Criminal Practice and Procedure – conduct of prosecution - prosecution by unqualified persons – prosecution conducted by police officer of the rank of Police Constable - prosecution later conducted by Police Inspector - whether proceedings proper. Criminal Practice and Procedure – retrial – circumstances in which a retrial can be ordered - prosecution nullified for being conducted by an unauthorised person - no evidence that it would be difficult to trace witnesses - whether proper to order retrial.

David Agwata Achira v Republic

Court of Appeal, at Kisumu November 28, 2003

Omolo, Githinji JJ A & Onyango-Otieno Ag JA

Criminal Appeal No 47 of 2003

(Appeal from a conviction and sentence of the High Court at Kisii (Wambilyanga J) dated 7th March 2003 in HCCRC No 1 of 2000)

Evidence – circumstantial evidence – test that circumstantial evidence must satisfy before a conviction can be founded on it – need for accomplice evidence to be corroborated – dying declarations – deceased’s dying declaration not corroborated.

Evidence - dying declaration - how a court should treat evidence of a dying declaration - whether safe to base a conviction on a dying declaration - need for corroboration - whether uncorroborated accomplice evidence proper corroboration for a dying declaration.

The appellant was charged and convicted by the High Court of murder.

At the trial, the judge considered the evidence before him as reliable circumstantial evidence against the appellant. The judge also relied on the evidence of a dying declaration and found corroboration for it in the evidence of three witnesses.

On appeal the appellant argued that the trial judge had failed to direct himself and the assessors that some of the evidence was accomplice evidence and required corroboration. It was also argued that the judge had erred in relying on the same accomplice evidence as corroboration of the deceased’s dying declaration.

Held:

1. There were inconsistencies in the circumstantial evidence of two witnesses.

2. The accomplice evidence of two witnesses was uncorroborated and could therefore not be relied on.

3. The Court should approach the evidence of a dying declaration with necessary circumspection.

4. It is generally speaking unsafe to base a conviction solely on the dying declaration of a deceased person made in the absence of an accused and not subject to cross examination unless there is satisfactory corroboration.

5. The trial judge erred in finding that the uncorroborated accomplice evidence could corroborate the deceased’s dying declaration.

Appeal allowed, conviction quashed.

Cases

1. Okeno v Republic [1972] EA 32

2. Ngui v Republic [1984] KLR 729

3. Musoke v Republic [1958] EA 715

4. James Mwangi v Republic [1983] KLR 327

5. Aluta v Republic [1985] KLR 543

6. Okale v Republic [1965] EA 555

7. Pius Jasunga s/o Akumu v Reginam (1954) 21 EACA 331

Statutes

Penal Code (cap 63) sections 203, 204

Advocates

Mr LG Menezes for the Appellant.

Mr Musau for the Respondent.

Peter Obino Nyaundi v Republic

Court of Appeal, at Kisumu November 28, 2003

Omolo, Githinji JJ A & Otieno-Onyango Ag JA

Criminal Appeal No 194 of 2002

(Appeal from a conviction and sentence of the High Court

at Kisii, Wambilyangah J dated 5th November 2002, in

High Court Criminal case No 38 of 2000)

Evidence – circumstantial evidence - standard that such evidence must meet - inculpatory facts to be incompatible with innocence of the accused – where evidence adduced does not directly connect accused to the offence.

Evidence – witness – where witness evidence forming basis of conviction is contradictory and insufficient to form basis of conviction.

The accused was convicted of murder on the strength of the evidence of one Mary, the main witness. The appeal judges re-examined her evidence and found significant contradictions in its substance. The court also found that the witness was inadequately cross-examined to establish the reasons for her perception of the “afraid” demeanour of the accused on the night of the murder.

Held:

1. This court was not satisfied that the evidence of the only witness which the judge relied on to convict the appellant left no doubt in the entire case as to lead to a conclusion that the inculpatory facts were incompatible with the innocence of the appellant and incapable of explanation upon any other hypothesis other than that of guilt.

2. There was no proper evidence to conclude that the accused was carrying a panga with which he had killed the deceased.

Appeal allowed, conviction quashed, sentence set aside.

Cases

Musoke v R [1958] EA 715

Statutes

Penal Code (cap 63) sections 203, 204

Advocates

Mr Kabua for the Appellant.

Thomas Ogamba Nyakundi & another v Republic

Court of Appeal, at Kisumu November 28, 2003

Tunoi, O’Kubasu JJ A & Onyango Otieno, Ag JA

Criminal Appeal No 217 of 2003

(Appeal from a judgment of the High Court at Kisii (Wambilyangah J)

dated 25th day of September 2002)

Criminal Practice and Procedure – conduct of prosecution – prosecution by unqualified persons – prosecution conducted by police officer of the rank of Police Constable - prosecution later conducted by Police Inspector - whether proceedings proper.

Criminal Practice and Procedure – retrial – circumstances in which a retrial can be ordered - prosecution nullified for being conducted by an unauthorised person - no evidence that it would be difficult to trace witnesses - whether proper to order retrial.

