Mbaabu & 3 others v Republic (Criminal Appeal 62, 63, 64 & 65 of 2020 (Consolidated)) [2025] KECA 2196 (KLR) (11 December 2025) (Judgment)

Mbaabu & 3 others v Republic (Criminal Appeal 62, 63, 64 & 65 of 2020 (Consolidated)) [2025] KECA 2196 (KLR) (11 December 2025) (Judgment) Neutral citation: [2025] KECA 2196 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Criminal Appeal 62, 63, 64 & 65 of 2020 (Consolidated) K M'Inoti, A Ali-Aroni & PM Gachoka, JJA December 11, 2025 Between John Peter Mbaabu 1st Appellant Kenneth Njagi 2nd Appellant Caroline Kambura 3rd Appellant Vincent Muriuki 4th Appellant and Republic Respondent (An appeal from the conviction and sentence by the High Court of Kenya at Chuka (R.K. Limo, J.) delivered on 3rd February 2020 in HCCRC No. 6 of 2016 [Criminal Case 6 of 2016](http://kenyalaw.org/caselaw/cases/view/189502/) ) Judgment 1.The appellants, John Peter Mbaabu, Kenneth Njagi, Caroline Kambura and Vincent Muriuki, were jointly charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence were that on 30th July 2016 at Gichwe village Kithitu sub-location within Tharaka Nithi County, the appellants murdered Abinja Thara Muchiri. 2.The appellants were arraigned before the Chuka High Court in HCCRC No. 6 of 2016. They entered a plea of ‘not guilty’. After a full trial, the appellants were convicted as charged. They were each sentenced to serve 35 years imprisonment. It is those findings that have galvanized the present appeal. 3.The 1st, 2nd and 3rd appellants filed separate notices of appeal dated 13th February 2020. The 4th appellant, on his part, filed a notice of appeal dated 17th February 2020. The appellants also filed individual undated grounds of appeal raising a combined total of 27 grounds disputing the findings of the learned judge. 4.The appeals were consolidated and we have taken the liberty to summarize those grounds as follows: that the prosecution failed to prove the ingredients of the offence of murder; that the identification of the perpetrators was not satisfactory as the offence occurred at night; and that the prosecution’s evidence was marred with contradictions, inconsistencies, afterthoughts, discrepancies, incredibility and unreliability. 5.The appellants continued that that their defences were rejected without sufficient reason; that the trial court wrongly interpreted the words “umundi ni umundi”; that the investigations done were shoddy; that the prosecution witnesses were not only untrustworthy but also framed the appellants, as they did not commit the offence; that crucial witnesses were not called to the stand; and that the 3rd appellant was only dragged into the proceedings as a wife of the 1st appellant while the 4th appellant was his casual employee. For those reasons, the appellants prayed that their appeals be allowed, their convictions quashed and their sentences set aside. 6.The appeal was heard virtually on 2nd September 2025 in the presence of the appellants. The 1st and 2nd appellants were jointly represented by learned counsel Mr. Mshila, while learned counsel Ms. Ndiangui was present for the 3rd and 4th appellants. On its part, the respondent was represented by Ms. Mengo, Principal Prosecution Counsel. The parties relied on their respective written submissions to argue the appeal. 7.The 1st and 2nd appellants’ written submissions and list of authorities dated 16th June 2025 framed six issues for determination. They commenced by arguing that they were not properly identified as the perpetrators of the offence. This is because the offence occurred at night when there was a high probability of poor visibility. Furthermore, the only available light was that of a lamp which did not shine where the offence took place, severely compromising the identity of the offenders. They then submitted that the evidence of the prosecution, particularly that of PW1, PW2 and PW4, was flawed with contradictions and inconsistencies. 8.Reproducing their defences, the 1st and 2nd appellants submitted that they were improperly rejected, yet they gave credible accounts regarding their whereabouts at the time of the incident and the circumstances of their arrest. Citing several decisions, they submitted that the prosecution failed to discharge its burden of proof to the required standard in proving that the elements of murder were all conjunctively established. In that regard, they opined that the prosecution failed to establish that the 1st and 2nd appellants were the perpetrators and possessed malice aforethought. 9.Penultimately, the 1st and 2nd appellants submitted that the trial judge failed to properly interpret the words stated in the local dialect. In their view, an independent translator ought to have been called to translate the words properly. They submitted that the trial judge was not impartial, with the resultant effect of infringing on their right to a fair trial. They questioned the reliability of the eyewitnesses, stating that it is not conceivable that they did not do anything and instead watched their deceased relative being murdered without seeking help or raising an alarm. 