Zakayo Richard Chesoni, James Onyiego Nyarangi, Alan Robin Winston Hancox
George Karanja Mwangi,Francis Karanja Kamau & Marcellinus Muchoki Kamau v Republic
George Karanja Mwangi & 2 others v Republic  eKLR
Mwangi v Republic
Court of Appeal, at Nairobi July 13, 1983
Hancox JA, Chesoni & Nyarangi Ag JJA
Criminal Appeal No 132 of 1983
Assessors - opinion of assessors - how the opinion is stated to Court - representative opinion given by one assessor - whether opinion properly given - whether error in giving opinion a curable defect – Criminal Procedure Code (cap 75) section 322(1), 382.
Assessors - presence of - exclusion of assessors from trial-trials in which assessors are required - circumstances under which assessors are excluded from part of trial - nature of issues required to be heard in absence of assessors - whether improper exclusion of assessors a curable defect - Criminal Procedure Code (cap 75) section 262.
Assessors - evidence to assessors - nature of issues required to be heard in absence of assessors - whether prosecution may rely on evidence given in absence of assessors to establish essential fact.
Criminal Practice and Procedure - retrial - order for - matters that the court needs to consider in ordering retrial.
Evidence - circumstantial evidence - case depending exclusively on circumstantial evidence - how court should proceed before convicting on such evidence - evidence against one accused - whether such evidence is strong evidence - whether such evidence is admissible - Evidence Act (cap 80) section 32(1).
Evidence - statements to police - inquiry statements - charge and caution statements - manner of recording statements - accused giving statement in Swahili and English - statement directly recorded in English – whether statement properly recorded - repudiated statements - onus of proof where statement repudiated - matters with which court has to be satisfied before accepting repudiated statement.
The three appellants were convicted by the High Court of murder and sentenced to death. The evidence against the first appellant was circumstantial, in that he, being a nephew of the deceased who lived with the deceased’s family, had either sold or given some property of the deceased’s son, who had also been killed, and lied about the whereabouts of the deceased and her son a few days after the deceased and all her three children were murdered and secretly buried in their garden. The first appellant was, in addition, adversely mentioned in the second appellant’s inquiry statement.
All the appellants had objected to the admissibility of their alleged statements under inquiry and under charge and caution. One of the inquiry statements of the second appellant had been recorded directly in English although he had spoken in both Swahili and English. The third appellant, on the other hand, had alleged that he had been beaten by the police officers into signing a statement not made by him and that during his beating he had been slapped hard on his left ear. His examination by a doctor a few days after the day of the alleged beating showed that he had a freshly perforated eardrum. This evidence was heard in the main trial and not within the trial within a trial conducted by the court in which it ruled that all the appellants’ statements were properly made and admissible in evidence.
During the evidence of one of the prosecution witnesses, a police inspector who had recorded the inquiry statement of the first appellant, defence counsel had told the court that points of law were likely to arise, at which point the assessors left the court upon the order of the judge. The witness, however, testified to matters of fact in the absence of the assessors and before the trial within a trial at which defence counsel would later object to the admissibility of the statement. At the conclusion of the case, the trial judge, in summing up, asked each assessor to give their individual opinions. When the assessors returned after considering the case, however, the second assessor told the court that assessor number 3 would give their verdict. The judge proceeded to record that which assessor number 3 had said on behalf of all three, which was then agreed to by the other two assessors. Each of the appellants appealed against conviction and sentence.
1. An offence of murder can be established by evidence tendered directly proving it or by evidence of facts from which a reasonable person can draw the inference that murder had been committed.
2. In a case depending exclusively on circumstantial evidence, the court must, before deciding upon a conviction, find that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of guilt. It is also necessary before drawing the inference of the accused’s guilt from the circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference. The facts surrounding the first appellant’s possession of the property of one of the deceased persons and his posing as the deceased were incompatible with the appellant’s innocence and inconsistent with any other rational conclusion.
3. Where an accused person has been adversely mentioned in the inquiry statement of another accused person, this is evidence of a weak kind which may be taken into account under section 32(1) of the Evidence Act (cap 80).
4. The proper procedure with regard to inquiry statements is to record the statement in the language(s) used by the accused and then to translate it into English. Both versions of the statement must be produced in evidence and where an accused person makes more than one statement to the police, all his statements must be produced.
5. Where a statement has been repudiated by an accused person as not being voluntarily made, the onus is on the prosecution to prove that the confession was voluntary. The injury to the third appellant’s ear was a matter which could have lent credence to the allegation that the appellant had been beaten in order to sign a statement not made by him and in the circumstances might have led to a finding that the prosecution had not discharged its onus of proof had it been given in the trial within a trial and properly considered.
6. Where the statement of an accused person is challenged, there is need for either its corroboration or a warning followed by a direction of finding that it was safe to act upon it without corroboration.
7. Section 262 of the Criminal Procedure Code (cap 75) requires all trials before the High Court to be with the aid of assessors. This means that they must be present throughout the trial, save only when the admissibility of evidence intended to be adduced is challenged or a point of law otherwise arises. The part of the trial relating to evidence of the witnesses dealing with a most important aspect of the case against the first appellant, namely how he had come to be in possession of the property said to belong to one of the deceased, was without the aid of assessors and therefore contravened section 262.
8. It is necessary that all the evidence on which the prosecution case is based should be given in the assessors’ presence. The prosecution cannot rely on the evidence given in a trial within a trial in the absence of the assessors to establish any of the essential facts of their case.
9. The part of the trial which was held in the absence of the assessors constituted a fatal irregularity in the conduct of the trial which offended section 262 of the Criminal Procedure Code and the appellants did not get a satisfactory trial. An order for a retrial is the proper order to make when an accused person has not had a satisfactory trial.
10. A retrial should not be ordered unless the appellate court is of the opinion that on a proper consideration of the admissible or potentially admissible evidence, a conviction might result.
11. The High Court ought, in a trial with the aid of assessors, not to accept a representative opinion by one of the assessors, even if such opinion is agreed upon by the other two assessors by way of mere confirmation - section 322(1) of the Criminal Procedure Code. When two of the assessors told the trial judge that they had selected the third assessor to speak on their behalf, the judge should have asked them to state their own opinions orally and, if necessary, allowed them to retire again to enable them to form an individual verdict. However, since all the assessors had spoken to the Court, there was no miscarriage of justice occasioned and the irregularity was curable by section 382 of the Criminal Procedure Code.
1. Peter Kubuita Paul v Republic Cr Appeal No 71 of 1979 (unreported)
2. Simoni Musoke v R  EA 715
3. Teper v R (2)  AC 480 at p 489
4. Raphael Oduor Ngoya & 5 Others v Republic Cr Appeal No 136 of 1981 (unreported)
5. M’riungu v Republic  KLR 455
6. Anyuma s/o Omolo v R (1953) 20 EACA 218
7. R v Mitlande (1940) 7 EACA 46
8. Edong s/o Etat v R (1954) 21 EACA 338
9. Bitton Gichine Mugo v Republic Criminal Appeal No 13 of 1983 (unreported)
10. Francis Juma s/o Musungu  EA 192
11. Ndagizimana and Another v Uganda  EA 35 at p 38
12. R v Vashanjee Liladhar (1946) 13 EACA 150
13. Braganza v R  EA 152 (CA) 469
14. Pyarala Bassan v Republic  EA 854
Taylor, J.P. (1931) A Treatise on the Law of Evidence, London: Sweet & Maxwell, 12th Edn pp 66, 67
1. Evidence Act (cap 80) section 32(1)
2. Criminal Procedure Code (cap 75) sections 262, 322(1), 382
Mr Mahan for Appellants
Mr Mbai for Respondent