DUNCAN WAHOME WAMAE vs REPUBLIC [1998] KECA 198 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Admissibility and use of the alleged dying declaration by Ngatia
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.
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.
Voluntariness of the inquiry statement recorded by the investigating officer
The statement was voluntarily made and was properly taken by P.W.23; the investigating officer was not barred from recording it.
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.
Corroboration of the retracted statement and the pointing-out conduct
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.
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.
Duplicate death sentences on two counts from the same robbery
Only one death sentence may stand; the sentence on count two was set aside and the sentence on count one confirmed.
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.
Legal principles established
#- 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
#- 1.Appeal against the convictions dismissed
- 2.Sentence of death imposed on count two set aside and no penalty imposed on that count
- 3.Sentence of death imposed on count one retained and confirmed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.