10.Lastly, they posited that the prosecution’s evidence was marred with loopholes because some murder weapons were neither recovered nor submitted in evidence. Further, the one machete that was recovered, though had blood stains, was never taken for DNA analysis. Further, they questioned why the government analyst was not summoned to adduce evidence or explain why he never submitted his report. For those reasons, they prayed that their appeals be allowed. 11.The 3rd and 4th appellants filed joint written submissions dated 23rd May 2025. Similarly, they augmented their innocence by submitting that the conditions surrounding the occurrence of the offence could not conclusively identify them as the perpetrators. It was also not established to what degree the light that shone from the lamp in the house spread since the deceased’s body was found 15 meters away from the houses where the eye witnesses were hiding. 12.In addition, the torch allegedly used by the 3rd appellant was not adduced in evidence. In fact, they continued, this was the reason the witnesses were unable to describe the apparel the assailants had worn that night. Though some of the witnesses were hiding in the banana plantations, they argued that it was not clear what distance they hid away from the crime scene, thereby casting doubt whether they had sight when the offence took place. 13.The 3rd and 4th appellants continued that though some items were recovered in the 1st appellant’s house, no inventory was prepared. Either way, they were neither cross-referenced by the witnesses in their testimonies nor submitted for forensic analysis. They further urged this Court to consider that the 3rd appellant addressed the issue of the clothes that were produced at trial. She explained that the clothes were brought to the station by one Nyaga as belonging to Nkonge Karuru, a suspect who was lynched by the public on 31st July 2016. For those reasons they prayed that their appeals be allowed. 14.The respondent opposed the appeal. Ms. Mengo filed written submissions dated 22nd May 2025. She abridged the evidence laid out by the prosecution and the grounds raised by the appellants impugning the trial court’s findings and submitted that the direct evidence of PW1, PW2 and PW4, as well as the circumstantial evidence adduced before the trial court, conclusively left no doubt that the appellants committed the offence of murder. 15.On the ingredient of malice aforethought, counsel submitted that it was proved to the required standard, taking into account that the appellants viciously attacked the deceased with machetes, and inflicted fatal injuries on her. This clearly demonstrated that they knew or were aware that their actions would lead to serious injuries that could cause the death of the deceased. Ms. Mengo further argued that the appellants were well known to PW1, PW2 and PW4 thereby establishing their identity beyond any shadow of a doubt. This was further fortified by the fact that they were identified at the scene with the aid of the lantern light and recognized through their voices, as they were PWI, PW2 and PW4’s neighbours. 16.Ms. Mengo added that the appellants’ defences were considered and rightly rejected. She explained that PW1 did not scream as she was afraid. Additionally, there were no contradictions in the evidence presented by the prosecution and the investigations were not shoddy as argued by the appellants. On the contrary, all the ingredients of the offence of murder were proved beyond reasonable doubt. For those reasons, Miss. Mengo prayed that the appeals be dismissed. 17.As a first appellate court, our bounden duty is to reappraise and re-evaluate the evidence and come to our own independent findings while giving allowance to the fact that, unlike the trial judge, we did not have the advantage of hearing and seeing the witnesses [See Kiilu & Another vs. Republic [2005] KLR]. 18.The record before us has captured the evidence as follows: PW1 Purity Kaari was a child of the deceased and the sister of PW2 Peter Gitonga. The 1st appellant is PW1 and PW2’s cousin. He is married to the 3rd appellant. The 2nd appellant is their nephew, while the 4th appellant was employed by the 1st appellant. PW1’s evidence was that on the night of 30th July 2016, she was at her home heading to sleep at 11:40 p.m. when she heard a motorcycle stop outside the 1st appellant’s house. 