REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
CRIMINAL APPEAL NO E004 OF 2025
EPHRAHIM DAVID AINEA……………………………………………….APPELLANT
VERSUS
REPUBLIC……………………………………………….………………..RESPONDENT
(Being an Appeal from the Judgment of Hon J.A Agonda (PM) delivered at Vihiga in the Principal Magistrate’s Court in Criminal Case No E487 of 2024 on 20 th January 2025)
JUDGMENT
INTRODUCTION
1. The Appellant herein was charged with two (2) counts of the offence of attempted murder contrary to section 220(a) of the Penal Code Cap 63 (Laws of Kenya).
2. The Learned Trial Magistrate, Hon J.A Agonda (PM) convicted him of both counts and sentenced him to thirty (30) years imprisonment.
3. Being dissatisfied with the said Judgement, on 21 st February 2025, he lodged an appeal herein. His Petition of Appeal was dated 20 th February 2025. He set out three (3) grounds of appeal. On 7 th July 2025, he filed Supplementary Grounds of Appeal dated 26 th June 2025. He set out three (3) Supplementary Grounds of Appeal.
4. His Written Submissions were dated 26 th June 2025 and filed on 7 th July 2025 while those of the Respondent were dated 22 nd September 2025 and filed on 23 rd September 2025. The Judgment herein is based on the said Written Submissions which both parties relied upon in their entirety.
LEGAL ANALYSIS
5. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion bearing in mind that it neither saw nor heard the witnesses testify.
6. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify, and thus make due allowance in that respect.
7. Having looked at the Appellant’s Grounds of Appeal, Amended Grounds of Appeal, his Written Submissions and those of the Respondent, this court noted that the issues that had been placed before it for determination were as follows:-
a. Whether or not the Prosecution proved its case beyond reasonable doubt; and
b. Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant herein by the Trial Court was lawful and/or warranted .
8. The court therefore dealt with the said issues under the following distinct and separate heads.
I. PROOF OF PROSECUTION’S CASE
1. Petition of Appeal Ground No (1), (2) and (3) and Supplementary Grounds of Appeal No (1) were dealt with under this head.
2. In determining whether or not the Prosecution had proved its case to the required standard, which in criminal cases was proof beyond reasonable doubt, this court considered the ingredients of the offence of attempted murder.
3. It is now settled that the ingredients of the offence of attempted murder are intent to commit the offence ( mens rea ) and the overt act ( actus reus ).This court dealt with the grounds of appeal under the following distinct and separate heads.
A. ACTUS REUS
4. The Appellant did not submit on this issue. On the other hand, the Respondent relied on the case of Abdi Ali Bare vs Republic [2015] KECA 794 (KLR) it was held that in a case of attempted murder, the accused person must have taken a step towards committing murder, that whether there was an attempt to commit murder was a matter of fact and that the act must have been sufficiently proximate to murder.
5. It submitted that it proved beyond reasonable doubt that the Appellant attempted to cause death of the complainants, which it did through the evidence of PW 1, PW 2 and PW 3 and consequently, the elements of actus reus were proved.
6. Hannah Afandi (hereinafter referred to as “PW 1”) said the Appellant was like her step-son. She told the Trial Court that she was in her house in the kitchen and her son was in the sitting room when she saw the Appellant through the kitchen window enter the gate while holding a panga. She said that she did nothing but he pushed the main door and entered into the house, he pushed her and cut her with the said panga on the forehead and on both hands. She averred that she screamed and her son came to her rescue. She added that her son held the Appellant and chased him.
7. She further stated that she went to Uguma Dispensary where the cuts were stitched and she was admitted for a few days. At the time of giving her testimony, she said that she was still healing and could not work. She was emphatic that she had no dispute with the Appellant and she did not know why he attacked her.
8. Elwane Mabilo (hereinafter referred to as “PW 2”) was married to the Appellant’s brother. She testified that she was in her house when she heard Mama Nedi screaming. She averred that she went outside and met the Appellant carrying a panga and that when he saw her, he chased her into maize planation. She said that she managed to escape and also heard PW 1 screaming. Her further evidence was that Mama Nedi had been cut on the forehead, and on the jaw towards the neck.
9. Charles Angote (hereinafter referred to as “PW 3”) told the Trial Court that that the Appellant attacked his mother, PW 1. He said he heard her screaming in the kitchen and saw the Appellant cutting his mother’s head and when she tried to block, her arms were cut. He stated that he was able to disarm the Appellant with the help of his younger brother.
