieved when this court considers the objectives of sentencing in totality and the guidelines laid out in the “Muruatetu case”. The Judiciary sentencing policy guidelines are instructive. They are not elaborate as to sentences involving manslaughter, but they give a roadmap which courts ought to consider in coming up with an appropriate sentence.
34. The sentencing objectives in Kenya have been captured in the Sentencing Guidelines 2023 to be the following:
a. Retribution: to punish the offender for his/her criminal conduct in a just manner.
b. Deterrence: to deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.
c. Rehabilitation: to enable the offender reform from his/her criminal disposition and become a law-abiding person.
d. Restorative justice: to address the needs arising from the criminal conduct such as loss and damages.
e. Community protection: to protect the community by incapacitating the offender.
f. Denunciation: to communicate the community’s condemnation of the criminal conduct.
g. Reconciliation: To mend the relationship between the offender, the victim and the community.
h. Reintegration: To facilitate the re-entry of the offender into the society.
35. Additionally, in the “Muruatetu Case”, the Supreme Court outlined the following guidelines as being applicable when the Court was giving consideration to re-sentencing;“
(a) age of the offender;
(b) being a first offender;
(c) whether the offender pleaded guilty;
(d) character and record of the offender;
(e) commission of the offence in response to gender-based violence;
(f) remorsefulness of the offender;
(g) the possibility of reform and social re-adaption of the offender
(h) any other factor that the Court considers relevant.”
36 .In V M K v Republic [2015] eKLR ten years in jail was given for manslaughter. The trend has been that when the accused person uses a dangerous weapon in committing the crime, the court is likely to sentence the accused to life imprisonment.
37. I have considered the circumstances under which the offence was committed and the mitigation by the appellant. The trial magistrate, while sentencing the appellant and in light of the social inquiry report opined that the appellant was not remorseful. The circumstances do not allow a non-custodial sentence in my view and I am of the position that the accused person will benefit from a custodial sentence for purposes of rehabilitation.
38. I have considered the sentencing objectives in totality. The accused person is relatively a young person and it was established from the pre-sentence report that the community is still not safe in the meantime. In that regard, I find a custodial sentence to be appropriate and hereby reduce the sentence imposed by the trial court, and substitute it with a sentence of 10 years imprisonment.
39. According to section 333(2) of the Criminal Procedure Code , the court is under an obligation to consider the time spent by the accused person in custody, until one is convicted. I am conscious of the said period and the same has been factored in the final sentence.
40. Final Orders.
i) .The appeal on conviction lacks merit and is dismissed.
ii). The appeal on sentence partially succeeds. Sentence is here reviewed and the appellant is hereby sentenced to serve 10 years imprisonment to run from 12 th October 2021 when the appellant was remanded.
Right of Appeal in 14 days.
Orders accordingly.
DELIVERED, DATED AND SIGNED ON THIS 17 TH SEPTEMBER, 2026.
JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.
MARTHA MUTUKU - JUDGE.
In the presence of: -
Miss Omol for the State
Appellant in person.
Court Assistant – Mr. Kibet.
MAKUENI HCCRA NO.E035 OF 20252