Modakaa v Republic

Court of Appeal, at Nakuru

September 27, 2000

Chunga CJ, Lakha & Keiwua JJ A

Criminal Appeal No 105 of 1999

(Appeal from convictions and sentence of the High Court of Kenya at Eldoret (Lady Justice Nambuye) dated 25th May, 1998 in HCCRC No 4 of 1996)

Criminal Practice and Procedure – charge – amendment of charge – power of a court to amend a defective charge.

Criminal Practice and Procedure – assessors – trial before assessors – accused charged with more than one count – assessors to state their findings on each count.

Evidence – confession - retracted confession – procedure in admitting such confessions in evidence – evidential value of such confessions.

Criminal Law – insanity – presumption of sanity - all persons presumed to be sane until the contrary is proved.

The appellant was charged in the High Court with three counts of the offence of murder contrary to section 203 as read with section 204 of the Penal Code (Cap. 63). In each count, the appellant was not named in the particulars of the charge although on the heading of the information, his name appeared in full. On May 23, 1996, counsel for the state applied to substitute the charge sheet on the ground that there was an error in the way the old charge sheet was drawn.

Before the appellant’s plea was taken, the trial judge made an order, upon application by defence lawyer, for medical examination of the appellant to ascertain his mental status. A psychiatrist’s report that was eventually produced in Court on August 7, 1996, indicated that the appellant had no mental illness.

A trial was conducted at the conclusino of which the three assessors expressed themselves in general terms that the appellant was guilty of murder. The trial court did not ask them to specify whether they considered him guilty of murder on each of the three counts or only on two or one of them. The appellant was convicted on the 1st and 3rd counts and acquitted on the 2nd count.

The most important evidence in the prosecution’s case was the extra judicial statement under charge and caution made by the appellant. The statement amounted to a confession by the appellant of the killing of the three persons mentioned in the facts of the charges. After an objection was raised against the admission of the statement, a trial within a trial was conducted in the absence of assessors. Ultimately, the trial court found that the statement had been made voluntarily and admitted it in evidence.

In this appeal, the appellant challenged the admission of and reliance by the trial court on the extra-judicial statement as well as on other extraneous matters and the court’s alleged failure to make an inquiry as to the appellant’s mental status.

Held:

1. The amendment of a charge will take place upon an order of the Court only where there is a defect in the charge.

2. Where there is a trial on murder charges on more than one count and the trial proceeds with the assessors as required by law, the assessors should be asked to express their opinions on each count for the sake of clarity and for the avoidance of doubt.

3. A retracted or repudiated confession requires corroboration as a rule of practice. However, where there is no corroboration, the Court may still convict if the Court is satisfied that the confession is too detailed to be untrue, subject to the Court warning itself and the assessors of the danger of doing so.

4. In all criminal trials, the burden of proof is on the prosecution to show that an extra-judicial statement taken from a suspect was made voluntarily. If there is injury or sign of ill treatment on a suspect while in police custody, the burden is on the prosecution to explain the injury or the signs of ill treatment.

5. An investigating officer or any officer who has participated in the investigations should not record an extra-judicial statement from a suspect. The reason for this is that such an officer will have acquired some information about the case which may, willingly or otherwise, find itself in the suspect’s extra judicial statement.

6. In considering an extra-judicial retracted confession, the Court must accept the confession with caution and must be satisfied that it is true. If it is not true, that marks the end of the statement and no reliance can be placed on it. On the other hand if the statement is true then the Court must go further to consider whether it required corroboration or otherwise.

7. Corroboration must be independent evidence which tends to implicate the accused with the offence in material particulars.

7. A confessionary statement which is long and detailed will readily lend assurance as to its truthfulness. On the other hand a short and unimpressive statement will normally throw doubt about its truthfulness.

8. Everybody is presumed to be of sound mind and to have been of sound mind at any time which comes into question until the contrary is proved.

9. It is an established practice that where the trial judge disagrees with the assessor’s findings or opinions, the judge should assign reasons for doing so.

Appeal dismissed.

Cases

Tuwamoni v Uganda [1967] EA 84

Statutes

1. Penal Code (cap 63) sections 11, 203, 204

2. Criminal Procedure Code (cap 75) sections 162(1); 211; 275(2); 306(2)

Advocates

Mr Kiburi for the Appellant

Mr Onderi for the Republic/Respondent

Criminal law - robbery with violence - appeal against conviction - second appeal - appellant having first been convicted for simple robbery - first appeal to the High Court - High Court finding that the evidence established the offence of robbery with violence and convicting the appellant - appellant having been warned of the consequences of the conviction being enhanced on appeal - second appeal - whether the evidence of identification of the appellant could be faulted - whether there was merit in the second appeal - Penal Code section 296(2)