The Kenya Law Reports Newsletters | LEGAL BRIEF | Issue 021 | Monday 15, September 2008

ACCOMPLICE AND CHILD’S EVIDENCE REQUIRES CORROBORATION

By Esther Onchana
September 15th 2008, Nairobi
Shida Kazungu Baya & 4 others v Republic eKLR (www.kenyalaw.org)
Court of Appeal at Mombasa
Omolo, O’Kubasu and Onyango Otieno, JJ.A
18th July 2008

“…………We however do not appreciate that evidence that requires corroboration can be corroborated by evidence which in itself requires corroboration.”

Evidence of an accomplice witness and that of a child should be corroborated. This legal principle was restated by the Court of Appeal while sitting in Mombasa on July 18th this year.   Judges of Appeal Omolo, O’Kubasu and Onyango Otieno allowed an appeal filed by five appellants who were facing the death sentence for the murder of Masha Kalama. 

The crux of the appeal was whether that evidence that requires corroboration can be corroborated by evidence which in itself requires corroboration. In this particular case the court was faced with question on whether the evidence of the deceased’s daughter, a child of tender years, could be corroborated by the evidence by Furaha Katana Kahindi, himself being a suspect in the case, accordingly requiring his evidence to be supported.

At the trial in the High Court, the prosecution the prosecution called seven witnesses.  During trial the main prosecution witnesses gave varying accounts versions of what happened on the day the when Masha Kalama was murdered.

Varying Testimonies
The deceased’s daughter, Zawadi aged below ten years, recounted that she heard the second appellant, Elizabeth Karisa, saying that if she had money she would kill the deceased. On that particular day of the murder, when her father came from Mpeketoni, the second appellant asked him to go to the place where she sold traditional liquor. As her father headed to the liquor place, the second appellant sent word to the first, fourth and fifth appellants that the deceased was on his way.

At a place called Mangweni, where the brew was being sold, Furaha, a neighbour , started beating the deceased while accusing him of practising witchcraft. According to Zawadi soon after the other appellants joined Furaha in severely beating the deceased. By the time Zawadi and her sister Rehema were leaving the crime scene, their father was groaning and was lying motionless under a tree at the second appellant’s house.

In cross examination, Zawadi stated that although there were other people drinking at the scene, they only drunk and cheered the five appellants and Furaha as took turns in beating the deceased.

The third prosecution witness was deceased’s thirteen year old daughter, Rehema. At the onset she the told the court when she returned home from an errand she found her father being beaten by all the five accused persons before the court. However during cross examination she exonerated the third appellant as having participated in the beating. Thereafter she substantially changed her story and testified that she did not witness any of the five accused persons beating her father.

The events as related by Furaha, the fourth prosecution witness, were that while at the drinking den only the first, fourth and fifth appellants took part in assaulting the deceased, thereby absolving the second and third appellants. While denying that he took part in the beating, he told the court that his attempts to stop them from beating the deceased failed and he was in fact injured as a result.

A report on the incident was made to the administration police by Dama, the deceased’s third daughter. Dama testified she heard her father’s voice on her way home from the shamba and upon learning from Rehema of the beating she rushed to the police station on a bicycle. 

Grounds of Appeal
Mr. Kadima, the learned counsel for the first, fourth and fifth appellants, submitted at length that it was not proper for the learned trial Judge to base his conviction on the evidence of Zawadi and Furaha when the evidence of the two was contradictory on the material aspect and could not corroborate each other as each of the two witnesses’ evidence required corroboration. He submitted that evidence that itself requires corroboration cannot be used as corroboration of other evidence.

Mr. Ondari, the learned Assistant Deputy Director of Prosecutions, conceded the appeal arguing, first, that the evidence of Zawadi, Rehema and Furaha was largely contradictory. He pointed out that the learned trial Judge had misdirected himself when he found that the evidence of Zawadi was corroborated by the evidence of Furaha yet Furaha himself was a suspect and his evidence also required corroboration.

