Johnson Nyoike Muiruri v Republic [1983] KECA 1 (KLR)

The court restated the procedure under section 19 of the Oaths and Statutory Declarations Act and section 124 of the Evidence Act: the court must form an opinion on voire dire whether the child understands the oath; if not, unsworn evidence may be received if the child has sufficient intelligence and understands the duty to speak the truth, but unsworn evidence requires corroboration. Here Wambere was examined as required, and Maina, aged fifteen, was not a child of tender years. Githinji's and Maina's evidence corroborated Wambere's account, so the omission of a warning caused no miscarriage.

Three witnesses (the watchman, Maina and Wambere) testified that the appellant and deceased appeared normal on returning home, and there was no evidence they were drunk. State Counsel's submission, which the court adopted, was that the appellant's deliberate conduct in locking the bedroom door, threatening to kill anyone who interfered, and carrying the deceased to a place from which she could be thrown over negatived incapacity to form the intention to kill. Throwing the deceased two floors down showed knowledge that grievous harm would result.

On the appellant's own statement, any incident with the glass was patched up between them, so it could not constitute provocation. To reject the prosecution evidence the court would have to accept that Githinji, Maina and Wambere, without any apparent motive, fabricated a complicated series of events including the throwing of the deceased from the verandah. The court found the three witnesses worthy of belief, and it followed that the appellant's suicide explanation was false.

The court noted that the learned judge told the assessors the appellant had made an unsworn statement which could not be tested by cross-examination. The court declared that an accused person has a statutory right to make an unsworn statement and that this decision should not be the subject of unfavourable comment or any comment at all. The court nonetheless did not treat this as a ground for allowing the appeal, the conviction being otherwise supported by admissible and corroborated evidence.

Mr. Muli, for the appellant, abandoned the ground that the sentence was harsh and excessive. The court pointed out, in any event, that the sentence was neither harsh nor excessive on a conviction of murder because section 204 of the Penal Code prescribes death as the mandatory sentence. Before sentence the appellant's advocate told the court there was no motion in arrest of judgment, and the appellant himself said he had nothing to offer in mitigation.