Riaga Samuel Cornelius Omolo, Amrittal Bhagwanji Shah, Samuel Elikana Ondari Bosire
Wilson Wanjala Mkendeshwo v Republic  eKLR
Wilson Wanjala Mkendeshwo v Republic
Court of Appeal, at Nakuru
October 18, 2002
Omolo, Shah & Bosire JJ A
Criminal Appeal No 97 of 2002
(Appeal from conviction and sentence of the High Court at Kitale, Nambuye J, dated 26th February, 2002 in High Court Criminal Case No 17 of 1998)
Evidence – circumstantial evidence–– when a conviction can be based wholly on circumstantial evidence- accused the last person seen with the deceased, his wife – deceased’s dead body discovered a day later with cut wounds – evidence that accused had purchased a panga before asking deceased to accompany him–– accused not making immediate enquiries about the deceased’s disappearance – whether evidence sufficient to prove charge of murder against accused
. Evidence – burden of proof–– party on whom burden falls in criminal cases – circumstances in which burden may be placed on accused – when accused required to explain matters peculiarly within his personal knowledge – standard of proof which the accused has to meet–– presumptions that the court can raise if accused fails to discharge the burden – Evidence Act (cap 80) sections 111, 119.
The appellant was charged and tried with the murder of his wife. He was found guilty, convicted and sentenced to the mandatory penalty of death. The prosecution’s case was that on the day prior to the discovery of the deceased’s dead body at a farm, the appellant had purchased a panga at a shop before going to the deceased’s place of business and asking her to accompany him. That the two had gone to an unknown destination where the appellant cut the deceased several times and she died of haemorrhage from her injuries.
The appellant denied the offence and also denied having taken the deceased along with him on the material day. He stated that he had only passed by the deceased’s place of business and talked to her before the proceeding to another place. That he had gone home and the deceased had not returned. Curiously, however, he had not taken any steps to find out where the deceased was and about seven days after her disappearance, he had sent word to her parent’s home that she was missing.
He further stated that he later made a report to the police about her disappearance. The appellant was later arrested and charged. While in custody, he had made a charge and caution statement admitting to killing his wife. He however denied having made the statement but it was admitted in evidence after a trial within a trial. The trial judge found that the evidence against the appellant was wholly circumstantial but that it had been sufficient to prove the offence of murder. The appellant appealed.
1. In order to justify a conviction based wholly in circumstantial evidence, the inculpatory facts must not only be incompatible with the innocence of the accused, and be incapable of explanation upon any other reasonable hypothesis than that of his guilt, but also that the said facts must exclude co-existing circumstances which may tend to weaken or destroy the inference of guilt.
2. Although the appellant was not seen killing the deceased and he denied having done it, there was acceptable evidence that he had left with the deceased from her place of business and the deceased was not seen alive thereafter.
3. In criminal cases, the burden is always on the prosecution to establish the guilt of the accused beyond any reasonable doubt and generally, the accused assumes no legal burden of establishing his innocence. However, in certain limited cases the law places a burden on the accused to explain matters which are peculiarly within his own personal knowledge.
4. The Evidence Act (cap 80) section 111 provides that in criminal cases, an accused person is legally duty bound to explain, of course on a balance of probabilities, matters or facts which are peculiarly within his knowledge. The section is silent on what would happen if he fails to do so but section 119 entitles a court to raise a rebuttable presumption of fact from the circumstances of the case.
5. In the circumstances of this case, a rebuttable presumption of fact arose to the effect that the appellant knew how the deceased had died.
6. The appellant’s conduct from the date the deceased disappeared until he was arrested provided reason why his denial of having left with the deceased from her place of business could not be believed. He never made any effort to look for the deceased for several days.
7. It was never suggested that the deceased sometimes in the past failed to return home for several days. That the appellant was not disturbed by her disappearance for such a long time raised a rebuttable presumption that he knew where she was.
8. The appellant bought a panga some time before his wife disappeared; she was found dead early the next day with several cut wounds; the interval between the time she was last seen alive and the time her dead body was discovered was quite short; the appellant having not explained where he parted company with her, a rebuttable presumption arose that he, or some other person he knew, was responsible for her death.
9. By dint of section 9 of the Penal Code (cap 63), motive is not one of the elements of a criminal offence and the prosecution’s failure to prove the appellant’s motive did not per se invalidate his conviction.
10. The appellant’s charge and caution statement had been improperly admitted into evidence. However, since the trial judge had observed that even without it the evidence was sufficient to support the conviction, no prejudice was caused against the appellant.
11. The appellant’s conviction was based on sound and sufficient evidence.
1. R v Kipkering arap Koske & another (1949) 16 EACA 135
2. Musoke v R  EA 715
1. Penal Code (cap 63) sections 203, 204
2. Evidence Act (cap 80) sections 111, 119
Mr Matiri for the Appellant.