Muiruri Njoroge and Joseph Waweru Koimbatha vs Republic [1983] KECA 127 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that if you join others to commit a crime like robbery, you can be convicted of murder even if someone else strikes the fatal blow.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the skull found in the bush was satisfactorily identified as that of the deceased, Elijah Kariuki Komu
- 2.Whether the death of the deceased and its cause were established
- 3.Whether the repudiated inquiry and charge-and-caution statements of the appellants were voluntary and what evidential weight they bore
- 4.Whether possession of the deceased's recently stolen cattle and sheep, some four and a half months after the death, sustained a presumption that the appellants were the thieves
- 5.Whether, assuming Karuga alone inflicted the fatal blows, the appellants were nonetheless guilty of murder under the common intention rule in Section 21 of the Penal Code
Key legal issues
#Identification of the deceased's skull and proof of death
Death was established by the disappearance of the deceased, the finding and identification of the skull, and the appellants' own statements that they threw the body into the bush; whoever inflicted the skull injury had malice aforethought.
Samson identified the skull by the gap in the lower teeth and the coat lying near it, and Esther Wangari also identified it. Articles found near the skull lent credence to this evidence, and Muiruri's statement that he showed the police where they threw the body reinforced it. The post-mortem established brain haemorrhage from a fractured skull inflicted with a blunt object used with considerable force.
Weight of repudiated inquiry and cautionary statements
The repudiated statements, being voluntary, were not confessions but formed part of the circumstantial evidence to be considered as a whole with appropriate weight.
Both appellants repudiated their inquiry and charge-and-caution statements. The court held the statements were voluntary and not confessions, but treated them as part of the circumstantial evidence, finding corroboration in the possession of the deceased's cattle, sheep and clothing, the purchasers' evidence, and the finding of a mattress and big stone near the skull.
Common intention under Section 21 of the Penal Code
Even assuming Karuga alone killed the deceased, the appellants were parties to a common purpose to rob, and the death was a probable consequence of that unlawful design; each is deemed to have committed the act.
The three set out armed to rob the deceased. After Karuga struck the fatal blows, the appellants aided in disposing of the body. The death was a probable consequence which could necessarily ensue from their unlawful design to rob, and their common intention was inferable from their presence and actions and their failure to dissociate themselves from the assault, per R v Tabulayenka s/o Kinya.
Presumption from possession of recently stolen property
A period of four and a half months between the estimated death and the finding of the deceased's property in the appellants' possession did not exclude the presumption that they stole the cattle and sheep.
Following its own decision in Gichoi v Republic, where three months was held not too long a period, the court held that in all the circumstances, including the attendant features it had highlighted, four and a half months' possession of the deceased's stolen cattle and clothing still permitted the presumption that the appellants were the thieves rather than receivers. Their unsworn statements explaining the possession were found to be false.
Legal principles established
#- Where several persons combine for an unlawful purpose and one of them kills a man in the prosecution of that purpose, it is murder in all who are present, whether they actually aided or abetted or not, provided the death was caused in the course of effecting the common object
- Possession of recently stolen property, even after several months, may sustain the presumption that the possessor was the thief rather than a receiver, depending on the circumstances
- Common intention may be inferred from presence, actions and omission to dissociate oneself from the assault
Court orders
#- 1.The appeals of both appellants are dismissed and their convictions for murder affirmed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Nakuru
- Jurisdiction invoked
- First appellate criminal appeal under the Criminal Procedure Code (not stated in the judgment)
Relief refused
#Second appellant's contention that the skull was not satisfactorily identified as the deceased's
The skull was identified by Samson, corroborated by articles found near it and by Muiruri's statement that he showed police where the body was thrown
The appellants' claim that they intended only to rob and it was Karuga alone who killed the deceased
Under Section 21 of the Penal Code, death caused in prosecution of the common unlawful purpose of robbery is murder in all present, whether they actually aided and abetted or not
Costs
No costs order made (criminal appeal)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
If several persons combine for an unlawful purpose and one of the in the prosecution of it kills a man it is murder in all who are present whether they actually aided or abetted or not provided that the death was caused by the act of someone of the party in the course of his endeavors to effect the common object of the assembly.
Their common intention may be inferred from their presence, their actions and the omission of either of them to disassociate himself from the assault
In any event they were not confessions. They were however a part of the circumstantial evidence against the appellants, to be considered as a whole in each case with appropriate weight only.
we do not consider the period of four and a half months was so great as to exclude the presumption that the appellants stole the deceased's cattle and sheep.
The appellants were convicted and we order their appeals to be dismissed.
Issues in the judgment
#The judgment bears two dates: the hearing/opening records '24 March, 1983' while the closing line records '22 March 1983'
The case name is printed inconsistently within the judgment, 'R v Tabulayenka s/o Kinya' in the cases-referred list but 'R v Tabulayenka s/o Kirya' in the body
The third accused, Karuga Mwangi, is described as acquitted, though the judgment does not state by whom or at what stage
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muiruri Njoroge and Joseph Waweru Koimbatha vs Republic [1983] KECA 127 (KLR)", Case Analysis (1983). Criminal Appeal No 115 of 1982. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/127/eng@1983-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.