The appellants were tried, convicted and sentenced to death on charges of robbery with violence. The prosecution had been conducted by a police officer of the rank of police constable contrary to section 85(2) of the Criminal Procedure Code. After a break the prosecution was conducted by an officer of the rank of Inspector.

Held:

1. Police Constable Nakori was clearly not entitled to act as a Public Prosecutor. It must follow therefore, that portion of the prosecution must be rendered a nullity, however, the part of the trial conducted by Inspector Okoth was valid. As there was only one trial and if any part of it was materially defective, the whole trial must be invalidated.

2. Taking into account the circumstances of the case, the ends of justice would be served if we ordered a retrial as the court has not been told that it would be difficult to trace the prosecution witnesses neither was a retrial strenuously opposed.

Conviction quashed, sentence set aside, retrial ordered.

Cases

Elirema & another v Republic [2003] KLR 537

Statutes

Criminal Procedure Code (cap 75) section 85(2)

Advocates

Mr Onsongo for the Appellants

Vyatu Limited & another v Public Trustee,

Nyanza Province

Court of Appeal, at Kisumu November 28, 2003

Githinji JA

Civil Application No NAI 218 of 2003 (KSM 30/2003)

(An application for extension of time to substitute a Legal Representative

of the deceased in an appeal from Judgment and Decree of the High Court

of Kenya at Kisumu, Wambilyanga J, dated 4th July, 2000 in

HCCA No 80 of 2000)

Civil Practice and Procedure - abatement - abatement of appeal – appeal filed - respondent dies before appeal heard - no application made within 12 months to make the legal representative a party - application made to revive the abated appeal - Rule 96 of the Court of Appeal Rules.

Civil Practice and Procedure - extension of time- abatement of appeal - application made to extend time for Application to make the legal representative a party - extension tantamount to amending Rule 96(2) of the Court of Appeal Rules.

Legal Representative - public trustee appointed interim administrator - no letters of administration or limited grant given to public trustee - whether public trustee as interim administrator can be enjoined as a legal representative.

The applicants, as defendants in the High Court, filed an appeal against the Judgment of the superior court in which they had been ordered to pay a sum of money as compensation for injuries sustained by the plaintiff.

Before the appeal could be heard, the plaintiff passed away and the respondent herein was appointed the interim administrator of the estate of the deceased with duty to collect the decretal amount and pay the costs to the advocate. No application was made within 12 months to make the interim administrator a party to the appeal.

The applicants then applied to the court seeking extension of time for filing an application to make the interim administrator a party to the appeal.

The interim administrator had not in fact been appointed as the legal representative of the deceased’s estate hence no letters of administration or limited grant were given to the public trustee.

Held:

1. In the case of suits, order XXIII rule 2 of the Civil Procedure Rules gives a plaintiff or his legal representative a right to apply for revival of an abated suit and also power to the court to revive an abated suit on terms as to costs as the Court may think fit.

2. There is no corresponding provision in the Court of Appeal Rules which authorizes any party to an appeal to make an application for revival of an abated appeal or corresponding power given to the Court of Appeal to order the revival of an abated appeal.

3. Extending time for filing an application for making a legal representative of the deceased a party would in effect be tantamount to amending or revising rule 96(2) of the Court of Appeal Rules.

4. The order of the High Court appointing the public trustee as interim administrator did not in fact appoint the public trustee as the legal representative of the deceased as his duties were limited by the order to receiving the decretal sum and paying the costs of the advocate.

Application dismissed with costs.

Cases

No cases referred to.

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rules 1(2), 4, 96, 96(2)

2. Civil Procedure Act (cap 21) sections 3A, 95

3. Civil Procedure Rules (cap 21 Sub Leg) order XXIII rule 2; order XLIX rule 5

4. Law of Succession Act (cap 160) Fifth Schedule para 10

Julius Mwita Range v Republic

Court of Appeal, at Kisumu November 28, 2003

Tunoi, O’Kubasu JJ A & Onyango-Otieno Ag JA

Criminal Appeal No 150 of 2003

(Appeal from a conviction and sentence of the High Court at

Kisii (Wambilyanga J) dated 27th July 2002)

Evidence – witness–– evidence of a wife where husband is charged with criminal offence – whether wife a competent witness – whether wife a compellable witness – wife called as a witness by the prosecution–– defence failing to apply to call her or take over her evidence – wife discharged by the court as not being competent to testify against her husband –– whether court’s decision proper.

Evidence – adducing of evidence – criminal trial – conviction to be based only on the evidence adduced in trial - court not to advance its own theory.

Criminal Law – provocation–– murder – accused stating that he murdered deceased because he found him walking with his wife – whether such a fact can amount to provocation – whether proper to reduce conviction for murder to one for manslaughter.

The appellant was convicted by the High Court for the murder of one Musa Chacha and sentenced to death.

