Wilson Kinyua and Ibrahim M’Inanga v Republic

Court of Appeal, Nyeri

10th November 1980

Madan, Miller & Potter JJ A

Criminal Appeal No 70 of 1980

Criminal law – evidence – confession - taking into consideration against co-accused - confession not suitable as basis for prosecution case - Evidence Act (cap 80), section 32(1).

Criminal law – evidence – corroboration - retracted confession - desirability of corroboration - no corroboration - trial judge acting on retracted confession without satisfying himself unhesitatingly that it was true.

W and I were arrested and charged with the murder of the deceased, whose burnt body had been discovered in a forest. Both made charge and caution statements. In his statement, W denied any involvement in the killing. I,however, admitted that he had been involved in the murder and further stated that W, who had paid for his help, had also been involved. At their trial the prosecution adduced evidence that W and I had been seen with the deceased some days before the body had been found. After a trial within a trial I’s confession statement was admitted in evidence, although he claimed that he had been tortured by the police. The prosecution adduced no other material evidence relating to the murder. In an unsworn statement in Court, I said that he lived in another place and had not been away from it at the time of the murder. W also made an unsworn statement in which he again denied any involvement in the murder. The trial judge found that the facts pointed overwhelmingly and conclusively to the guilt of W and I. However, he did not look for any corroboration of I’s statement, despite his repudiation of it, and also ruled that it could be taken into consideration (under section 32(1) of the Evidence Act) against W. Both W and I were convicted of murder and appealed.

Held:

The appeal would be allowed, because:

1. Although the judge was entitled to take I’s confession statement into consideration against W, it was accomplice evidence needing corroboration and the more so since I had repudiated the statement; under section 32(1) of the Evidence Act such statement could only lend assurance to other evidence against W and could not be used as the basis of the prosecution case. Anyuma s/o Omolo v R (1953) EACA 218, Gopa s/o Gidamebanya v R (1953) 20 EACA 318 and Muthigo s/o Mwigai v R (1954) 21 EACA 267 applied.
2. Although corroboration of I’s confession statement was not necessary in law, the Court should look for the corroboration of material particulars in a statement which had been retracted, unless it was able to come to the unhesitating conclusion that the statement was true; in the present case the judge had neither looked for corroboration nor warned himself of the need to consider all the material points and circumstances and whether the confession could be other than true. Ogero Omurwa v The Republic [1979] Kenya LR 241, CA, followed. Tuwamoi v Uganda [1967] EA 84, EACA, considered.

Cases referred to in judgment:

1. Anyuma s/o Omolo v R (1953) 20 EACA 218.
2. Gopa s/o Gidamebanya v R (1953) 20 EACA 318.
3. Muthigo s/o Mwigai v R (1954) 21 EACA 267.
4. Odhiambo (Joseph) v The Republic (1980) unreported, Criminal Appeal No 4 of 1980, Mombasa.
5. Ogero Omurwa v The Republic [1979] Kenya LR 241, CA.
6. R v Rudd (1948) 32 Cr App Rep 138, England CA.
7. Tuwamoi v Uganda [1967] EA 84, EACA.

Appeal

Wilson Kinyua and Ibrahim M’Inanga appealed to the Court of Appeal (Criminal Appeal No 70 of 1980) against their conviction and sentence for murder by Cockar J in the High Court, Meru, on 15th October 1979 in Criminal Case No 11 of 1979. The facts are set out in the judgment of the court delivered by Madan JA.

Advocates

Ole Kaparo for Wilson.

S K Njuguna for Ibrahim.

JE Gicheru State Counsel for the Republic.