10. Boaz Aliona (hereinafter referred to as “PW 5”) was a Clinical Officer at Vihiga Health Centre. He testified that both PW 1’s and Nedi Kageha’s clothes were soaked in fresh blood. He stated that PW 1 had a cut wound on the head and limbs while Nedi Kageha had deep cut wound on upper side of the face, deep cut wound in both limbs and right side, cut wound on the right side of the thumb and injuries were classified as grievous harm. He tendered in evidence P3 Forms their P3 Forms.
11. Notably, the evidence of Nedi Kahega was dispensed with by the Trial Court due to her age and sickness.
12. In his both his examination-in-chief and cross-examination, the Appellant admitted to having attempted to kill PW 1 and his mother, Nedi Kageha and he sought for forgiveness.
13. In the instant case, the Appellant had done more than mere preparatory acts. He attacked PW 1 and his mother the complainants, one being his mother and the other one being his step mother with a panga and as a result, they sustained grievous injuries.
14. It therefore follows that the elements of actus reus were proved to the required standard.
B. MENS REA
15. The Appellant submitted that the bhang and alcohol he had taken impaired his brain. He pointed that the victims also testified that they had no conflict with him over the pension and they did not know the reason as to why he acted like that on the material day. He asserted that it was only PW 2 who mentioned the issue of pension as a motive of him attacking the victims. He added that PW 2 also contradicted himself when he stated that his mother was attacked yet she was not receiving pension.
16. He stated that the assertions that he cut the victims since they had refused to share with him the pension were mere suspicions because he never mentioned his motive during the act. He maintained that motive was not proved and he cited the case of Nzuki vs Republic (1993) eKLR where the court held that the prosecution was not obliged to prove motive, but just as its presence could strengthen a case, its absence could also weaken a case.
17. He further asserted that the Prosecution did not demonstrate that he first armed himself with a panga before taking bhang and alcohol and that the Trial Court filled the gap itself. He submitted that the Prosecution did not prove the intent to commit the offence.
18. In rejoinder, the Respondent placed reliance on the cases of R vs Whybrow (1951) 35 CR APP REP, 141 and Cheruiyot vs Republic (1976-1985) EA where the common thread was that in an attempted murder, the intent became the principal ingredient of the crime. It added that in the case of Cheruiyot vs Republic (Supra), it was held that the essence of the crime was the deliberate intent to murder and that it had to be shown that the accused person had a positive intention to unlawfully cause death, which intention had to be manifested by an overt act.
19. It argued that the Appellant had the intention to kill since he was armed with a panga and he assaulted the victims with it, which clearly showed that his intention was to injure the victims.
20. Mens rea can be inferred from the circumstances of the case. As was held in the case of Tubere s/o Ochen vs Republic [1945] EACA , it was held that malice aforethought could be inferred from the circumstances in which the offence was committed by considering the nature of the weapon used against the deceased to inflict injuries, the part of the body targeted by the attacker whether vulnerable or not, the manner in which the lethal weapon was used whether in furtherance to cause grievous harm the assailant used the weapon repeatedly and the conduct of the accused before, during and after the attack of the deceased.
21. Notably, Appellant raised a defence of intoxication to the effect that he had taken bhang and alcohol that adversely affected his brain.
22. Section 13(1) and (2) of the Penal Code provides that:-
1. Save as provided in this section, intoxication shall not constitute a defence to any criminal charge.
2. Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and—
a. the state of intoxication was caused without his consent by the malicious or negligent act of another person; or
b. the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.
23. The Court of Appeal in Bakari Magangha Juma vs Republic [2016] KECA 162 (KLR) emphasised the proviso to Section 13 of the Penal Code afforded an accused person defence in case of involuntary intoxication, temporary insanity, incapability of forming a specific intent, which is an element of the offence charged, referred to intoxication or drunkenness negating mens rea.
24. There was no evidence that the alcohol and bhang was given to the Appellant negligently and malicious by another person, there was no evidence that he was temporarily insane or otherwise at the time of the act and there is no claim or evidence that the state of intoxication negated malice aforethought since the Appellant was too drunk to form the specific intention required. No one testified to him having been drunk or under the influence of alcohol.
25. In the instant case, mens rea could be inferred from the injuries the victims sustained, the weapon that was used, being a panga and the targeted area, being the head, which pointed to an intention by the Appellant to cause grievous harm. He intended to kill PW 2 and his mother, Nedi Kageha.
