Two death row convicts to serve 15 years after appeal

Two death row convicts will now serve 15 years in jail after winning an appeal case.

The two are accused of assaulting their neighour to death in Kakamega after accusing him of killing their father. 

Milton Amugune Luvisia and Hasting Ngarama Mbohi alias Boyi were convicted in 2016.

They were sentenced to death after the High court found them guilty of killing Emmanuel Lihanda Kisango.

Being aggrieved by the decision, they appealed. 

However, on December 16, 2022, judge Paul Kiage, Mumbi Ngugi and Francis Tuiyot ruled that they were satisfied that in the mitigation offered on behalf of the appellants and the pre-sentencing report was sufficient to enable them review the sentence imposed. 

"The final order of the Court is that the appeal on conviction is dismissed. The one on sentence is allowed to the extent that the sentence of death is set aside and substituted with a term of 15 years imprisonment, with effect from the date the appellants were first sentenced," the judges ruled.

The evidence presented before the trial court was that Timona Kisago Aluvi, the father of the deceased, was asked by his houseboy, Laban Chagwi, to go and see the deceased in the kitchen.

He went and found the deceased lying on Chagwi's bed, looking weak. The deceased then told Aluvi that he had been thoroughly beaten by the appellants, Luvisia and Mbohi, both of whom Aluvi knew as they had been casual workers at his home. 

The deceased told him that the two had beaten him because his elder brother, one Robert, had killed Mbohi’s father. The deceased then got up and walked, with bended back, to the toilet.

On coming back from the toilet, the deceased went into their main house where his mother was sitting. 

Aluvi noticed that the deceased had a swelling on the right cheek and his T-shirt was muddy on the right side of the abdomen. 

When he pulled up the deceased’s T-shirt to see what was under the muddy patch on the T-shirt, he saw a clear mark of a foot. When questioned about it, the deceased told him that he had fallen.

Aluvi testified that the deceased could not eat but sat and remained silent on the sofa set.

"He had blood oozing from his mouth. He then stood up, knelt down with his head on the sofa and by 10pm, he was dead," he said.

Chagwi, worked in Aluvi’s home. He was in the kitchen on the material day when the deceased entered and asked for water.

The deceased then told him that he had been beaten by Luvisia and Mbohi and then fell from the chair where he had been sitting.

He rushed to the main house to call Aluvi and they returned to the kitchen to find the deceased lying on the bed. 

Victor Salano Udiaga also testified that he was at his shop at Nabwani market between 7 – 8pm on June 28, 2014 when the deceased came to the shop and asked for Sona Moja pain killers.

After the deceased bought the pain killers, he stepped aside and immediately thereafter, a young Luo woman also appeared at the shop and bought unga.

Before she left, Luvisia started talking to her.

When the deceased saw him talking to her, he asked him why he was seducing the young lady while he was aware that his uncle was a friend of the young woman.

A scuffle then ensued between the deceased and Luvisia. 

Udiaga could see the two pushing and pulling each other as though they wanted to fight.

He said he could see them clearly with the help of the electric light at his shop as they were only two-three metres away.

Thereafter, he said, the two moved away from his view.

Udiaga said at about 9pm, as he prepared to close the shop and go home, he saw the deceased sitting alone outside the shop.

The deceased stood up and told him that, “those boys have beaten me and have injured me.”

The deceased told Udiaga that the boys he was referring to were Luvisia and Mbohi.

He claimed they had beaten him on allegations that his elder brother had killed Mbohi’s father. 

A postmortem on the body of the deceased conducted by Dr Emirundu indicated that the deceased was about 35 years old.

It showed that his spleen was found to be deformed and there was blood in the abdomen from a ruptured spleen.

The doctor testified that the deceased died as a result of cardiopulmonary haemorrhage into the abdomen.

In his defence, Luvisia said that he did not know what led to the death of the deceased. 

It was his testimony that he had no grudge against the deceased and the entire case against him was a frame up by Aluvi because he had abandoned his employment.

Mbohi also denied killing the deceased. He also denied meeting the deceased on the material day.

Mbohi said he did not know what caused his father's death as he was still very young.