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Court of AppealPartially AllowedCriminal Appeal No. 57 of 1991· [1998] KECA 198 (KLR)

DUNCAN WAHOME WAMAE vs REPUBLIC [1998] KECA 198 (KLR)

Court of Appeal of Kenya
17 July 1998
3,357 words in judgment
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The bottom line

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

What this practically means

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Executive summary

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This was a second appeal by Duncan Wahome Wamae against his conviction on two counts of robbery with violence contrary to section 296(2) of the Penal Code and the resultant death sentences, following dismissal of his first appeal by the High Court (Porter and Mwera, JJ.) on 31st May 1991. As a second appeal, only matters of law fell for determination. The Court of Appeal held that what Ngatia told the 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 could not itself corroborate the appellant's retracted inquiry statement. On voluntariness, the Court held this was a question of fact on which the concurrent findings of the two lower courts were supported by evidence, there being no basis for interference. Significantly, the Court endorsed Mbori's case and declared that the oft-cited Karura dictum barring investigating officers from recording any statement from a suspect was made per incuriam; an investigating officer may record a voluntarily made statement, though it becomes inadvisable once he decides to charge. The Court found adequate corroboration of the retracted statement in the appellant's voluntary pointing out of the burial spot of P.W.18's son. The appeal against convictions was dismissed, but the Court held an accused cannot be hanged twice for the same robbery: it set aside the death sentence on count two, imposing no penalty, and confirmed the death sentence on count one.

Key legal issues

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01

Admissibility and use of the alleged dying declaration by Ngatia

Holding

What Ngatia told the police was not a dying declaration under section 33 of the Evidence Act because the cause of his injuries was not a subject of inquiry; even if it were, it could not corroborate the appellant's retracted inquiry statement.

Reasoning

The High Court rightly rejected the magistrate's approach. A statement is only a dying declaration under section 33 where the cause of death is in issue. Had Ngatia survived, his account would have been co-accused evidence of the weakest character, usable only to lend credence to independent evidence. Since a dying declaration itself conventionally requires corroboration, it cannot logically serve as corroboration for a retracted confession.

p. 2
02

Voluntariness of the inquiry statement recorded by the investigating officer

Holding

The statement was voluntarily made and was properly taken by P.W.23; the investigating officer was not barred from recording it.

Reasoning

Voluntariness is a question of fact. The trial magistrate and the High Court, which was duty-bound to re-evaluate the evidence, both found the statement voluntary. The appellant admitted having a leg wound at arrest, undermining his claim of police-inflicted injuries. The Karura dictum barring investigating officers from recording statements was per incuriam, as authoritatively settled in Mbori's case; the court adopted that position and added nothing.

p. 5
03

Corroboration of the retracted statement and the pointing-out conduct

Holding

The appellant's conduct in pointing out places, being part of the alleged confession and allegedly compelled, itself required corroboration, which was found in the evidence of P.W.18 that the appellant voluntarily pointed out the burial spot in the forest.

Reasoning

The High Court had treated the pointing-out as corroborating the inquiry statement, but since the appellant claimed compulsion, that conduct was part of the alleged confession and equally required corroboration. The court found independent corroboration in P.W.18's evidence of the pointing out of the burial site, and held that the voluntariness of the pointing out was a question of fact on which the High Court's conclusion was supported by evidence.

p. 5
04

Duplicate death sentences on two counts from the same robbery

Holding

Only one death sentence may stand; the sentence on count two was set aside and the sentence on count one confirmed.

Reasoning

The court found it inconceivable that the appellant could be hanged twice for the same robbery. The proper order is to impose the penalty on the first count and leave the second count in abeyance, which the court did by setting aside the death sentence on count two and imposing no penalty on it.

p. 5

Legal principles established

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  • An investigating officer is not barred by law from recording a voluntarily made statement from a suspect; the views in Karura's case were per incuriam. A statement recorded by an investigating officer is not automatically inadmissible, though once the officer decides to charge the suspect it would be inadvisable if not improper for him to record an inquiry statement.
  • A dying declaration that itself requires corroboration cannot be used to corroborate a retracted statement of an accused; evidence of a co-accused is of the weakest character and can only lend credence to other independent evidence.
  • On a second appeal only matters of law fall for consideration, and the first appellate court is duty-bound to reconsider the evidence, evaluate it itself and draw its own conclusions.
  • Where an accused is sentenced to death on two counts arising from the same robbery, only one death sentence should stand; the proper course is to impose the penalty on the first count and leave the second in abeyance.

Court orders

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  1. 1.Appeal against the convictions dismissed
  2. 2.Sentence of death imposed on count two set aside and no penalty imposed on that count
  3. 3.Sentence of death imposed on count one retained and confirmed

Authorities

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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 on matters of law only (the appellant appealed to this Court a second time and that being so, only matters of law fall for our consideration and determination)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "DUNCAN WAHOME WAMAE vs REPUBLIC [1998] KECA 198 (KLR)", Case Analysis (1998). Criminal Appeal No. 57 of 1991. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/198/eng@1998-07-17

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