Barasa & another v Republic (Criminal Appeal E006 of 2026) [2026] KECA 2025 (KLR) (25 September 2026) (Judgment)

Page 1 of 9 IN THE COURT OF APPEAL AT KAKAMEGA [CORAM: NYAMWEYA, NGETICH & RADIDO, JJ.A] CRIMINAL APPEAL NO. E006 OF 2026 (FORMERLY KSM NO. E147 OF 2022) BETWEEN CHRISPINUS WANYONYI BARASA.............1ST APPELLANT ROBERT WAFULA NATE............................2ND APPELLANT AND REPUBLIC ...................................................................... RESPONDENT (Being an appeal from the judgment of the High Court of Kenya at Bungoma (S.N. Riechi, J.) dated 22nd September 2021 in BUNGOMA HCCRC NO. 16 OF 2015) ************************* JUDGMENT OF THE COURT 1. The appellants were charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the amended information were that on 7th May 2015 at Rurare village, Mwalie sub- location, Malakisi location, in Bungoma West Sub-county, the appellants murdered Pius Masete Namawachi. They were convicted and sentenced to 30 years' imprisonment. Aggrieved by that decision, the appellants appealed to Page 2 of 9 this Court vide a Memorandum of Appeal dated 18 th May 2026. 2. When the appeal came up for hearing on 20th May 2026, the appellants, who were incarcerated at Kibos Maximum Security Page 3 of 9 Prison, appeared virtually and confirmed their presence. They were represented by Mr. Charles Onyango, learned counsel, while Mr. E. Otieno , learned Senior Prosecution Counsel, appeared for the respondent. Both parties relied on their written submissions and chose to highlight specific issues. 3. In their Memorandum of Appeal and written submissions, the appellants raised seven (7) grounds of appeal, which can be condensed into three main complaints. First, that the trial judge erred in law and fact by convicting the appellants solely on an alleged dying declaration that was fraught with contradictions, lacked proper authentication, and was uncorroborated. Second, that the trial judge erred in rejecting the appellants' alibi defences without proper basis, and in accepting the contradictory evidence of PW8. Third, that the sentence of 30 years was manifestly harsh, arrived at without a pre-sentence report, and failed to consider the time the appellants spent in remand custody as required by Section 333(2) of the Criminal Procedure Code. 4. The prosecution called eight witnesses. The deceased was severely burnt on the night of 7th May 2015 and Page 4 of 9 succumbed to his injuries on 20 th June 2015. PW1, PW2, and PW3 testified to finding the deceased at a gate, burnt head downwards, with the scene smelling of paraffin. PW5, Dr. Harun Ombogi, produced the post-mortem report (P Exhibit 2) prepared by Dr. Peter Kosgei, which Page 5 of 9 established the cause of death as lack of oxygen due to burns and loss of blood secondary to 4th -degree burns. 5. The conviction hinged on a dying declaration. PW6 (Sgt. Morris Kawa) visited the deceased in hospital the day after the attack and noted the deceased identified Robert (the 2nd appellant) as his attacker. On 13th June 2015, PW4 (Sgt. Judith Okubwi) recorded a formal statement from the deceased (P Exhibit 1) in the presence of PW1, PW2, and PW7. In this statement, the deceased narrated that he had been drinking chang'aa at the 1 st appellant’s home. A quarrel ensued when the 2 nd appellant demanded that the deceased buy him alcohol. As the deceased left, he was attacked by the appellants and a third person, who robbed him, poured kerosene on him, and set him ablaze. 6. PW8, Joshua Wamacho, who was alleged to have helped extinguish the fire, contradicted the prosecution's case. He denied seeing the appellants at the scene or putting out the fire. He claimed he was arrested, beaten, tortured, and forced to sign a police statement. The appellants gave sworn defences of alibi. The 1 st appellant testified that he was away skinning a dead cow and goat Page 6 of 9 at a neighbour's home until 11:00 pm that night. The 2nd appellant stated he was at work as a conductor until 8:00 pm and only learned of the incident three days later. Page 7 of 9 7. As the first appellate court, our duty is to reassess and analyze the evidence independently and reach our own conclusions, while allowing for the fact that we did not see or hear the witnesses (See Okeno v Republic [1972] EA 32 ). 8. Mr. Onyango submitted that the trial court erred in relying on a dying declaration that was neither signed nor thumb printed by the deceased, despite the post-mortem indicating his hands were uninjured. He further pointed out glaring contradictions in the prosecution's evidence, particularly regarding the amount of money allegedly stolen (Kshs 29,500 vs. Kshs 500), and the contradictory testimony of PW8. 9. To secure a conviction for murder under Section 203 of the Penal Code, the prosecution must prove the fact of death, that the death was caused by an unlawful act by the appellants, and that the appellants acted with malice aforethought - see Anthony Ndegwa Ngari v Republic [2014] eKLR. The fact and cause of death are not in dispute. Under Section 33(a) of the Evidence Act, statements made by a deceased person as to the cause of their death are admissible as dying Page 8 of 9 declarations. 10. The appellants contended that the statement (P Exhibit 1) should be discountenanced because it was not signed or thumb printed. However, as correctly noted during the hearing, there is no legal requirement that the maker of a dying declaration must sign it. The Page 9 of 9 admissibility of a dying declaration does not depend on a signature, but on whether the statement was indeed made by the deceased regarding the cause of his death. The deceased's hands were severely burnt, which would have made signing or thumbprinting difficult, but this does not render the oral statement, which was reduced into writing by PW4, inadmissible. 