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Court of AppealAllowedCriminal Appeal No 47 of 2003· [2003] KECA 163 (KLR)

Achira v Republic (Criminal Appeal 47 of 2003) [2003] KECA 163 (KLR)

Court of Appeal of Kenya
28 November 2003
ROR.S.C OmoloEGE.M. GithinjiJOJ.W. Onyango-Otieno
2,332 words in judgment
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The bottom line

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Kenya's Court of Appeal quashed a murder conviction and death sentence because the evidence against the accused was unreliable and improperly evaluated.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Omolo, Githinji and Onyango-Otieno JJA) allowed the appellant's first appeal against his conviction by Wambilyanga J at the High Court in Kisii for the murder of John Nyambati Nyarusa on 12 August 1999, for which he had been sentenced to death. The prosecution case rested solely on circumstantial evidence and a dying declaration; there was no direct evidence of the stabbing. The Court re-evaluated the evidence as required on a first appeal and found the trial judge had misdirected himself in several respects. First, he failed to address material divergences in the prosecution accounts of what preceded the stabbing. Secondly, he treated Daniel's evidence of finding the appellant wiping blood from a knife as decisive without resolving inconsistencies in distances and without considering the appellant's unrebutted evidence, verified by the Remand Visitors Book, that Daniel had visited him in prison and apologized for fabricating evidence. Thirdly, he found as a fact that Ishmael and Henry saw the appellant fleeing when no witness said so, and their evidence was in any event uncorroborated accomplice evidence. Fourthly, the dying declaration was unreliable: the witnesses reporting it had been told by Daniel who the assailant was, their accounts were inconsistent, and the alleged corroboration was discredited. The Court applied the established rule that it is unsafe to base a conviction solely on a dying declaration absent satisfactory corroboration. State counsel properly conceded the appeal. The conviction was quashed, the death sentence set aside, and the appellant ordered released forthwith unless lawfully detained for another offence.

Key legal issues

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01

Sufficiency of circumstantial evidence

Holding

The circumstantial evidence did not satisfy the tests for a conviction; co-existing circumstances (no flight, no arrest attempt by bystanders, appellant found at home) weakened the evidence placing the appellant at the scene.

Reasoning

Daniel's evidence of finding the appellant wiping blood from a knife was undermined by his inability to describe the knife, uncertainty about distances, and Collins' shifting estimates of distance. The appellant did not flee or hide and was found at home; the crowd at the scene did not attempt to arrest him. These co-existing circumstances weakened the key circumstantial evidence, and the trial judge misdirected himself in finding the appellant was seen fleeing when no witness said so.

p. 4
02

Accomplice evidence and corroboration

Holding

The evidence of Ishmael and Henry was accomplice evidence which was not corroborated and therefore unreliable.

Reasoning

Ishmael and Henry were among the people mentioned adversely by the deceased as having held him. Their evidence that they saw the appellant fleeing was not in fact given, and even if it were, being accomplice evidence it required corroboration which was absent. The trial judge's reliance on it as both circumstantial evidence and corroboration of the dying declaration was a serious misdirection.

p. 4
03

Reliability of the dying declaration

Holding

The dying declaration was not reliable: the witnesses who reported it had first been told by Daniel that the Councillor stabbed the deceased, their accounts were inconsistent, and the claimed corroboration was discredited.

Reasoning

Elizaphan, Collins and Jane each claimed the deceased told them the Councillor stabbed him, but each had earlier been told this by Daniel, tainting their evidence. Their accounts of what the deceased said were inconsistent. The appellant's unrebutted evidence that Daniel visited him in prison and apologized for fabricated evidence discredited Daniel, so his evidence could not corroborate the declaration, and the judge wrongly used Ishmael's and Henry's evidence as corroboration.

p. 5
04

Failure to consider the appellant's defence

Holding

The trial judge failed to consider or direct the assessors on the appellant's evidence that Daniel visited him in prison and apologized for giving fabricated evidence, which was verified by the Remand Visitors Book.

Reasoning

The appellant's alibi and his claim of a prison visit by Daniel, corroborated by the Remand Visitors Book, went to the credibility of the principal witness. The judge neither evaluated this evidence nor directed the assessors on it, amounting to a misdirection that permeated his reliance on Daniel's evidence both as circumstantial evidence and as corroboration of the dying declaration.

p. 3

Legal principles established

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  • On a first appeal, the appellate court must reconsider and re-evaluate the evidence and draw its own conclusions, making allowance for the trial court's advantage of hearing and seeing the witnesses.
  • It is unsafe to base a conviction solely on a dying declaration made in the absence of the accused and not subject to cross-examination unless there is satisfactory corroboration.
  • Evidence of persons implicated alongside the accused by a dying declaration cannot corroborate that declaration.
  • A trial judge must direct assessors on material divergences in the prosecution evidence and on the accused's defence, including unrebutted evidence discrediting a key witness.

Court orders

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  1. 1.Appeal allowed
  2. 2.Conviction quashed
  3. 3.Sentence of death set aside
  4. 4.Appellant to be released forthwith unless lawfully detained for another offence

Authorities

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Legislation

  • Penal Codesection 203
  • Penal Codesection 204

Cases cited (7)

  • Okeno v Republic
    [1972] EA 32
  • Ngui v Republic
    [1984] KLR 729
  • Simon Musoke v Republic
    [1958] EA 715
  • James Mwangi v Republic
    [1983] KLR 327
  • Pius Jasunga s/o Akumu v R
    (1954) 21 EACA 331
  • Okale v Republic
    [1965] EA 556
  • Aluta v Republic
    [1985] KLR 543
On appeal from
High Court of Kenya, Kisii
Jurisdiction invoked
First appeal to the Court of Appeal against conviction and sentence for murder under sections 203 and 204 of the Penal Code

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (16)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Achira v Republic (Criminal Appeal 47 of 2003) [2003] KECA 163 (KLR)", Case Analysis (2003). Criminal Appeal No 47 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/163/eng@2003-11-28

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