26. This court was, therefore, persuaded that the Prosecution proved its case to the required standard, which in criminal cases is proof beyond reasonable doubt that the Appellant was guilty of the offence of attempted murder as the Trial Magistrate correctly determined.
27. In the premises foregoing, Petition of Appeal Grounds No (1), (2) and (3) and Supplementary Grounds of Appeal No (1) were not merited and the same be and are hereby dismissed.
II. SENTENCE
28. Supplementary Grounds of Appeal No (2) and (3) are dealt with under this head.
29. The Appellant submitted that the Trial Court erred in not making a finding that the sentence of attempted murder contrary to Section 220 (a) of the Penal Code was in conflict with the sentence for attempt to commit an offence contrary to Section 389 of the Penal Code. He placed reliance in the case of David Mwangi Mugo vs Republic (2011) EKLR HCCRA No. 1263 of 2002 where the court cited with approval the case of Godfrey Mutiso vs Republic Appeal No. 17/2008 (UR) and held that that the appellant therein who had been convicted of an offence of attempted robbery was not liable to imprisonment for a term exceeding seven (7) years as provided in Section 389 of the Penal Code.
30. On its part, the Respondent invoked Section 220 of the Penal Code. It submitted that the sentence of thirty (30) years was reasonable and it urged this court not to interfere with the same as the Appellant had not shown any reason to warrant interference.
31. Notably, Section 220 of the Penal Code states as follows:-
“Any person who-
a. Attempts unlawfully to cause the death of another; or
b. With intent unlawfully to cause the death of another does any act, or omits to do any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life, is guilty of a felony and is liable to imprisonment for life.”
32. Further, Section 389 of the Penal Code provides that:-
“Any person who attempts to commit a felony or a misdemeanour is guilty of an offence and is liable, if no other punishment is provided, to one-half of such punishment as may be provided for the offence attempted, but so that if that offence is one punishable by death or life imprisonment he shall not be liable to imprisonment for a term exceeding seven years.”
33. This court agreed with the Appellant that the Trial Court erred in having sentenced him to thirty (30) years as the maximum he could have been sentenced to was seven (7) years imprisonment. Indeed, Section 200(b) and Section 389 of the Penal Code had to be read together.
34. Notably, the Appellant was convicted on both counts. As the offence of attempted murder occurred during the same transaction, the sentence of seven (7) years on each count would run concurrently.
35. This court had due regard to Section 14 (1) of the Criminal Procedure Code that states as follows:-
“Subject to subsection (3), when a person is convicted at one trial of two or more distinct offences, the court may sentence him, for those offences, to the several punishments prescribed therefor which the court is competent to impose; and those punishments when consisting of imprisonment shall commence the one after the expiration of the other in the order the court may direct, unless the court directs that the punishments shall run concurrently.”
36. Turning to the issue of remission, the Appellant further faulted the Trial Court for not granting him a discount of up to (one third) of the sentence arrived at after considering both the aggravating and mitigating factors on account of his plea of guilty pursuant to Paragraph 4.3 to 4.3.8 of the Sentencing Policy Guidelines ,2023.
37. He submitted that he had pleaded guilty in the earliest opportunity and it was his advocate who advised him not to plead guilty and demanded for a fresh plea. He pointed out that he was remorseful and pleaded for forgiveness. He urged this court to grant him a discount of one third (1/3) of the sentence as he was entitled by the law to a least prescribed sentence pursuant to Article 25(c) and Article 50(2) (p) of the Constitution of Kenya 2010.
38. On its part, the Respondent submitted that the Appellant was given an opportunity to mitigate at trial stage and although that the Probation Pre-sentence Report was not favorable, the Trial Court nonetheless meted out to him a lenient sentence.
39. It added that the one third (1/3) reduction principle as stated in the Sentencing Policy Guidelines was not a mandatory reduction and the court retained the discretion to apply the principle or not. It stated that the sentence that was meted out was to instill a sense of responsibility for his actions and also allow for his rehabilitation. It urged this court to dismiss the appeal.
40. Although the Appellant had pleaded guilty to the charges at his first appearance before the Trial Court, he later on changed his plea to that of “Not guilty” and the trial proceeded. The principle of one third (1/3) was, therefore, not applicable in this case.