The Court of Appeal’s had difficulty in accepting the trial judge’s finding that the evidence of Zawadi was corroborated by the evidence of the doctor and of Furaha whereas the evidence of Furaha was corroborated by the evidence of Zawadi which was already corroborated by that of the doctor. 

Evidence itself requiring corroboration cannot act as corroborating evidence

While noting that the trial judge appreciated evidence of a child of tender years requires corroboration except in sexual offences cases and that the evidence of an accomplice requires corroboration, the Court of Appeal faulted the judge’s finding that that evidence that requires corroboration can be corroborated by evidence which in itself also requires corroboration.

In this case, Zawadi was a child of tender years whose evidence required to be corroborated in material aspects.  Furaha was mentioned by Zawadi as one of the people who assaulted the deceased.  If that evidence was accepted, then Furaha should have been together with the five appellants in the dock.  That in effect made Furaha an accomplice.  Being an accomplice, the court stated, Furaha’s evidence itself required corroboration. Therefore in the court’s considered view, Zawadi’s evidence was not corroborated in material aspects either by the evidence of the doctor or that of Furaha.  That being so, it went without saying that the evidence of Furaha could not be corroborated by the evidence of Zawadi or that of the doctor.
 
The effect of the trial court’s finding was that the conviction in this case proceeded on the uncorroborated evidence of a child of tender years and on the uncorroborated evidence of an accomplice.  This together with the various contradictory accounts by the witnesses negated the findings by the trial court. Consequently the appeal succeeded.

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MAN SENTENCED TO DEATH OVER MURDER
By Monica Achode - Advocate
Nairobi, September, 2008
NYANDO MUKUTA MWAMBANGA vs. REPUBLIC [2008] eKLR (www.kenyalaw.org)
High Court at Mombasa
R. S. C. Omolo, E. M. Githinji, D. K. S. Aganyanya (JJA)
July 25, 2008

The Court of Appeal on the 25th of July this year upheld a death sentence meted out against the appellant on a charge of murder. The appellant had been tried in the superior court and with the aid of assessors, found guilty and sentenced to death. It had been alleged that he had murdered the deceased, Mizingo Munga Gube on 2nd April, 2001.

According to the evidence, the incident occurred during a funeral which the deceased and the appellant both attended. They had come to bury the son of one of their relatives. It was the prosecution’s case that after the burial the appellant started chasing people with a panga saying that he would kill somebody and that as the people were dispersing the appellant cut the deceased several times on the head, neck and shoulder. He then fled towards his home. The incident occurred in the evening with several people at the funeral witnessing it.
According to the post mortem report, the deceased who was about 65 years of age, had multiple deep cut wounds on the head, neck and left shoulder. The Doctor formed the opinion that the cause of death was severe hemorrhage with head injury secondary to trauma. The appellant was then arrested on that information about two weeks later, and charged with the offence of murder.

The appellant on his part pleaded innocence on the charge. It was his testimony that he had indeed attended the funeral, but that he had left it early, and later learnt of the death of the deceased. He claimed that he found two other people in police custody that had been held in connection with that incident, but that these two bribed the police and were released. He also claimed to have paid Shs. 10,000/= as a bribe to the police but that the money was later returned to him. No evidence was adduced to this end as the appellant denied killing the deceased. After a full trial the superior court found the appellant guilty and sentenced him to death.

It was against this conviction that the appellant brought the appeal basing it on several grounds, mainly; that the trial Judge had failed to consider that there was bad blood between himself and prosecution witnesses and, that the post mortem was neither properly performed nor was the post mortem report properly produced as an exhibit in the first trial. The appellant also claimed that the trial Judge erred in law in failing to consider that the circumstances prevailing at the scene were not conducive to positive identification. It was the appellant’s contention that had the court evaluated the evidence; it would have found it to be both contradictory and inconsistent regarding both the time of the commission of the offence and how the incident occurred.

