Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCriminal Appeal No. 57 of 1991· [1998] KECA 63 (KLR)

DUNCAN WAHOME WAMAE vs REPUBLIC [1998] KECA 63 (KLR)

Court of Appeal
17 July 1998
3,348 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed a robbery conviction but ruled a person cannot be sentenced to death twice for the same robbery.

What this practically means

#

Executive summary

#
The appellant was convicted by the Nyeri Principal Magistrate on two counts of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death on each count. His first appeal to the High Court (Porter and Mwera, JJ.) was dismissed on 31 May 1991. On second appeal, the Court of Appeal (Gicheru, Omolo and Lakha, JJ.A.) confined itself to matters of law. The Court held that what Ngatia told police before dying was not a dying declaration under section 33 of the Evidence Act, since the cause of his injuries was not in issue, and that in any event a dying declaration requiring corroboration cannot itself corroborate a retracted inquiry statement. The Court affirmed the finding that the appellant's statement under inquiry, recorded by the investigating officer, was voluntary, treating voluntariness as a question of fact. It expressly held that the decision in Joseph Njaramba Karura v Republic, which barred investigating officers from recording statements, was per incuriam, endorsing Mbori and Bassan & Wathioba: an investigating officer may record a voluntarily made statement after proper caution, though a new officer should take over once a decision to charge is made. The Court found adequate corroboration in the appellant's voluntary pointing out of the burial spot of P.W.18's son. The appeal against the convictions was dismissed, but the Court varied the sentence: the death sentence on count two was set aside with no penalty imposed, and the death sentence on count one was confirmed, the Court observing that the appellant could not be hanged twice over.

Key legal issues

#
01

Admissibility and use of Ngatia's statements to police as a dying declaration

Holding

What Ngatia told the police did not amount to a dying declaration under section 33 of the Evidence Act because the cause of his injuries was not in issue before the magistrate; and even if it were a dying declaration, it could not corroborate the appellant's retracted inquiry statement.

Reasoning

The High Court correctly noted that who or what caused Ngatia's fatal injuries was not a subject of inquiry before the magistrate, so the statement did not meet the section 33 threshold. Had Ngatia survived, his account would have been co-accused evidence of the weakest character. Since a dying declaration itself conventionally requires corroboration, it logically cannot serve as corroboration for the accused's retracted statement.

p. 2
02

Voluntariness of the appellant's statement under inquiry recorded by the investigating officer

Holding

The statement was voluntarily made; voluntariness is a question of fact, and both the trial court and the High Court, which was duty-bound to re-evaluate the evidence, properly found it voluntary despite the magistrate's failure to comment on the medical card.

Reasoning

The appellant admitted having a leg wound at the time of arrest, undermining his claim that the medical card evidenced police brutality. The High Court, as first appellate court, was obliged to reconsider and evaluate the evidence itself under Okeno v Republic and did so exhaustively, noting the statement was made the same day of arrest and in the appellant's own hand and language. Its factual conclusion cannot be disturbed on second appeal.

p. 3
03

Whether an investigating officer may record a suspect's statement

Holding

The proposition in Karura that an investigating officer should not record a confession was made per incuriam; an investigating officer may properly record a voluntarily made statement after giving the proper caution, though once he decides to charge, a new officer should take over.

Reasoning

The Court endorsed the reasoning in Mbori and the passage from Bassan & Wathioba, holding it impracticable to require a fresh officer for every statement in early investigations. The only impropriety arises once the officer has decided to charge the suspect. The Court adopted Lord Sumner's statement in Ibrahim v Rex that no statement is admissible unless shown by the prosecution to be voluntary.

p. 4
04

Corroboration of the retracted statement and the pointing-out conduct

Holding

The appellant's conduct in pointing out places to the police formed part of the alleged confession and itself required corroboration; such corroboration was found in the independent evidence of P.W.18 that the appellant voluntarily pointed out the burial spot in the forest.

Reasoning

Because the appellant claimed he was compelled to lead police to the McReady home and point out places, that evidence could not itself corroborate the written confession. However, the High Court found, and this Court agreed, that P.W.18's evidence that the appellant voluntarily pointed out the burial spot of his son corroborated the police evidence that the pointing out was voluntary. Voluntariness of the pointing out was a question of fact properly resolved on the record.

p. 4

Legal principles established

#
  • On a second appeal to the Court of Appeal, only matters of law fall for consideration and determination
  • What a person later charged jointly with the accused tells police is evidence of the weakest character, usable only to lend credence to other independent evidence
  • A dying declaration that itself requires corroboration cannot be used to corroborate a retracted statement of the accused
  • An investigating officer may lawfully record a voluntarily made statement from a suspect after giving the proper caution; the contrary view in Karura was per incuriam
  • Where an accused is sentenced to death on two counts arising from the same robbery, only one death sentence should stand; the second is left in abeyance

Court orders

#
  1. 1.Dismissal of the appeal against the convictions on both counts
  2. 2.Setting aside of the sentence of death imposed on count two, with no penalty imposed on that count
  3. 3.Retention and confirmation of the sentence of death imposed on count one

Authorities

#

Legislation

  • Penal Codesection 296(2)
  • Evidence Actsection 33

Cases cited (7)

  • Gopa s/o Gidamebanya & Others v R
    (1953) 20 EACA 318
  • Okethi Okale v R
    [1965] EA 555
  • Okeno v Rep
    [1972] EA 32
  • Joseph Njaramba Karura v Republic
    (1982-88) 1 KAR 1165
  • Joseph Juma Mbori v Republic
    Criminal Appeal No. 6 of 1992 (Unreported)
  • Bassan & Wathioba v Reg
    [1960] EA 521
  • R v Voisin
    (1918) 1 K.B. 531
On appeal from
High Court of Kenya at Nairobi
H.C.CR.A. No. 350 of 1987
Jurisdiction invoked
Second appeal to the Court of Appeal under the Judicature framework, confined to matters of law

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "DUNCAN WAHOME WAMAE vs REPUBLIC [1998] KECA 63 (KLR)", Case Analysis (1998). Criminal Appeal No. 57 of 1991. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/63/eng@1998-07-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.