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.

Held:

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.

Appeal allowed.

Cases

Nguku v Republic [1985] KLR 412; [1982-88] 1 KAR 818

Statutes

1. Penal Code (cap 63) sections 202, 203, 204, 205

2. Evidence Act (cap 80) sections 7(1)(aa), 14, 15, 57

Advocates

Mrs Mwangi for the Respondent.

Raymond Hermes Odhiambo v Republic

Court of Appeal, at Mombasa

July 19, 2002

Chunga CJ, Lakha & Keiwua JJ A

Criminal Appeal No 77 of 2001

(Appeal from the Judgement of the High Court at Mombasa, Waki J and Khaminwa CA, dated 21st November, 2000 in H.C.CR. A No 234 of 1998)

Evidence––identification – circumstances favouring positive and accurate identification – evidence of a single identifying witness – how court should treat such evidence.

Evidence ––confession – extra–judicial statements – statements admitted after trial within a trial – requirement of corroboration of such confessions.

Evidence – recent possession - of stolen property – weight of such evidence– circumstantial evidence of recent possession.

The appellant was tried and convicted of robbery with violence contrary to section 296 (2) of the Penal Code (Cap 63) and sentenced to the mandatory death penalty. The appellant challenged the judgment at appeal on three basic aspects; identification, the confession and evidence of recent possession.

Held:

1. The court should receive evidence on identification with the greatest circumspection particularly where circumstances were difficult and did not favour accurate identification. In this case the identification was safe and accurate.

2. Where evidence rests on a single witness and the circumstances of identification are known to be difficult, then other evidence either direct or circumstantial pointing to the guilt of the accused persons from which, the court may reasonably conclude that identification is accurate and free from the possibility of an error. In this case the courts below subjected the evidence of identification to the requisite critical analysis as enunciated by the courts below.

3. Where a confession is retracted or repudiated, it requires corroboration as a rule of practice. The court may convict even without corroboration if the court is satisfied that the confession cannot but be true, subject to the court warning itself of the dangers of doing so. In this case the courts below did not direct themselves as required by law but found that there was corroboration to the confession in the evidence of the appellant’s recent possession of the robbed vehicle.

4. Evidence of recent possession is circumstantial evidence which depending on the facts of each case may support any charge. The appellant was found in possession of the stolen motor vehicle within hours of the robbery which was positively identified.

 5. The appellant was properly convicted. The evidence of recent possession did not stand alone as there was evidence of identification and the appellant’s confession.

Appeal dismissed.

Cases

1. Maweu, Shadrack Muteti v R Criminal Appeal No 67 of 2000

2. Nyasi, Abdula Chibindo v R Criminal Appeal No 84 of 1997

3 Abdalla bin Wendo & another v R (1953) 20 EACA 166

4. Roria v R [1967] EA 583

 5. Tuwamoi v Uganda [1967] EA 84

 6. R v Bakari s/o Abdulla (1949) 16 EACA 84

7. Obonyo, Andrea & others v R [1962] EA 542

8. Matu, Samwel Gichuru v R Criminal Appeal No 88 of 2000

Statutes

1. Penal Code (cap 63) section 296(2)

2. Criminal Procedure Code (cap 75) section 36(1)

Advocates

Mr Kiarago for the Appellant.

Mr Gumo, Provincial State Counsel, for the Republic.

Mwinyi Juma Kushinda v Republic

Court of Appeal, at Mombasa

January 18, 2002

Kwach, Shah & Bosire JJ A Criminal

Appeal No 86 of 2001

(Appeal from a Judgment and Conviction of the High Court of Kenya at Mombasa (Waki J & Khaminwa CA) dated 21st November 2000 in HCCCrA No 182 of 1998))

Sentencing - death sentence running concurrently with imprisonment sentence -improper sentencing-proper order in such instances.

The appellant was charged, tried and convicted of two counts, namely, robbery with violence contrary to section 296(2) of the Penal Code and indecent assault on a female, contrary to section 144(1) of the same code. He was sentenced to the mandatory death penalty on the first count and 10 years imprisonment with three strokes of the cane in the second count to run consecutively. His first appeal to the High Court was dismissed and he filed this second appeal.

Held:

1. The trial court could not properly order a sentence of imprisonment to run consecutively with a death sentence as such death sentence is not an imprisonment term.

2. The proper order should have been that the imprisonment term stay in abeyance to be executed only if for any lawful reason the death sentence was set aside.

3. There was ample evidence to support the concurrent findings of fact by both the trial court and first appellant court. It therefore could not be said that the two courts erred in principle or that their findings were plainly wrong.

Appeal dismissed

Cases

No cases referred to.

Statutes

1. Penal Code (cap 63) sections 144(1), 296(2)

2. Criminal Procedure Code (cap 75) sections 14(1), (3); 382

Advocates

Mr Bryant for the Appellant.