Geoffrey Muthoka Munyao v Republic

Court of Appeal, at Nairobi

August 2, 2002

Omolo, Tunoi & O’Kubasu JJ A

Criminal Appeal No 94 of 1991

(Appeal from a conviction and sentence of the High Court of Kenya at Nairobi (Mr Justice Mango) dated 12th August 1991 in HCCrC No 4 of 1990)

Criminal Practice and Procedure – confessions – retraction of confession - how court should treat a retracted confession – corroboration not necessary at law.

Evidence – circumstantial evidence - need to exercise caution when founding conviction on such evidence – burden of proof on prosecution .

The appellant was convicted of murder contrary to section 204 of the Penal Code and was thereafter given the mandatory death sentence. The prosecution’s case was that a few days before the death of the deceased the appellant and his friend had visited the home of the deceased. A few days later, the appellant, the deceased and his friend went to buy liquor together in a nearby estate. The following morning the deceased’s body was found with stab wounds and the appellant and his friend were nowhere to be seen. On arrest, the appellant recorded a confession detailing how he and his friend had beaten the deceased to death. When the case came for trial, the appellant denied having confessed to the commission of the crime.

Held:

1. A trial court should accept any confession which has been retracted or repudiated with caution and must before founding a conviction on such a confession be fully satisfied in all the circumstances of the case that the confession is true.

2. A court will only act on the confession if corroborated in some material particular by independent evidence accepted by the Court.

3. Corroboration is not necessary in law and the Court may act on a confession if it is fully satisfied after considering all the material points and surrounding circumstances that the confession cannot be true.

 4. It is necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.

5. To justify an inference of guilt the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt.

6. The burden of proving facts which justify such an inference is on the prosecution and always remains with the prosecution.

Appeal dismissed.

Cases

1.Tuwamoi v Uganda [1967] EA 84

2. Ngugi, Moses Mwangi v Republic Criminal Appeal No 51 of 1997

3. Rex v Kipkering Arap Koske & another (1949) 16 EACA 135

Texts

Murphy, P et al (Ed) (1995) Blackstone’s Criminal Practice London: Blackstone Press Limited 5th Edn F 1p 1777

 Statutes

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

Advocates

Mr Kiage for the Appellant.