41. Going further, this court was mandated to consider the period he spent in remand while his trial was on going as provided in Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).
42. Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) provides that:-
“Subject to the provisions of section 38 of the Penal Code (cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody ” (emphasis court).
43. Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines provides that:-
“ The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing:…
Time already spent in prison by the convict…”
44. The requirement under Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in Ahamad Abolfathi Mohammed & Another vs Republic (Supra).
45. A perusal of the Charge Sheet indicated that the Appellant was arrested on 12 th June 2024. Although he was granted bond, he did not seem to have posted the same. He was convicted on 20 th January 2025 and sentenced on 10 th February 2025. This was a period that ought to be taken into account while computing his sentence.
46. A perusal of the court proceedings indicated that the Trial Court never indicated that it had considered the period he had spent in custody during trial before sentencing him. It was the view of this court that it ought to taken into account the period that the Appellant had remained in prison as his trial was ongoing in line with the provisions of Section 333 (2) of the Penal Code.
47. In the premises foregoing, Supplementary Grounds of Appeal No (2) was merited and the same be and is hereby allowed. On the other hand, Supplementary Grounds of Appeal No (3) was not merited and the same be and is hereby dismissed.
DISPOSITION
48. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Petition of Appeal dated 20 th February 2025 and filed on 21 st February 2025 and Supplementary Grounds of Appeal dated 26 th June 2025 and filed on 7 th July 2025 were partially merited only on sentence. His conviction be and is hereby upheld as it was safe.
49. It is hereby directed that the sentence of thirty (30) years that was meted upon the Appellant the Principal Magistrate’s Court in Criminal Case No E487 of 2024 delivered at Vihiga on 20 th January 2025 by Hon J.A Agonda (PM) be and is hereby set aside and/or vacated and replaced with an order that the Appellant be and is hereby sentenced to seven (7) years imprisonment on both Counts, which sentences shall run concurrently. in
50. It is also hereby directed that the period between 12 th June 2024 and 9 th February 2025 be and is hereby taken into account while computing his sentence pursuant to Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).
51. It is so ordered.
DATED and DELIVERED at VIHIGA this 29 th day of April 2026
J. KAMAU
JUDGE
HCCRA E004 OF 20252
IN THE HIGH COURT OF KENYA AT VIHIGA
CRIMINAL APPEAL NO E004 OF 2025
EPHRAHIM DAVID AINEA……………………………………………….APPELLANT
VERSUS
REPUBLIC……………………………………………….………………..RESPONDENT
(Being an Appeal from the Judgment of Hon J.A Agonda (PM) delivered at Vihiga in the Principal Magistrate’s Court in Criminal Case No E487 of 2024 on 20 th January 2025)
JUDGMENT
INTRODUCTION
1. The Appellant herein was charged with two (2) counts of the offence of attempted murder contrary to section 220(a) of the Penal Code Cap 63 (Laws of Kenya).
2. The Learned Trial Magistrate, Hon J.A Agonda (PM) convicted him of both counts and sentenced him to thirty (30) years imprisonment.
3. Being dissatisfied with the said Judgement, on 21 st February 2025, he lodged an appeal herein. His Petition of Appeal was dated 20 th February 2025. He set out three (3) grounds of appeal. On 7 th July 2025, he filed Supplementary Grounds of Appeal dated 26 th June 2025. He set out three (3) Supplementary Grounds of Appeal.
4. His Written Submissions were dated 26 th June 2025 and filed on 7 th July 2025 while those of the Respondent were dated 22 nd September 2025 and filed on 23 rd September 2025. The Judgment herein is based on the said Written Submissions which both parties relied upon in their entirety.
LEGAL ANALYSIS
5. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion bearing in mind that it neither saw nor heard the witnesses testify.
6. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify, and thus make due allowance in that respect.
7. Having looked at the Appellant’s Grounds of Appeal, Amended Grounds of Appeal, his Written Submissions and those of the Respondent, this court noted that the issues that had been placed before it for determination were as follows:-
a. Whether or not the Prosecution proved its case beyond reasonable doubt; and
b. Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant herein by the Trial Court was lawful and/or warranted .
8. The court therefore dealt with the said issues under the following distinct and separate heads.
I. PROOF OF PROSECUTION’S CASE
1. Petition of Appeal Ground No (1), (2) and (3) and Supplementary Grounds of Appeal No (1) were dealt with under this head.
