Philip Kiptoo Tunoi, Emmanuel Okello O'Kubasu, John walter Onyango Otieno
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.
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.
Okale v Republic  EA 555
1. Penal Code (cap 63) sections 203, 204, 205
2. Evidence Act (cap 80) sections 127(2)(ii), (3), (4)