Kihara V Republic EKLR
|Criminal Appeal 54 of 1985||01 Oct 1986|
James Onyiego Nyarangi, Harold Grant Platt
Court of Appeal at Nakuru
Kihara v Republic
Kihara v Republic eKLR
Kihara v Republic
Court of Appeal, at Nakuru October, 1986
Nyarangi, Platt & Gachuhi JJA
Criminal Appeal No 54 of 1985
(Appeal from the High Court at Nakuru, Masime J)
Evidence – dying declaration – how court must caution itself in convicting upon a dying declaration - whether corroboration of the dying declaration a necessity.
Assessors – opinion of – whether opinion binding on trial judge – need for judge to give reasons for disagreeing with assessors’ unanimous opinion.
Evidence - witnesses - number of witnesses - necessity of many witnesses - principle that it is the soundness of evidence and not the number of witnesses.
The appellant was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code (cap 63). The facts of the case were that moments after the deceased and the appellant had fallen into an argument, one of the prosecution witnesses found the deceased lying on the ground and telling the appellant not to beat him anymore. Two other witnesses, one of whom included the deceased’s wife, testified that before his death the following morning, the deceased had told them of his being beaten by the appellant and of having been kicked in the stomach. A post-mortem report stated the cause of the deceased’s death to be internal haemorrhage due to raptured spleen caused by blunt force on the abdomen.
After trial, the appellant was convicted of the lesser offence of manslaughter and sentenced to imprisonment for eight years. On appeal, he argued that the prosecution had failed to call some witnesses, that the trial court had relied on a dying declaration to convict him and that the trial judge, by convicting him of manslaughter, had overruled the assessors’ unanimous opinion that he was not guilty of murder.
1. Even though there is no rule that a dying declaration must be corroborated, a court needs to caution itself that in order to obtain a conviction upon a dying declaration, it must be satisfactorily corroborated and particular caution must be exercised as to when the attack took place, the identification of the assailant and the weapon used.
2. Before a dying declaration is relied upon, it has to be shown that death is imminent and directly related to the incident.
3. Under section 322(2) of the Criminal Procedure Code (cap 75), a judge is not bound by the opinion of assessors but if he disagrees with their unanimous opinion, he should explain sufficiently the reasons for his disagreeing.
4. The prosecution had failed to prove the offence beyond reasonable doubt and it would therefore be unsafe to uphold the conviction.
5. The prosecution is not compelled to call as many witnesses as there could be as what matters is not the number of witnesses but the best sound evidence that can be given in court. It would have been pointless to call witnesses who did not know what had happened between the appellant and the deceased.
1. R v Said s/o Abdulla, alias Saidi s/o Mangombe (1945) 12 EACA 67
2. R v Mgundulwa s/o Jalu & others (1946) 13 EACA 169
3. R v Ramazani bin Mirandu (1934) 1 EACA 107
4. R v Eligu s/o Odel & Epongu s/o Ewunyu (1943) 10 EACA 90
1. Roome, H.D. Ross, R.E. (Eds) (1927) Archbold: Pleading, Evidence and Practice in Criminal Cases London: Sweet & Maxwell 27th Edn 2914
2. Sarkar, S.C (1959) Law of Evidence Calcutta:Sarkar & Sons 10th Edn
1. Penal Code (cap 63) sections 203,204
2. Criminal Procedure Code (cap 75) section 322(2)