Ogeto v Republic (Criminal Appeal 1 of 2004) [2004] KECA 148 (KLR)

The Court set out the twin standards governing its review: the affirmative duty to re-evaluate the evidence afresh, and restraint against disturbing trial-court findings of fact. It then conducted its own assessment of the eyewitness and recognition evidence rather than deferring to the trial judge, and found no basis - no absence of evidence, misapprehension, or wrong principle - for upsetting the finding that the appellant inflicted the fatal injury on the deceased.

The Court applied this standard to the trial judge's finding that the cogent evidence of Onkoba coupled with the graphic and credible evidence of Migiro conclusively proved that the appellant inflicted the fatal injury. It had not been said or shown that the findings were based on no evidence or misapprehension, or that the judge acted on wrong principles. The finding therefore stood, and the Court's own re-evaluation led it to the same conclusion.

Section 77(1) allows a document under the hand of a medical practitioner to be used in evidence, and section 77(2) permits the court to presume the signature genuine and that the signatory held the office and qualification professed. Defence counsel did not object to production by Corporal Ambani, did not ask for Dr Ondigo Steven for cross-examination, and the trial court saw no need to summon him. The hearsay objection failed; in any event the cause of death was not in issue at the trial.

The appellant had received the alibi warning under the repealed section 235(b) of the Criminal Procedure Code at committal, at which stage his counsel recorded that no alibi was being raised. His unsworn statement at trial did not assert that he was elsewhere when the deceased was stabbed; the alleged alibi surfaced only in a statement under inquiry made to the police, which was never produced or relied on. There was therefore no alibi before the trial court to analyse, and the ground failed.

Counsel contended that because motive was not established, malice aforethought was unproved and manslaughter was the proper verdict. The Court held that motive is neither necessary for, nor sufficient by itself to prove, the commission of a crime, citing Karukenya. Malice aforethought is a matter of inference from the nature of the attack: stabbing the deceased with a knife on the chest permitted the inference of an intention to cause death or grievous harm, so the murder conviction was proper.

Onkoba's evidence survived intense cross-examination and remained consistent; he and Migiro both knew the appellant beforehand, all came from the same neighbourhood, and the stabbing occurred while there was still sunlight, Migiro's encounter with the appellant occurring before dark. The Court bore in mind that an honest witness may still be mistaken, but found this a case of recognition rather than identification of a stranger, and was satisfied that the evidence of Onkoba and Migiro was credible, reliable and free from doubt.