19.At the homestead, PW1 was living in her house while the deceased was also living in her house within the homestead.The lights in PW1’s house were off as she was preparing to go to bed. The 1st appellant lived within the same compound. PW1 heard the 1st appellant say “umundi ni umundi” translated to mean “let us fight”. Thereafter, PW1 heard some stones being thrown at the roof of her house. A similar incident had occurred about a week ago and was reported to the police station by PW1. 20.PW1 then heard her deceased mother’s house door being knocked so hard that it prompted the deceased to start screaming. Fleeing for safety, PW1 jumped out of her house window and went into hiding in the rabbit’s kennel. It was located directly opposite the deceased’s house and was approximately 2 – 3 meters from the crime scene. There were also banana plantations that were approximately 10 – 15 metres away from the crime scene. She saw all the appellants together with Mutembei and Nkonge, who she recognized as her neighbours. 21.PW1 saw the 1st appellant and Nkonge push the deceased’s door open. The 1st appellant was wearing dull trousers and a light blue jacket. PW1 also saw Mutembei, who remained outside. PW1 saw them clearly because of the lantern light emanating from the deceased’s house. The 3rd appellant, also present, shone the torchlight on the deceased. Suddenly, PW1 saw the appellant and Nkonge drag the deceased out of her house. She then saw the 1st appellant cut the deceased on the head with a machete and then stepped on her. In the process, the deceased fell. 22.While the 1st appellant was cutting the deceased, PW1 recalled him telling Nkonge: “Bamo Fanya kazi”. Translating the dialect, PW1 testified that “bamo” meant a person of the same age. Nkonge joined in and started cutting the deceased. Mutembei and the 4th appellant then proceeded to PW1’s house and broke down the door. PW1 also saw the 2nd appellant enter her house. He thereafter returned to the crime scene and attacked the deceased with a machete. 23.During the ordeal, the deceased pleaded for mercy, reminding the 1st appellant that she had previously taken care of him when he was indisposed. However, the 1st appellant insulted the deceased and continued to assault her. The 3rd appellant then took the machete from the 1st appellant and cut the deceased on the leg and ankle, stating that she also wanted to play a part. She was wearing a skirt and a brown jumper. PW1 recognized her voice. After the ordeal, which lasted about 10 – 15 minutes, the assailants retreated to the 1st appellant’s home. She recalled that all the assailants except the 3rd appellant had their own machete. She further testified that she rushed to her house and called PW2. Thereafter, PW1, PW2, PW4 and Maurice Mawira, emerged from their hiding spots and found the deceased lying in a pool of blood. 24.PW1 thereafter called the assistant chief Mr. Dominic Murithi, and informed him of what had transpired. They were later joined and surrounded by neighbours. At 6:00 a.m., police officers from Ntume police station arrived and collected the deceased’s body. Thereafter, the 1st and 3rd appellants were arrested while the 2nd and 4th appellants were arrested on a later date. She later learned that Nkonge was lynched by area residents. 25.PW1 testified that her family never held a grudge against the 1st appellant. In cross examination, she denied being an illicit brewer or partaking in drugs. 26.PW2 corroborated that he was PW1’s brother and the deceased’s son. He testified that he was at his home that fateful night. At around 11. 50 p.m., PW2 heard a stone hitting the roof of PW1’s house. He also heard the sound of a motorbike. He had come to visit his mother. He had house in a shared compound with the deceased. He was living together with his nephew Maurice Mawira and PW4. 27.PW2 recalled that the impact of the stone on the roof was loud.Together with Maurice Mawira and PW4, they went outside to check the source of the noise. They found some people at the gate, who began throwing stones at them. This prompted them to hide behind a nearby banana plantation, which was 10 meters away. They feared for their lives. 28.While hiding, PW2, saw Mutembei alias Karuru breaking down the door of the deceased’s house. The 3rd appellant, the 1st appellant’s wife, held a torch that shone through the deceased’s house. There was also light emanating from a lamp in the deceased’s house. That was when he also saw the 1st appellant, who is his cousin, standing next to Mutembei. He also saw Nkonge as well as the 4th appellant, who was an employee of the 1st appellant. The 2nd appellant and Vincent stood near PW1’s house. These were the people whom he had seen earlier at the gate. They were armed with machetes. 29.PW2 saw the 1st appellant, Mutembei and Nkonge enter the deceased’s house by force. They emerged with his mother, stepping on her and she fell. He added that the 1st appellant was their cousin, while the 2nd appellant was their relative. They began to inflict cuts on her with a machete, prompting the deceased to scream. The deceased asked the 1st appellant why they wanted to kill her and if there was nothing good she had ever done for him. He responded saying: “Nakuuwa kabisa.” 