2. In determining whether or not the Prosecution had proved its case to the required standard, which in criminal cases was proof beyond reasonable doubt, this court considered the ingredients of the offence of attempted murder.
3. It is now settled that the ingredients of the offence of attempted murder are intent to commit the offence ( mens rea ) and the overt act ( actus reus ).This court dealt with the grounds of appeal under the following distinct and separate heads.
A. ACTUS REUS
4. The Appellant did not submit on this issue. On the other hand, the Respondent relied on the case of Abdi Ali Bare vs Republic [2015] KECA 794 (KLR) it was held that in a case of attempted murder, the accused person must have taken a step towards committing murder, that whether there was an attempt to commit murder was a matter of fact and that the act must have been sufficiently proximate to murder.
5. It submitted that it proved beyond reasonable doubt that the Appellant attempted to cause death of the complainants, which it did through the evidence of PW 1, PW 2 and PW 3 and consequently, the elements of actus reus were proved.
6. Hannah Afandi (hereinafter referred to as “PW 1”) said the Appellant was like her step-son. She told the Trial Court that she was in her house in the kitchen and her son was in the sitting room when she saw the Appellant through the kitchen window enter the gate while holding a panga. She said that she did nothing but he pushed the main door and entered into the house, he pushed her and cut her with the said panga on the forehead and on both hands. She averred that she screamed and her son came to her rescue. She added that her son held the Appellant and chased him.
7. She further stated that she went to Uguma Dispensary where the cuts were stitched and she was admitted for a few days. At the time of giving her testimony, she said that she was still healing and could not work. She was emphatic that she had no dispute with the Appellant and she did not know why he attacked her.
8. Elwane Mabilo (hereinafter referred to as “PW 2”) was married to the Appellant’s brother. She testified that she was in her house when she heard Mama Nedi screaming. She averred that she went outside and met the Appellant carrying a panga and that when he saw her, he chased her into maize planation. She said that she managed to escape and also heard PW 1 screaming. Her further evidence was that Mama Nedi had been cut on the forehead, and on the jaw towards the neck.
9. Charles Angote (hereinafter referred to as “PW 3”) told the Trial Court that that the Appellant attacked his mother, PW 1. He said he heard her screaming in the kitchen and saw the Appellant cutting his mother’s head and when she tried to block, her arms were cut. He stated that he was able to disarm the Appellant with the help of his younger brother.
10. Boaz Aliona (hereinafter referred to as “PW 5”) was a Clinical Officer at Vihiga Health Centre. He testified that both PW 1’s and Nedi Kageha’s clothes were soaked in fresh blood. He stated that PW 1 had a cut wound on the head and limbs while Nedi Kageha had deep cut wound on upper side of the face, deep cut wound in both limbs and right side, cut wound on the right side of the thumb and injuries were classified as grievous harm. He tendered in evidence P3 Forms their P3 Forms.
11. Notably, the evidence of Nedi Kahega was dispensed with by the Trial Court due to her age and sickness.
12. In his both his examination-in-chief and cross-examination, the Appellant admitted to having attempted to kill PW 1 and his mother, Nedi Kageha and he sought for forgiveness.
13. In the instant case, the Appellant had done more than mere preparatory acts. He attacked PW 1 and his mother the complainants, one being his mother and the other one being his step mother with a panga and as a result, they sustained grievous injuries.
14. It therefore follows that the elements of actus reus were proved to the required standard.
B. MENS REA
15. The Appellant submitted that the bhang and alcohol he had taken impaired his brain. He pointed that the victims also testified that they had no conflict with him over the pension and they did not know the reason as to why he acted like that on the material day. He asserted that it was only PW 2 who mentioned the issue of pension as a motive of him attacking the victims. He added that PW 2 also contradicted himself when he stated that his mother was attacked yet she was not receiving pension.
16. He stated that the assertions that he cut the victims since they had refused to share with him the pension were mere suspicions because he never mentioned his motive during the act. He maintained that motive was not proved and he cited the case of Nzuki vs Republic (1993) eKLR where the court held that the prosecution was not obliged to prove motive, but just as its presence could strengthen a case, its absence could also weaken a case.
17. He further asserted that the Prosecution did not demonstrate that he first armed himself with a panga before taking bhang and alcohol and that the Trial Court filled the gap itself. He submitted that the Prosecution did not prove the intent to commit the offence.
