Mark Arisi Mogere Mathews Motari Kerange v Republic
The bottom line
#Kenya's Court of Appeal freed two men convicted of murder because the trial judge failed to properly explain why they, not their co-accused, were guilty.
What this practically means
#Executive summary
#Key legal issues
#Selective conviction of some accused and acquittal of others on the same evidence
It was improper to convict the appellants and acquit their co-accused on the same evidence where no evidence particular to the convicted persons was identified.
The appellants were jointly charged with three others who were acquitted. The trial judge did not set out evidence particular to the appellants that did not apply to the acquitted co-accused, and dealt with the evidence perfunctorily, appearing to act on whims. Counsel for the State did not support the conviction, and the court agreed the conviction was improper.
Compliance with section 169(1) of the Criminal Procedure Code in writing judgments
The trial judgment failed to comply with the statutory directions for writing judgments, vitiating the conviction.
The court noted, on the State's own concession, that the trial judge's judgment did not comply with the clear directions under section 169(1) of the Criminal Procedure Code. A judgment that fails to meet these statutory requirements cannot stand on appeal.
Summing up to assessors
The trial judge did not properly sum up the case to the assessors; the notes showed only headings, not what was actually said.
The record contained only headings of matters the judge may have addressed, without showing what he told the assessors. The court held that summing-up notes must give sufficient detail, even in note form, to enable an appellate court to see what directions were given to the assessors.
Failure to call essential witnesses as part of the res gestae
The prosecution's unexplained failure to call essential witnesses, such as the parents of the sick child, undermined the conviction.
Although not directly relevant to the elements of the charge, the parents of the sick child were essential witnesses as part of the res gestae, to explain how the child fell sick, why villagers were summoned, and whether the child recovered. No explanation for their absence was on record.
Legal principles established
#- A trial judge must not convict some accused persons and acquit others on the same evidence without setting out evidence particular to those convicted.
- A trial judge's judgment must comply with the directions in section 169(1) of the Criminal Procedure Code.
- Notes on summing up to assessors must give sufficient details, albeit in note form, to show an appellate court what directions were given.
- Where essential witnesses are not called by the prosecution, an explanation must be on record.
Court orders
#- 1.Appeal allowed
- 2.Appellants' respective convictions quashed
- 3.Sentences set aside
- 4.Appellants set at liberty forthwith unless otherwise lawfully held
- On appeal from
- High Court of Kenya at Kisii
- H.C.CR.C. No. 13 of 1996
- Jurisdiction invoked
- First appellate criminal appeal against conviction and sentence from the High Court (Criminal Procedure Code appellate jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mark Arisi Mogere Mathews Motari Kerange v Republic", Case Analysis (1997). Criminal Appeal No. 69 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/290/eng@1997-11-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.