30.PW2’s evidence was that they all cut the deceased, with the 3rd appellant being the last person to cut her legs before leaving her for dead. He heard the 3rd appellant stating that she also needed to do something before inflicting cut wounds on the deceased. Thereafter, they went to the 1st appellant’s house. PW2 explained that he took no action out of fear and furthermore, could not defend himself. 31.After the ordeal that lasted 25 minutes, PW2 saw some light emerging from the rabbit house. He found PW1 trying to call her with her mobile phone. Later, PW1 called the assistant chief. They found their mother lying in a pool of blood and were later joined by neighbours. PW2 testified that the land they occupied was to be distributed to all family members. He testified that he did not witness a quarrel the deceased had with the 1st and 3rd appellants a week before the incident. 32.Prior to the incident, PW2 recalled that Nkonge used to visit the 1st appellant. He was emphatic that PW1 never brought criminals to the homestead. He also recalled the 1st appellant being an illicit brewer. He remembered that since the death of his father, the 1st and 3rd appellants harbored ill feelings towards his mother. In fact, the 1st appellant had previously insulted his mother. That incident was reported at the police station. He testified that Nkonge was killed by area residents and Mutembei was still at large. He denied that they were accomplices because they failed to raise an alarm. 33.PW3 Dr. Justus Kitili conducted the postmortem on the deceased on 9th August 2016 at 10:00 a.m. He observed that the deceased suffered cuts on the back of her head. She had blood oozing from her mouth and nostrils and had a deep cut on her thigh. She had suffered a skull fracture and a blood clot on the occipital part of her brain. PW3 formed the opinion that the deceased died from a severe injury inflicted by a sharp object. The postmortem report was produced in evidence. 34.PW4’s evidence was that on 30th July 2016 at 11:00 p.m., he was at home when he heard stones being thrown on the roofs of their houses. He was with PW2, his employer and Maurice Mawira. On investigation, they found people throwing stones while armed with machetes. They were six in number. They also had spotlights enabling PW4 to identify them. 35.Afraid that they would be attacked, PW4 and company went into hiding in a nearby banana plantation. They hid in different places. He saw the 1st appellant and Mutembei breaking down the deceased’s door. They then dragged her outside and started cutting her with their machetes. He heard the deceased ask: “John, you are killing me?” He knew the appellant and recognized his voice. He then saw the 2nd appellant going to PW1’s house to look for her. After five of the assailants had finished cutting the deceased, the 3rd appellant took one machete and said: “Wacha nikate akikufa.” She then cut the deceased. He recognized the 3rd appellant as the 1st appellant’s wife. 36.After the incident, the six assailants left and went home. PW4 emerged from hiding together with PW2 and Maurice Mawira. They found the deceased lifeless. PW1 called the assistant chief. The police came later and collected the deceased’s body. PW4 stated that he witnessed the whole incident with the aid of light emanating from the lantern lamp in the deceased’s house. Furthermore, the 3rd appellant shone a torch in the direction of the deceased’s house. He remembered that during the ordeal, the 1st appellant said: “leo ni leo.” while kicking the deceased. 37.PW4, in cross examination, denied that he was the deceased’s lover and dealt with illegal trading. He added that he did not know why the deceased was murdered and wasn’t aware that some people had threatened PW1. He also added that the 2nd appellant and 4th appellant, whom he recognized by voice, also tried to access PW1’s house looking for her. 38.PW5 CIP Christopher Wahariya, the investigating officer, testified that they proceeded to the scene at around 4:00 a.m. following the report. He proceeded with two of his colleagues and found the deceased lying outside her house in a pool of blood. The body had multiple injuries. The body was identified by PW1 and PW2, who also gave them information as to who the suspects were. 39.PW5 found the 1st and 3rd appellants in their home. He arrested them and recovered blood-stained clothes, that is, a dark grey pair of trousers, a jacket believed to belong to the 1st appellant, and a blood-stained machete. They were produced in evidence. The 4th appellant was arrested in the midst of the crowd at the deceased’s home. The deceased’s body was taken to Chuka mortuary as the 1st, 3rd and 4th appellants were placed in police cells. 