Andriano Oyugi V Republic  EKLR
|Criminal Appeal 164 of 2001||26 Jul 2002|
Riaga Samuel Cornelius Omolo, Philip Kiptoo Tunoi, Emmanuel Okello O'Kubasu
Court of Appeal at Mombasa
Andriano Oyugi v Republic
Andriano Oyugi v Republic  eKLR
Andriano Oyugi v Republic
Court of Appeal, at Mombasa
July 26, 2002
Omolo, Tunoi & O’Kubasu JJ A
Criminal Appeal No 164 of 2001
(Appeal from a judgment of the High Court at Mombasa, J Khaminwa CA, dated December 11, 2000 in High Court Criminal Case No 13 of 1999)
Criminal Practice and Procedure – assessors - summing up to assessors – duty of trial court to sum up to assessors – charge of murder – failure of court to include in its summing up the defence of provocation raised by the accused – failure by the court to address the assessors on the issue of the accused’s drunkenness which arose within the trial – whether accused’s conviction proper.
Evidence – bad character evidence – how such evidence should be admitted – Evidence Act (cap 80) section 57 – accused charged with murder of his daughter - court admitting evidence of accused person’s previous conviction and sentence for assault on his wife – court not giving reasons for admitting such evidence – whether evidence properly admitted.
The appellant was charged with the offence of murder contrary to the Penal Code (cap 63) section 203 as read with section 204. The charge related to the death of his daughter, Brenda, who had died of respiratory failure due to the severing of her trachea.
At the trial, the appellant admitted that he had inflicted the fatal injury but he stated that at the time he did so, he had been groping in the darkness in his house looking for his wife who had caused him unbearable provocation and he had lashed out with a panga at his daughter who he believed to be his wife.
The appellant was arrested when he allegedly went to report the incident at a police station and the police officers who received him stated that he appeared to have been drunk.
In convicting the appellant for the offence charged and sentencing him to death, the High Court rejected his story but in her summing up to the assessors, the presiding Commissioner of Assize did not mention either the issue of the appellant’s provocation or drunkenness. The Court also, without stating its reasons, admitted the prosecution’s evidence regarding the appellant’s previous conviction and sentence on a charge of assault against his wife. The appellant appealed.
1. Whether the appellant’s defence of provocation may have been false or not, it was the duty of the trial court to address the assessors on it and to point out to them that if they believed the story of the appellant that he saw his wife come out of a room with another man, that would probably constitute a provocation as currently understood in law.
2. In view of the provisions of the Evidence Act (cap 80) section 57, it was wrong for the prosecution to introduce into its evidence the fact that the appellant had recently been convicted and sentenced for assaulting his wife in the absence of evidence to show that the previous conviction was part of the res gestae or that it constituted facts showing the appellant’s state of mind or that they were facts showing a system under sections 14 and 15 respectively.
3. These were serious enough errors on the part of the trial court to warrant this Court’s interfering with its decision.
4. It is not the province of a trial judge to tell the assessors which version of the case looks more believable. That is a question of fact and once the evidence has been set out and the contradictions or whatever other deficiencies, the trial court must then leave it to the assessors to choose what they believe or do not believe.
5. The appellant admitted killing his daughter and there was evidence that he appeared to be drunk. The Commissioner of Assize should have addressed the assessors on the issue and left it to them to decide whether the drunkenness was there and if it was, whether it was of such a nature as was capable of depriving the appellant of the capacity to form the specific intent necessary to kill.
6. This Court would set aside the appellant’s conviction for murder and substitute it with a conviction for manslaughter. Regarding the sentence, the Court deplored the tendency evolving in the country where parents use their children as pawns in settling matrimonial disputes and to show its disapproval of the appellant’s conduct, it would sentence him to imprisonment for 18 years.
Nguku v Republic  KLR 412; [1982-88] 1 KAR 818
1. Penal Code (cap 63) sections 202, 203, 204, 205
2. Evidence Act (cap 80) sections 7(1)(aa), 14, 15, 57
Mrs Mwangi for the Respondent.