Apart from the appellant’s admission made in a cautionary statement to the police and also to one witness that he killed the deceased because he had found him with his wife, there was no other evidence as to what had happened at the time of the killing. Elizabeth, the appellant’s wife, had been called as the first witness. She stated that she had been married to the appellant but they had separated and she was no longer his wife. At that stage, the trial judge ruled that she was not competent to testify against her husband and discharged her.

In rejecting the accused’s statement that he had killed Chacha because he had found him with his wife, the trial Judge disagreed with the view that he may have been provoked. The Judge remarked that the appellant’s marriage to Elizabeth had broken down so that for all intents and purposes, she was no longer his wife. He found that the appellant had deliberately gone to station himself on the path which would was taken by his victim, Chacha.

The appellant appealed against his conviction on the grounds that the trial judge had erred in refusing to take the evidence of his estranged wife and in failing to give proper consideration to the evidence of provocation.

Held:

1. The law as to the capacity of a spouse as a witness in criminal proceedings is stated in section 127(2)(ii) of the Evidence Act (cap 80). The spouse of a person charged with an offence is a competent witness of the defence save that the spouse shall not be called as a witness except upon the application of the person charged.

2. In subsection (4) of section 127, husband and wife mean the husband and wife of a marriage which is by law binding during the lifetime of both parties unless dissolved according to law, and includes a marriage under native or tribal custom.

3. From the evidence before the High Court, and from that definition of marriage, Elizabeth was married to the appellant and at the time of the Chacha’s death, the appellant was still her lawful husband although they were separated.

4. Though Elizabeth was a competent witness, she could only be called as a witness upon the application of the appellant. It was improper for her to be called by the prosecution as that was to make her a compellable witness.

5. The defence did not apply for her to be called or for her to proceed with her evidence. The trial Judge was therefore right in not allowing Elizabeth to testify for the prosecution.

6. The trial Judge had put too much emphasis on the marriage having broken down at the expense of the effect produced on the appellant when he found his wife walking with the deceased. In law, Elizabeth was still the appellant’s wife and the appellant could still be provoked by that fact.

7. If after admitting the statement of the appellant in evidence the trial court had given it the same treatment as the other evidence, which it was bound to do, it would have come to the conclusion that the appellant had been provoked.

8. In every criminal trial, a conviction can only be based on the weight of the actual evidence adduced and it is dangerous and inadmissible for a trial judge to put forward a theory not canvassed in evidence or in counsel’s speeches.

9. It was not open to the learned judge to find that the appellant had deliberately stationed himself on the path which was to be followed by the deceased as there was no evidence adduced to that effect.

Appeal allowed, conviction for murder quashed, death sentence set aside, conviction for manslaughter substituted, Appellant sentenced to 10 years imprisonment.

Cases

Okale v Republic [1965] EA 555

Statutes

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

2. Evidence Act (cap 80) sections 127(2)(ii), (3), (4)

Evidence – circumstantial evidence - standard that such evidence must meet - inculpatory facts to be incompatible with innocence of the accused – where evidence adduced does not directly connect accused to the offence. Evidence – witness – where witness evidence forming basis of conviction is contradictory and insufficient to form basis of conviction.

Dishon Litwaka Limbambula v Republic

Court of Appeal, at Kisumu November 23, 2003

Tunoi, O’Kubasu JJ A & Onyango Otieno Ag JA

Criminal Appeal No 140 of 2003

(Appeal from a judgment of the High Court at Kakamega,

(Tunoi & Waweru JJ) dated 30 January 2003 in

High Court Criminal Appeal No 33&34 of 2001)

Evidence – identification evidence – identifying evidence of single witness – need to exercise caution in basing a conviction – voice identification - weight of such identification how court should treat evidence of voice identification.

Criminal law - motive - relevance of motive - how motive can be established - whether motive can be inferred from facts - whether proof of motive essential to prove a crime.

The appellant was tried and convicted on a charge of robbery with violence and sentenced to death. The appellant filed an appeal on the grounds that the evidence of identification of the appellant was not sufficient to form the basis of a conviction. Further that the trial judge failed to warn himself on the dangers of relying on the identifying evidence of a single witness.

Held:

1. Evidence of voice identification is receivable and admissible in evidence and it can be depending on the circumstances carry as much weight as visual identification.

2. In receiving such evidence, care would be necessary to ensure that it was the accused person’s voice the witness was familiar with it recognized it and that the conditions obtaining at the time were such that there was no mistake in testifying to that which was said and who said it.

3. It is trite that such a warning is normally essential and imperative in situations when conditions favouring a correct identification are difficult especially in circumstances appertaining to robbery.

4. Motive is an important element in the chain on presumptive proof and where a case rests on purely circumstantial evidence and may be drawn from facts though proof of it is not essential to prove a crime.

5. In this case, the two courts below were entitled to hold that an inference could be raised that the appellant had a motive to attack the complainant.

Cases

Chege v Republic [1985] KLR 1

Statutes

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

2. Criminal Procedure Code (cap 75) section 361

3. Evidence Act (cap 80) section 8

Advocates

Mr Gichoba for the Appellant.

.