11. Regarding the contradictions, particularly the amount of money stolen, the law acknowledges that discrepancies are bound to occur in trials. Under Section 382 of the Criminal Procedure Code, an appellate court will only interfere if discrepancies are so fundamental as to cause prejudice to the accused. As held in Richard Munene v Republic [2018] KECA 186 (KLR), it is only when inconsistencies are substantial and fundamental that an accused person is entitled to the benefit of doubt. 12. While there were minor discrepancies regarding the exact sum stolen and the number of attackers, the core material facts of the declaration remained consistent: the deceased was drinking at the 1st appellant's home, a quarrel ensued with the 2 nd appellant over alcohol, and Page 10 of 9 the appellants pursued him, poured kerosene on him, and set him on fire. This narration was corroborated by the crime scene evidence on the smell of paraffin and the state of the deceased's body; and the testimony of PW1, PW2, and PW7 who were present when the deceased narrated his ordeal to PW4. Page 11 of 9 13. In Maina & another v Republic [2025] KECA 2296 (KLR), citing Choge v Republic [1984] KLR 19 , this Court reaffirmed that while a dying declaration is admissible, it must be received with circumspection and preferably corroborated. The statement here was made voluntarily after the deceased had stabilized, and was given in the presence of multiple witnesses, eliminating the possibility of fabrication. 14. On PW8’s contradictory testimony, it is evident from the record that he was a hostile witness who had been summoned under a warrant of arrest. His claim of torture and his denial of seeing the appellants does not destroy the prosecution's case. The prosecution's case did not rely on PW8 for identification; it relied on the deceased's own dying declaration. We find no reason to disturb the trial court's finding on conviction. The nature of the injuries, being pouring kerosene on a human being and setting them ablaze clearly demonstrates malice aforethought under Section 206 of the Penal Code. The appeal against conviction lacks merit and is dismissed. 15. On sentencing, Mr. Onyango submitted that the trial Page 12 of 9 court, in exercising its discretion under Francis Karioko Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] eKLR , decision to impose a 30- year term, failed to call for a pre-sentence report, thereby failing to Page 13 of 9 comprehensively consider the appellants' backgrounds. Further, it was submitted that the trial court failed to comply with Section 333(2) of the Criminal Procedure Code, which mandates that a sentence account for the period spent in custody prior to conviction. Mr. Otienorightly conceded that the period spent in remand was not factored into the sentence. 16. In Ogolla s/o Owuor v Republic (1954) EACA 270, this Court held that an appellate court will interfere with a sentence if the trial judge acted upon wrong principles or overlooked material factors. Further, in Bethwel Wilson Kibor v Republic [2009] eKLR, this Court emphasized the mandatory nature of Section 333(2) of the Criminal Procedure Code. 17. The record confirms that the 1 st appellant was in custody from 13th July 2015 until his release on bond on 27th February 2018, spending 2 years and 7 months 13 days in remand. The 2nd appellant was arrested on 27 th May 2017 and was not released on bond, spending over 4 years in custody prior to his conviction on 22 nd September 2021. The period spent in custody ought to have been deducted from the sentence imposed by the trial court. Page 14 of 9 18. Additionally, a perusal of the record confirms that the trial court did not call for or consider a pre-sentence report. While the Judiciary Sentencing Policy Guidelines recommend calling for such a report in felony cases to balance mitigating and aggravating Page 15 of 9 factors, it is important to note that these guidelines are not statutory provisions. The failure to call for a pre- sentence report, while a departure from best practice, does not automatically render the sentence improper or illegal. However, it does mean the court lacked a comprehensive social inquiry into the appellants before depriving them of their liberty for an extended period. 19. Given the brutal and heinous nature of the offence where the deceased was doused in kerosene and set ablaze, a lenient sentence would be inappropriate. In addition, to the aggravating factors, it is also notable that the trial Court took into account the fact that the appellants were first offenders and their mitigation in imposing the sentence of 30 year’s imprisonment. We therefore find that there were no factors that were overlooked by the trial Court to justify a reduction of the sentence. 20. The appeal against sentence therefore succeeds only to the extent that the period of 2 years, 7 months and 13 days the 1 st appellant spent in remand custody from 13 th July 2015 until his release on bond on 27th February 2018, and the period of 4 years, 3 months and 25 days the 2 nd appellant spent in remand custody from 27 th May 2017 Page 16 of 9 until his conviction on 22nd September 2021 shall be taken into account in the computation of the sentence of 30 years' imprisonment imposed on each of the appellants, in accordance with Section 333(2) of the Criminal Procedure Code. For the Page 17 of 9 avoidance of doubt, the term of imprisonment for each of the appellants shall run from the date of the appellants’ conviction by the trial Court on 22nd September 2021. 21. It is so ordered. Dated and delivered at Kakamega this 25th day of September, 2026. P. NYAMWEYA ............................. .. JUDGE OF APPEAL R. NGETICH ............................ .. JUDGE OF APPEAL RADIDO S. OKIYO ............................ .. JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR