LERESON LEBURTA vs REPUBLIC [1998] KECA 87 (KLR)
The bottom line
#Kenya's Court of Appeal reduced a double murder conviction and death sentences to manslaughter, ruling prosecutors must prove murderous intent beyond reasonable doubt.
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 evidence established malice aforethought so as to sustain convictions for murder, or whether the offence disclosed was manslaughter
- 2.Whether the variance in the date of the offence between the charge and the evidence was fatal
- 3.Whether the imposition of two death sentences on the two counts was proper
Key legal issues
#Whether murder was proved beyond the absence of malice aforethought
Murder was not proved; the killings occurred in the course of a drunken fight and only manslaughter was established.
The appellant's charge and cautionary statement described a fight with the deceased arising from drunkenness, in the course of which he strangled her. The extent of the fight and whether the deceased hit back were matters the prosecution was bound to prove, and there was no evidence on them. The child's death also appeared to have occurred in or immediately after the fight. Malice aforethought, an essential ingredient under section 203, was therefore not established, and the convictions for murder could not stand.
Variance in the date of the offence
The variance between the date alleged in the charge (10th March 1994) and the evidence (8th or 9th March 1994) was curable under section 382 of the Criminal Procedure Code.
The court noted the discrepancy between the date in the charge and cautionary statement and the evidence indicating the killings occurred on 8th or 9th March 1994. It held this variance was not fatal, being curable under the relevant provisions of section 382 of the Criminal Procedure Code, and did not affect the outcome of the appeal.
Imposition of two death sentences
Sentencing the appellant to death twice on the two counts was irregular but could have been resolved by suspending one of the death sentences.
The court observed that sentencing the appellant to suffer death on each of the two counts of murder was an irregularity which could have been resolved by suspending one of the death sentences. In the event, both death sentences were set aside and concurrent terms of eight years' imprisonment were substituted on the manslaughter convictions.
Legal principles established
#- The burden of proving malice aforethought in a murder charge rests on the prosecution; evidence raising a reasonable probability of absence of malice aforethought discharges the accused and leaves murder unproved, permitting substitution of manslaughter if proved.
Court orders
#- 1.Conviction on the two counts of murder quashed
- 2.Sentence of death on each count set aside
- 3.Substituted conviction of manslaughter contrary to section 205 of the Penal Code on both counts
- 4.Sentence of 8 years imprisonment on each of the two counts, both sentences to run concurrently from 3rd October, 1997
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nakuru
- H.C.CR.C. No. 4 of 1995
- Jurisdiction invoked
- First appeal to the Court of Appeal against conviction and sentence on a murder charge (Criminal Appeal No. 4 of 1998)
Relief refused
#Acquittal on both counts
The court found the appellant guilty of the lesser offence of manslaughter on both counts and substituted convictions and sentences accordingly
Costs
No costs order made in the judgment.
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.
Consequently, his conviction on the two counts of murder is insupportable. The same is therefore quashed and the sentence of death on each count is set aside and in place therefor we substitute a conviction of manslaughter contrary to section 205 of the Penal Code on both counts and sentence the appellant to 8 years imprisonment on each of the two counts.
It is sufficient if there is evidence which raises a reasonable probability of absence of malice aforethought. Once this is the effect of such evidence, then the onus lying upon the prosecution is not discharged and the offence of murder is not proved
Where the evidence falls short of establishing the offence of murder, a conviction of manslaughter may be substituted therefor provided this lesser offence is proved.
To this extent, the appellant's appeal is allowed.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "LERESON LEBURTA vs REPUBLIC [1998] KECA 87 (KLR)", Case Analysis (1998). Criminal Appeal No. 4 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/87/eng@1998-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.