The appellant further submitted that by the court repeatedly using the word “murder” in the proceedings and by agreeing with the opinion of the assessors before evaluating the evidence, the superior court, shifted the burden of proof.  He also submitted that it was preemptory and indeed a misdirection for the superior court to signify its agreement with the opinion of assessors before making an independent evaluation of the evidence and coming to its own independent findings.  To this end he relied on the case of Geoffrey Nguku v Republic. These were not however, part of the grounds, of appeal.

The Appellate court in reaching its decision, noted that it had a duty to re-evaluate the evidence and come to its own independent finding. It appreciated that it had not shared the superior court’s advantage of seeing and hearing the witnesses and accepted that it had to make due allowance for that. The superior court believed the evidence of the material witnesses noting that each of them had seen the appellant cut the deceased. It further noted that none of the four material witnesses had a wrist watch, since the incident had occurred in a rural setting. This, in its opinion, accounted for the disparity in the various times that had been given by the various witnesses.

The Court of Appeal agreed with the superior court’s opinion on this issue and stated that there had been no reasons why any of the four material witnesses would have fabricated the evidence against the appellant. It also felt that the use of the word ”murder” by the superior court and its agreement with the opinion of the assessors before evaluating the evidence did not shifted the burden of proof to the appellant. It noted this misdirection did not occasion any prejudice as the superior court ultimately evaluated the evidence and made a finding that murder had in fact been proved.

On the issue of agreeing with the assessors, the Appellate court felt that although the superior court said that it had agreed with the opinion of assessors before evaluating the evidence, it nevertheless exhaustively evaluated the evidence and made its independent finding that the appellant was guilty of murder. It found that the prosecution had proved its case beyond the required standards. Therefore the misdirection had not caused a miscarriage of justice.

The court also noted that there had been no evidence in the superior court that supported the claims of bad blood between any of the prosecution witnesses and the appellant. In fact, the appellant in his own testimony had failed to indicate that there had been any bad bold as he later alleged. On the issue of the production of the post mortem, the Appellate court found that there had been no dispute as to the deceased’s cause of death as it had been established during the trial that he had died at the scene shortly after he was viciously cut with a panga on the head, neck and shoulder.

It was on this basis that the Appellate court came to the conclusion that the charge against the appellant was proved by overwhelming and credible evidence, and accordingly dismissed the appeal.

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Kenya Gazette of 12th September, 2008, Vol. CX – No. 73 

GAZETTE NOTICE NO. 8436 
OFFICE OF THE PRESIDENT 
THE NATIONAL ECONOMIC AND SOCIAL COUNCIL 

AMENDMENT 

PURSUANT to Gazette Notice No. 7699 of 2004, I, Mwai Kibaki, President and Commander-in-Chief of the Armed Forces of the Republic of Kenya, amends the said Gazette Notice:

(a) in paragraph 1 (1) –

(i) by deleting the introductory portion thereto and substituting therefor the following –

(1) The National Economic and Social Council will be chaired by His Excellency and President, or in the absence of His Excellency the President, by the Prime Minister, or in the absence of His Excellency the President and the Prime Minister, by the Minister for the time being responsible for Finance.

The Council shall comprise the following:

(ii) by deleting paragraph (b) and substituting therefor the following –

(b) the Prime Minister;

(iii) by inserting the following subparagraphs immediately after subparagraph (b) –

(ba) the Deputy Prime Minister and Minister for Trade;
(bb) the Deputy Prime Ministers and Minister for Local Government;
(bc) the Minister for the time being responsible for matters relating to –

(i) agriculture;
(ii) environment and mineral resources;
(iii) energy;
(iv) information and communication;
(v) roads;
(vi) transport;
(vii) finance;
(viii) industrialization;
(ix) Nairobi metropolitan development;
(x) planning, national development and vision 2030;
(xi) higher education, science and technology;
(xii) justice, national cohesion and constitutional affairs; and
(xiii) public health and sanitation

(bd) the Attorney-General:

(iv) by deleting subparagraph (g);

(b) by deleting the expression “2” appearing in the paragraph appearing immediately after subparagraph 1(1) and substituting therefore the expression “2”, and inserting the following new subparagraph –

(3) A person who is a member under subparagraph (1)(b), (ba), (bb) or (bd) may be accompanied by the Permanent Secretary in the Ministry during the meetings of the Council.