18. In rejoinder, the Respondent placed reliance on the cases of R vs Whybrow (1951) 35 CR APP REP, 141 and Cheruiyot vs Republic (1976-1985) EA where the common thread was that in an attempted murder, the intent became the principal ingredient of the crime. It added that in the case of Cheruiyot vs Republic (Supra), it was held that the essence of the crime was the deliberate intent to murder and that it had to be shown that the accused person had a positive intention to unlawfully cause death, which intention had to be manifested by an overt act.
19. It argued that the Appellant had the intention to kill since he was armed with a panga and he assaulted the victims with it, which clearly showed that his intention was to injure the victims.
20. Mens rea can be inferred from the circumstances of the case. As was held in the case of Tubere s/o Ochen vs Republic [1945] EACA , it was held that malice aforethought could be inferred from the circumstances in which the offence was committed by considering the nature of the weapon used against the deceased to inflict injuries, the part of the body targeted by the attacker whether vulnerable or not, the manner in which the lethal weapon was used whether in furtherance to cause grievous harm the assailant used the weapon repeatedly and the conduct of the accused before, during and after the attack of the deceased.
21. Notably, Appellant raised a defence of intoxication to the effect that he had taken bhang and alcohol that adversely affected his brain.
22. Section 13(1) and (2) of the Penal Code provides that:-
1. Save as provided in this section, intoxication shall not constitute a defence to any criminal charge.
2. Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and—
a. the state of intoxication was caused without his consent by the malicious or negligent act of another person; or
b. the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.
23. The Court of Appeal in Bakari Magangha Juma vs Republic [2016] KECA 162 (KLR) emphasised the proviso to Section 13 of the Penal Code afforded an accused person defence in case of involuntary intoxication, temporary insanity, incapability of forming a specific intent, which is an element of the offence charged, referred to intoxication or drunkenness negating mens rea.
24. There was no evidence that the alcohol and bhang was given to the Appellant negligently and malicious by another person, there was no evidence that he was temporarily insane or otherwise at the time of the act and there is no claim or evidence that the state of intoxication negated malice aforethought since the Appellant was too drunk to form the specific intention required. No one testified to him having been drunk or under the influence of alcohol.
25. In the instant case, mens rea could be inferred from the injuries the victims sustained, the weapon that was used, being a panga and the targeted area, being the head, which pointed to an intention by the Appellant to cause grievous harm. He intended to kill PW 2 and his mother, Nedi Kageha.
26. This court was, therefore, persuaded that the Prosecution proved its case to the required standard, which in criminal cases is proof beyond reasonable doubt that the Appellant was guilty of the offence of attempted murder as the Trial Magistrate correctly determined.
27. In the premises foregoing, Petition of Appeal Grounds No (1), (2) and (3) and Supplementary Grounds of Appeal No (1) were not merited and the same be and are hereby dismissed.
II. SENTENCE
28. Supplementary Grounds of Appeal No (2) and (3) are dealt with under this head.
29. The Appellant submitted that the Trial Court erred in not making a finding that the sentence of attempted murder contrary to Section 220 (a) of the Penal Code was in conflict with the sentence for attempt to commit an offence contrary to Section 389 of the Penal Code. He placed reliance in the case of David Mwangi Mugo vs Republic (2011) EKLR HCCRA No. 1263 of 2002 where the court cited with approval the case of Godfrey Mutiso vs Republic Appeal No. 17/2008 (UR) and held that that the appellant therein who had been convicted of an offence of attempted robbery was not liable to imprisonment for a term exceeding seven (7) years as provided in Section 389 of the Penal Code.
30. On its part, the Respondent invoked Section 220 of the Penal Code. It submitted that the sentence of thirty (30) years was reasonable and it urged this court not to interfere with the same as the Appellant had not shown any reason to warrant interference.
31. Notably, Section 220 of the Penal Code states as follows:-
“Any person who-
a. Attempts unlawfully to cause the death of another; or
b. With intent unlawfully to cause the death of another does any act, or omits to do any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life, is guilty of a felony and is liable to imprisonment for life.”
32. Further, Section 389 of the Penal Code provides that:-
“Any person who attempts to commit a felony or a misdemeanour is guilty of an offence and is liable, if no other punishment is provided, to one-half of such punishment as may be provided for the offence attempted, but so that if that offence is one punishable by death or life imprisonment he shall not be liable to imprisonment for a term exceeding seven years.”
33. This court agreed with the Appellant that the Trial Court erred in having sentenced him to thirty (30) years as the maximum he could have been sentenced to was seven (7) years imprisonment. Indeed, Section 200(b) and Section 389 of the Penal Code had to be read together.
34. Notably, the Appellant was convicted on both counts. As the offence of attempted murder occurred during the same transaction, the sentence of seven (7) years on each count would run concurrently.
35. This court had due regard to Section 14 (1) of the Criminal Procedure Code that states as follows:-
“Subject to subsection (3), when a person is convicted at one trial of two or more distinct offences, the court may sentence him, for those offences, to the several punishments prescribed therefor which the court is competent to impose; and those punishments when consisting of imprisonment shall commence the one after the expiration of the other in the order the court may direct, unless the court directs that the punishments shall run concurrently.”
36. Turning to the issue of remission, the Appellant further faulted the Trial Court for not granting him a discount of up to (one third) of the sentence arrived at after considering both the aggravating and mitigating factors on account of his plea of guilty pursuant to Paragraph 4.3 to 4.3.8 of the Sentencing Policy Guidelines ,2023.
37. He submitted that he had pleaded guilty in the earliest opportunity and it was his advocate who advised him not to plead guilty and demanded for a fresh plea. He pointed out that he was remorseful and pleaded for forgiveness. He urged this court to grant him a discount of one third (1/3) of the sentence as he was entitled by the law to a least prescribed sentence pursuant to Article 25(c) and Article 50(2) (p) of the Constitution of Kenya 2010.
38. On its part, the Respondent submitted that the Appellant was given an opportunity to mitigate at trial stage and although that the Probation Pre-sentence Report was not favorable, the Trial Court nonetheless meted out to him a lenient sentence.
39. It added that the one third (1/3) reduction principle as stated in the Sentencing Policy Guidelines was not a mandatory reduction and the court retained the discretion to apply the principle or not. It stated that the sentence that was meted out was to instill a sense of responsibility for his actions and also allow for his rehabilitation. It urged this court to dismiss the appeal.
40. Although the Appellant had pleaded guilty to the charges at his first appearance before the Trial Court, he later on changed his plea to that of “Not guilty” and the trial proceeded. The principle of one third (1/3) was, therefore, not applicable in this case.
41. Going further, this court was mandated to consider the period he spent in remand while his trial was on going as provided in Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).
42. Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) provides that:-
“Subject to the provisions of section 38 of the Penal Code (cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody ” (emphasis court).
43. Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines provides that:-
“ The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing:…
Time already spent in prison by the convict…”
44. The requirement under Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in Ahamad Abolfathi Mohammed & Another vs Republic (Supra).
45. A perusal of the Charge Sheet indicated that the Appellant was arrested on 12 th June 2024. Although he was granted bond, he did not seem to have posted the same. He was convicted on 20 th January 2025 and sentenced on 10 th February 2025. This was a period that ought to be taken into account while computing his sentence.
46. A perusal of the court proceedings indicated that the Trial Court never indicated that it had considered the period he had spent in custody during trial before sentencing him. It was the view of this court that it ought to taken into account the period that the Appellant had remained in prison as his trial was ongoing in line with the provisions of Section 333 (2) of the Penal Code.
47. In the premises foregoing, Supplementary Grounds of Appeal No (2) was merited and the same be and is hereby allowed. On the other hand, Supplementary Grounds of Appeal No (3) was not merited and the same be and is hereby dismissed.
DISPOSITION
48. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Petition of Appeal dated 20 th February 2025 and filed on 21 st February 2025 and Supplementary Grounds of Appeal dated 26 th June 2025 and filed on 7 th July 2025 were partially merited only on sentence. His conviction be and is hereby upheld as it was safe.
49. It is hereby directed that the sentence of thirty (30) years that was meted upon the Appellant the Principal Magistrate’s Court in Criminal Case No E487 of 2024 delivered at Vihiga on 20 th January 2025 by Hon J.A Agonda (PM) be and is hereby set aside and/or vacated and replaced with an order that the Appellant be and is hereby sentenced to seven (7) years imprisonment on both Counts, which sentences shall run concurrently. in
50. It is also hereby directed that the period between 12 th June 2024 and 9 th February 2025 be and is hereby taken into account while computing his sentence pursuant to Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).
51. It is so ordered.
DATED and DELIVERED at VIHIGA this 29 th day of April 2026
J. KAMAU
JUDGE
HCCRA E004 OF 20252