Riaga Samuel Cornelius Omolo, Philip Kiptoo Tunoi, Aaron G Ringera
Peter Mugendi Mugambi & Charles Mathengi Mwangi
Peter Mugendi Mugambi & another v Republic  eKLR
Mwangi & another v Republic
Court of Appeal, at Nyeri May 7, 2004
Omolo, Tunoi JJ A & Ringera Ag JA
Criminal Appeal No 72 of 1997
(Appeal from convictions and sentences of the High Court of Kenya at Nyeri (Mr Justice Osiemo) dated 23rd September, 1997 in High Court Criminal Case No 21 of 1996)
Evidence – confession - retracted and repudiated confessions – evidential value of a retracted or repudiated statement of a co-accused.
Evidence – circumstantial evidence – evidential value of circumstantial evidence – principle applicable when relying on circumstantial evidence – proper way to direct assessors in a case depending on circumstantial evidence.
Sentencing – death sentence – whether imposition of death penalty on a minor is proper.
Criminal Practice and Procedure - abatement of appeal – abatement upon the death of the appellant - Court of Appeal Rules rule 68(1)(a).
The two appellants had been convicted by the High Court (Osiemo J) on four counts of murder contrary to sections 203 and 204 of the Penal Code (cap 63) and sentenced to death. The 1st appellant was aged below 18 years at the time when he was said to have committed the offence. He died in prison before his appeal could be heard. The prosecution’s case against the 2nd appellant was based entirely on circumstantial evidence. The deceased appellant had implicated the 2nd appellant in certain statements which had been repudiated and retracted at trial and were only admitted after trials within the trial.
1. A retracted and repudiated confession of a co-accused is the weakest kind of evidence against a third party and such evidence can only lend support to other independent available evidence.
2. In a case depending on circumstantial evidence, each link in the chain must be closely and separately examined to determine its strength before the whole chain can be put together and a conclusion drawn that the chain of evidence as proved is incapable of explanation on any other reasonable hypotheses except the hypothesis that the accessed is guilty of the charge.
3. It is the duty of the judge to the assessors to specify which circumstances he was relying on and what inferences he was drawing from those circumstances. The judge has a duty to set out each individual circumstance and analyse it.
4. It is unfair to the assessors to be given general principles applicable to circumstantial evidence without explaining to them the individual circumstance and asking them what inference they thought could be drawn from the circumstance.
5. The first appellant died before the appeal could be heard, therefore the appeal abated under rule 68(1) (a) of the Court of Appeal Rules.
6. The sentence of death cannot be pronounced or recorded against any person convicted of any offence if at the time the offence was committed the person was under eighteen years. The sentence imposed upon the first appellant was therefore contrary to law.
1. Okeno v Republic  EA 32
2. Rex v Kipkering Arap Koske & another (1949) 16 EACA 135
1. Penal Code (cap 63) sections 25(2), 203, 204
2. Court of Appeal Rules (cap 9 Sub Leg) rule 68(1) (a)
3. Evidence Act (cap 80) section 32(1)