(c) in paragraph 2 –

(i) by deleting the words “Economic Recovery Investment Programme” appearing in subparagraph (c) and substituting therefore the words “investment programmes for economic development”;
(ii) by deleting the words “Central Bureau of Statistics” appearing in subparagraph (h) and substituting therefore the words “Kenya National Bureau of Statistics”.

Dated the 8th September, 2008.

MWAI KIBAKI,
President.

GAZETTE NOTICE NO. 8437 
OFFICE OF THE PRESIDENT 
THE NATIONAL ECONOMIC AND SOCIAL COUNCIL 

APPOINTMENT 

PURSUANT to Gazette Notice No. 7699 of 2004, I, Mwai Kibaki, President and Commander-in-Chief of the Armed Forces of the Republic of Kenya, appoints –

(a) Under paragraph 1(1)(c) –

Ayisi Makatiani
Lutaf R. Kassam
Michael Chege (Prof.)
Edward Akong’o Oyugi (Prof);

(b) Under paragraph 1(1)(d) –

Jimnah Mbaru,
Salma Mazrui,
Wilfred Murungi (Eng.),
Raphael G. Mwai,
Jacqueline Wasonga Kitulu (Dr.),
Baldip S. Rihal,
Samwel Muga K’Olale (Dr.),
Everett Maraka Standa (Prof.),
Michael Albert Allen Harries,
Shaukat Ali Abdulrazak (Prof.),
Kanyenje K. Gakombe (Dr.),

(b) Under paragraph 1 (1) (e) –

Lee Yee Cheong (Dato),
Chung Kunmo (Dr.),
Hiroyuki Hino (Prof.),
Victor Koh (Dr.),

to serve on the National Economic and Social Council:

Dated the 8th September, 2008.

MWAI KIBAKI,
President.

GAZETTE NOTICE NO. 8438

THE NATIONAL ROAD SAFETY COUNCIL 

IT IS notified for general information that the Minister for Transport has constituted a Council to be known as the National Road Safety Council.

1. The Council shall consist of –

(a) the Permanent Secretary, Ministry of Transport, or his representative;
(b) the Permanent Secretary, Ministry of Roads, or his representative;
(c) the Permanent Secretary, Ministry of Health, or his representative;
(d) the Permanent Secretary, Minister of Local Government, or his representative;
(e) the Commissioner of Police or his representative
(f) the Chairman, Transport Licensing Board;
(g) the Registrar of Motor Vehicles;
(h) the Director, Motor Vehicle Inspection Unit;
(i) the Managing Director, Kenya Bureau of Standards;
(j) the Executive Director, Kenya Roads Boards;
(k) the Executive Director, Kenya Institute of Public Policy Research and Analysis;
(l) the City Engineer, the City Council of Nairobi;
(m) the Executive Director, Association of Kenya Insurers;
(n) the Executive Director, Automobile Association of Kenya;
(o) the Chief Executive Officer, Kenya Private Sector Alliance;
(p) the Chief Executive Officer, Association of Motor Vehicle Manufacturers;
(q) a representative of the Matatu Welfare Association;
(r) a representative of the Matatu Owners Association;
(s) a representative of the Institute of Development Studies, University of Nairobi;
(t) the Chairman, Association of Persons with Disability in Kenya;
(u) a representative of the Kenya Transport Association;
(v) the Chairman, Commuters Welfare Association;
(w) the Permanent Secretary, Ministry of Nairobi Metropolitan Development, or his representative;
(x) the Secretary-General, Long Distance Truck Drivers Union.

2. (1) The Council shall advise the Minister on all matters pertaining to road safety.