40.During the day at 2:00 p.m., PW5 returned to the crime scene.He found the 2nd appellant, who had been cornered by an angry mob. He had been attacked and sustained multiple injuries. He was taken to Chuka Hospital for treatment and was admitted for one week. Meanwhile, Nkonge was lynched and died on 31st July 2016. He added that the exhibits were taken to the government chemist for forensic analysis. It was his understanding during his investigations that a land dispute had arisen between the 1st appellant and the deceased and was the motive for the murder. 41.At the close of the prosecution’s case, the trial court formed the opinion that the prosecution had established a prima facie case against the appellants. They were placed on their defences and gave sworn evidence. 42.The 1st appellant, DW1, confirmed that the 2nd appellant was a neighbour, the 3rd appellant was his wife while the 4th appellant was his casual labourer. He also confirmed that the deceased was his aunt, having married his father’s brother. He was PW1 and PW2’s cousin. He maintained his innocence by stating that on 30th July 2016, he was at home nursing an injured leg. His cousin’s wife woke him at 4:00 a.m. when he was arrested by police officers. During his arrest, he was accused by PW1 and PW2 of murdering the deceased. 43.DW1 testified that he held no grudge against the deceased, who was like a mother to him. He lived 200 meters away from her house, but his house was burnt down by PW1 and PW2 after the false accusations were made against him. He accused PW1 of framing him because they differed on account of her propensity to bring criminals to her home. One of them was Morris Gitonga. He recalled that the said Morris Gitonga was eventually murdered. He suggested that the deceased may have been murdered by the people PW1 invited to her home. He denied hearing any screams that night. He also added that in April 2016, PW1 was attacked. He denied that the police recovered any items at his home. 44.DW2, the 3rd appellant, denied committing the offence. She described the deceased as a mother figure to her during her lifetime. She held no grudge against her nor PW1 & PW2, her husband’s cousins. She similarly confirmed that DW1 was her husband, the 2nd appellant was a neighbour and the 4th appellant was their employee. She testified that she was at home on the fateful night and was only made aware of the deceased’s death when she was arrested the following morning. 45.DW2 added that she did not hear anyone scream that night.She put forward that if indeed PW1 and PW2 saw her murdering the deceased that night, they ought to have raised an alarm. Giving the circumstances leading to her arrest, she testified that police officers came to their home and informed them that they were under arrest, together with her husband, for killing the deceased person. She was surprised. She denied that the police recovered any exhibits. She advanced that clothes belonging to Nkonge were brought to the police station but he was dead. She emphasized that they all lived in harmony with the deceased, PW1 and PW2. 46.DW3, the 2nd appellant, testified that on 30th July 2016, he spent the night at his house having worked the entire day. He was the deceased’s neighbour. He denied being at the crime scene as testified by PW1. On 31st July 2016, while on his way back from the shop, DW3 met an irate crowd that assaulted him. He denied committing the offence. He added that he had a secret love affair with PW1 from 2015 to 2016. 47.DW4, the 4th appellant, maintained that he worked on 30th July 2016 for the 1st appellant and was arrested on 31st July 2016 while working for the 1st appellant. He stated that he was home asleep with his brother. He opined that the only reason he was arrested was that he worked for DW1. 48.We have carefully considered this appeal. For the prosecution to sustain a conviction on a charge of murder, the following crucial ingredients must be established: the death of the deceased; the cause of death; the death of the deceased was caused by an unlawful act or omission caused by the accused person(s); and that the accused person(s) had malice aforethought (See Nyambura & Others vs. Republic [2001] KLR 355). 49.On the deceased’s death and its cause, PW3 testified that he conducted the autopsy on the deceased person Abinja Thara on 9th August 2016 at 10:00 a.m. The body was identified by PW1 and PW2, the deceased’s children. According to his postmortem report, the deceased suffered cuts on the back of her head. She had blood oozing from her mouth and nostrils and had a deep cut on her thigh. She suffered a skull fracture and blood clot on the occipital part of her brain. His medical opinion was that the deceased died from a severe injury inflicted by a sharp object. That proves the death of the deceased and its cause to the required standard. 50.The crux of the appeal is whether an unlawful act or omission by the appellants herein caused the death of the deceased. It is not in doubt that the deceased was subjected to a very vicious attack and no human being should be subjected to this kind of painful death. The question that we must answer is whether the appellants were properly identified and whether the evidence established that it is the appellants who committed this heinous crime. Once we answer that question, it will dispose of the main grounds that were raised by the appellants. 51.The prosecution relied on the direct eyewitness accounts of PW1, PW2 and PW4. We have already summarized that evidence, but at the risk of repetition, we shall revisit that evidence when necessary. The appellants’ main argument was that since it was dark, the witnesses could not identify them beyond peradventure. In fact, it was their submission that the light was not bright enough. We find that the argument must fail for two reasons. Firstly, it was an afterthought as the issue of the intensity of the light was never challenged in evidence. Secondly, all witnesses explained that the lantern light sufficiently illuminated the scene where the attack was taking place to enable PW1, PW2 and PW4 to recognize them comprehensively. Furthermore, the 3rd appellant’s torch also gave light to the crime scene. 52.It is also important to point out that the witnesses were all near the murder scene. They all saw the appellants inflict stab wounds on the deceased, which, as PW3 testified, ultimately led to her death. The appellants inflicted several injuries on the deceased, leading to her brutal death. When the deceased pleaded for mercy, none of them stopped assaulting her. It is common ground that the appellants were well known to PW1, PW2, and PW4. All these persons were familiar to each other either as neighbors, employees or relatives. This was therefore a case of recognition rather than identification of a stranger. They all knew each other before the events of that night, which lasted 10 – 25 minutes. The 1st and 3rd appellants were also heard talking and their voices were recognized by PW1, PW2 and PW4. 53.Several words were uttered by the appellants during the commission of the offence. Those utterances enabled PW1, PW2 and PW4 to recognize their voices. Though all witnesses were hiding in separate areas surrounding the crime scene, they, by and large, corroborated the circumstances leading up to the commission of the crime. 54.We are thus satisfied, as with the trial judge, that the evidence was consistent and not contradictory as submitted by the appellants. The evidence clearly demonstrates that the appellants committed an unlawful act leading to the deceased’s death. Clearly, they were on a preplanned mission to eliminate the deceased. 55.It must be pointed out that the eyewitnesses were all afraid and hid in silence. Though the appellants posited that they ought to have screamed, they cannot be faulted for not raising an alarm and certainly cannot be accused as accomplices absent cogent evidence. Indeed, PW2 and PW4 were chased away by the appellants when they first went to check the source of the noise that they had heard and thus nothing turns on the fact that they later watched the assault silently in horror. 56.The record shows that PW1, PW2, and PW4 were subjected to a rigorous cross-examination but their evidence remained unshaken. The prosecution's evidence remained watertight. We are satisfied that the witnesses greatly corroborated the evidence confirming that the appellants unlawfully inflicted fatal wounds upon the deceased. They were properly identified and recognized as relatives and neighbours. This was done with the help of the lantern lamp, the torch light and the period the incident lasted. 57.The appellants also challenged the evidence of the prosecution as having contradictions that rendered the conviction unsafe. However, the contradictions in the evidence of the prosecution were too minor and did not occasion a miscarriage of justice. They were not material as to affect the substance of the prosecution’s case. [See Twehangane Alfred vs. Uganda, Criminal Appeal No. 139 of 2001, [2003) UGCA]. That argument fails and is dismissed. 58.The trial court also considered the defences raised by the appellants. We find that they failed to shake the evidence of the prosecution and further failed to explain their whereabouts in detail. Withal, we find that there was no proof that the prosecution witnesses had framed the appellants. In our view and as earlier pointed out, these witnesses were truthful. 59.Lastly, we are alive to the fact that not all weapons were preserved and adduced in evidence. Furthermore, the machete and clothes that were produced in evidence were not taken for forensic analysis. It was certainly incumbent on the prosecution to take the necessary steps to ensure that such evidence was forensically tested to link it to the appellants. However, having said that, and considering the evidence in totality, we are satisfied that with the evidence on record, the prosecution discharged its burden of proof, the absence of forensic analysis notwithstanding. This is a case of direct evidence of the deceased’s fatal assault by culprits well known to PW1, PW2, and PW4. 60.The last ingredient is that of malice aforethought. Section 206 of the Penal Code gives instances of the same in the following circumstances:“a.An intention to cause death or to do grievous harm to any person whether such person is the person actually killed or not;b.Knowledge that the act or omission causing death will cause the death of or grievous harm to some person, whether such person is the person killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not or by a wish that it may be caused;c.An intent to commit a felony;d.An intention to facilitate the escape from custody of a person who has committed a felony.” 61.In considering this crucial ingredient, we also embody the ruminations of this Court, constituted differently, in the case of Bonaya Tutu Ipu & another vs. Republic [2015] KECA 335 (KLR) that held as follows:“It is in rare circumstances that the intention to cause death is proved by direct evidence. More frequently, that intention is established by or inferred from the surrounding circumstances. In the persuasive decision of Chesakit V. Uganda, CR. APP. NO. 95 OF 2004, the Court of Appeal of Uganda stated that in determining in a charge of murder whether malice aforethought has been proved, the court must take into account factors such as the part of the body injured, the type of weapon used, if any, the type of injuries inflicted upon the deceased and the subsequent conduct of the accused person. Earlier in REX V. Tubere S/o Ochen (1945) 12 EACA 63, the former Court of Appeal for Eastern Africa stated thus on the issue:“It (the court) has a duty to perform in considering the weapon used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an inference of malice will flow more readily from the case, say, of a spear or knife than from the use of a stick…” 62.Though all witnesses testified that no grudge existed between the appellants and the deceased, we find that the appellants used dangerous weapons, namely, machetes, to inflict fatal injuries on the deceased. In fact, they only left when the deceased was lifeless. The 1st appellant was heard uttering the words “umundi ni umundi”. Those words were translated by PW1 to mean “let us fight”. Though the appellants argued that an interpreter was necessary to properly translate those words, that translation was not challenged at trial. We therefore find that argument an afterthought. In any event, whatever the words meant, they were uttered during the commission of the crime. 63.The 1st appellant was also heard telling Nkonge: “Bamo Fanya kazi”. Those utterances prompted him to inflict injuries to the deceased with his machete. The 1st appellant was also heard saying: “leo ni leo” while assaulting her. When the deceased asked the 1st appellant why they wanted to kill her, the 1st appellant responded saying: “Nakuuwa kabisa.” The 3rd appellant was also heard saying: “Wacha nikate akikufa.” 64.The above expressions clearly demonstrate that the 1st and 3rd appellants had every intention of murdering the deceased. Furthermore, they repeatedly inflicted severe cut injuries on her in the company of the 2nd and 4th appellants, notwithstanding the deceased’s plea to spare her life. The machete blade caused serious injuries, leading to the deceased’s death. In view of the foregoing, we have no iota of doubt that malice aforethought was proved beyond reasonable doubt. 65.As regards the sentence, the appellants were each sentenced to 35 years imprisonment. The trial judge considered the factors advanced by the prosecution and the appellants’ mitigation. The court also took into account the submissions from the victim’s family, as well as the principles enunciated in the locus classicus, decision of Muruatetu & Another vs Katiba Institute & 5 others [2017] KESC2 (KLR). The deceased died egregiously. We find that the sentence meted out by the trial court was lawful. 66.For those reasons, the appeal on conviction and sentence fails and it is hereby dismissed in its entirety. Orders accordingly. **DATED AND DELIVERED AT NYERI THIS 11 TH DAY OF DECEMBER 2025.****K. M’INOTI****.....................................****JUDGE OF APPEAL****ALI-ARONI****.....................................****JUDGE OF APPEAL****M. GACHOKA C.Arb, FCIArb.****.....................................****JUDGE OF APPEAL** I certify that this is a True copy of the originalSigned**DEPUTY REGISTRAR**