Ekai v Republic
Court of Appeal at Nairobi November 17, 1981
Law, Potter JJA & Simpson Ag JA
Criminal Appeal No 115 of 1981
Murder - murder weapon - whether failure by the prosecution to prove that the murder weapon had been in the possession or was the property of the appellant is fatal to a conviction of murder - sentence for - accused shown following medical evidence to be aged between seventeen and twenty years – no exclusion of possibility that he may have been under eighteen years on the day of the offence - appropriate sentence would be conviction and detention during the pleasure of the President.
Evidence - retracted confession - whether allegations of torture and illtreatment not supported by medical evidence ought to be admissible - whether a trial court can rely on the accused voluntary statement containing demonstrably untrue elements - Judges Rules - whether breach occasioned by lack of the accused’s signature on the certificate of voluntariness at the end of the statement renders such statement inadmissible - circumstancial evidence - accused found in possession of stolen property - presumption that the accused was at the crime scene on the day of the murder - Evidence Act - call for reform in the manner of receiving and recording of confessions from accused persons.
The appellant had been tried and convicted of murder by the High Court for the murder of Mrs Joy Adamson, a famous Wildlife Conservationist, who lived inside the Shaba Game Reserve near Isiolo. Evidence was adduced indicating that on the day of the murder, Mrs Adamson, like on several occasions, had taken an evening walk but failed to return prompting a search by her assistant Mawson that led to a discovery of her body in a pool of blood with several cuts on it about 200 metres from the camp. A post mortem examination performed two days later showed that the deceased had several cut wounds inflicted by a sharp bladed weapon penetrating to a depth of 20 cm.
Investigations relating to the evening of the murder showed that the two gates to the animal enclosure at the back of the camp were found to be open even though they had been bolted by the deceased. Further, a trunk in the deceased’s tent had been forced open with an iron crowbar and papers scattered all over. Investigations revealed that nothing was missing following this robbery. About a month earlier, a similar robbery at the camp occured during which property belonging to the deceased and Mawson was stolen.
The accused was detained by police officers at Baragoi Post some 300 kilometres from Shaba Camp on February 2 when he went to report that he had been attacked by bandits. He was the only person amongst the deceased’s recent employees who had not been interviewed concerning the murder of Mrs Adamson. Apparently he had left her service sometime in December following a dispute over pay. At Isiolo he was interviewed by a Senior Police Officer and he denied any knowledge of the murder. On February 4 he made an ‘inquiry’ statement under caution and confessed having caused the murder of Mrs Adamson. On the same day he accompanied police officers to the scene of the murder where he showed them the swamp where he had thrown the murder weapon as well as where he had hidden the battery belonging to Mawson’s Toyota. Though the knife was not found after extensive search in the swamp, the battery was recovered and fully identified as belonging to the said Toyota.
The accused was charged with the murder of Mrs Adamson on February 5 and he again made another full confession detailing how he prosecuted the murder. He signed his confession and the caution but omitted to sign the certificate at the end of the statement. Later, he led Police Officers to a house belonging to his sister in Kampi ya Garba where he produced a haversack property stolen from the deceased and Mawson during the early robbery at the camp.
The accused was later taken for medical examination by a Dr Mwaniki who found no injuries except scars described as tribal marks. Dr Ngatia who examined the accused on a later date differed with Dr Mwaniki and attributed the scars to beatings inflicted on the accused. During both occasions Superintendent Giltrap was present.
At the trial the accused sought to retract his confession and alleged that he had been tortured and forced to sign the statement. In a trial within a trial the judge admitted the confession and held them substantially true having been corroborated in many respects. He rejected the appellants defence and held that his alibi was a fabrication. He convicted the accused and under statutory age, detained him during President’s pleasure.
The accused now appeals against the conviction.
1. That even though the murder weapon had not been produced, the conviction stood on the basis of the post-mortem examination which established beyond all reasonable doubt that the fatal injury had been caused by a sharp bladed weapon and not by a wild animal as submitted by the appellant.
2. That allegations of illtreatment and torture, though of grave concern to the court, had not been shown to be true and the court having had the benefit of assessing medical evidence before it was entitled to dismiss the appellant’s claims.
3. That on appeal touching on admissibility of an appellant’s confession respect must be had to the trial judge’s findings of fact and reasoning being the person best able to appreciate the circumstances under which the confession was made.
4. That where a statement contains a material element that would make the confession demonstrably untrue and one which must have been in the knowledge of the person making the confession, then the value of the confession as a whole is destroyed but where, as in the present case, a substantially truthful confession contains mistakes, it is proper for a trial judge to rely on it as being of evidential value.
5. The Judge’s Rules being rules of procedure do not prescribe a mandatory requirement that the certificate of voluntariness at the end of the statement be signed by the maker as a condition of admissibility and are by large the discretion of the trial judge to admit such statement having established that it was made voluntarily.
6. That possession of recently stolen items from the deceased by the appellant and the similarity of the manner in which both breakins were executed creates a strong irresistible inference that the appellant was at the murder scene on the day of the crime and completely negates his alibi.
1. Anyangu v Republic  EA 239
2. Aneriko v Uganda  EA 193
3. Republic v Rennie  1 All ER 385
Evidence Act (Cap 80)
G Imanyara & Mr Kiome for Appellant
JE Gicheru for Respondent