(2) Without prejudice to the generality of subparagraph (1), the Council shall –

(a) determine and set out the goals and objectives for the promotion of road safety work in Kenya;
(b) plan and develop road safety education and campaign strategy to ensure compliance with acceptable and proven road safety principles;
(c) co-ordinate, monitor and evaluate road safety activities, programmes and strategies;
(d) develop and maintain a comprehensive database, and publish reports, on road safety;
(e) set standards for road safety equipment and ensure compliance thereof;
(f) recommend adoption of precautionary measures to prevent road accidents;
(g) enlist the aid of all agencies and individuals, public or private, who, in the opinion of the Council, are able to promote acceptable and proven road safety principles;
(h) foster and promote research on road safety;
(i) perform such other function as the Minister may assign.

Dated the 20th May, 2008.

C.A. MWAKWERE,
Minister for Transport.

GAZETTE NOTICE NO. 8439 
THE PEST CONTROL PRODUCTS ACT  (Cap. 346) 

APPOINTMENT 

IN EXERCISE of the powers conferred by section 5 of the Pest Control Products Act, the Minister for Agriculture appoints –

Under section 5(2)(b) –

Director, Kenya Agricultural Research Institute,
Charles K. Maitai (Prof.),

Under section 5(2)(c) –
Permanent Secretary, Ministry of Livestock Development,
Director of Veterinary Services;

Under section 5(2)(d) –
Permanent Secretary, Ministry of Industrialization;

Under section 5(2)(e) –
Permanent Secretary, Ministry of Environment and Mineral Resources;

Under section 5(2)(f) –
Permanent Secretary, Ministry of Public Health and Sanitation;

Under section 5(2)(g) –
Permanent Secretary, Ministry of Water and Irrigation;

Under section 5(2)(h) –
Director, Government Chemist;

Under section 5(2)(i) –
Director, Kenya Bureau of Standards;

Under section 5(2)(j) –
Director, Coffee Research Foundation;

Under section 5(2)(l) –
Christopher Chirchir, representative of interests of livestock farmers;

Under section 5(2)(m) –
Director of Agriculture;

to be members of the Pest Control Products Board, for a period of three (3) years, with effect from 25th August, 2008.

Dated the 2nd September, 2008.

WILLIAM ARAP RUTO,
Minister for Agriculture.

GAZETTE NOTICE NO. 8440 
THE CHILDREN ACT (No. 8 of 2001) 

APPOINTMENT 

IN EXERCISE of the powers conferred by section 73 (d)(ii) of the Children Act, 2001, the Chief Justice appoints –

Brenda N. Kituyi,
Clarence A. Otieno,

Resident Magistrates, to preside over cases involving children in respect of Nakuru and the whole of Rift Valley Province with effect from 1st August, 2008.

Dated the 11th August, 2008.

J.E. GICHERU,
Chief Justice.

GAZETTE NOTICE NO. 8441
THE MAGISTRATE’S COURTS ACT) (Cap. 10) 

INCREASE OF LIMIT OF JURISDICTION 

IN EXERCISE of the powers conferred by section 5(1) of the Magistrate’s Courts Act, the Chief Justice, increases the limit of jurisdiction of –

Brenda N. Kituyi,
Clarence A. Otieno

Resident Magistrates, to Kenya shillings five hundred thousand (KSh. 500,000), with effect from 1st August, 2008.

Dated the 11th August, 2008.

J.E. GICHERU,
Chief Justice.

GAZETTE NOTICE NO. 8636
THE KENYA POWER AND LIGHTING COMPANY LIMITED 
SCHEDULE OF TARIFFS AND RATES 2008 FOR SUPPLY OF ELECTRICITY 

FUEL COST ADJUSTMENT

IPURSUANT to clause 1 of part III of the Schedule of Tariffs and Rates 2008, notice is given that all prices for electrical energy specified in part II of the said schedule will be liable to a fuel cost adjustment of plus 778 cents per kWh, for all meter readings taken in September, 2008.

Information used to calculate the adjustment: