Nicodemus Arasa Onzembe v Republic [2005] KECA 76 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a police officer's appeal, ruling self-defence fails without credible evidence of imminent danger when lethal force is used.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant's claim of self-defence could stand against the prosecution evidence that he shot the deceased in the back of the head as he fled
Rejected. There was no credible evidence of imminent danger; the shooting by the appellant police officer on duty was an unlawful act amounting to manslaughter.
Five eyewitnesses (PW1 to PW5) testified that the appellant called the deceased out of the Mwireri Busaa Club, held him by the shirt, and shot him from behind as he fled after slipping out of his shirt. Dr. Jane Wasike's postmortem confirmed the deceased was shot from behind, with the entry wound to the occipital region. The appellant's account of a group attack was disbelieved, and his testimony that there was no struggle was inconsistent with his claim of a chest injury; PC Kinoti saw no visible injury on him. The plea of imminent danger therefore failed.
Appellate review of the trial court's evaluation of oral evidence
The trial judge's evaluation was correct and his conclusions could not be faulted; the Court had no reason to differ from his findings.
The appellant asserted that a group of four people led by the deceased attacked him, but the trial court, which saw and heard PW1 to PW5, rejected that claim and found that the appellant called the deceased out of the bar immediately before the shooting. The Court of Appeal held that this evaluation of oral evidence could not be faulted, deferring to the trial court's advantage in assessing the witnesses' demeanour and credibility.
Lawfulness of the sentence of four years imprisonment
The sentence was lawful and, if anything, lenient; the appeal against sentence failed.
Having upheld the conviction for manslaughter under section 202 of the Penal Code, the Court turned to the four-year term imposed by the trial court. It held the sentence lawful and observed that it was, if anything, lenient, declining to interfere with it. The appeal against sentence therefore failed together with the appeal against conviction.
Police officers consuming alcohol in bars while armed on duty
The Court strongly deprecated the practice of police officers drinking alcoholic beverages in bars while in possession of firearms while on duty.
Though unnecessary to the disposal of the appeal, the Court took the opportunity to condemn the practice, the appellant and his patrol colleague PC Kinoti having drunk beer in bars during the patrol on the night of the shooting. The admonition is an addendum and does not form part of the ratio deciding the appeal.
Legal principles established
#- Self-defence cannot succeed absent credible evidence that the accused was in imminent danger when he used lethal force; a shooting in such circumstances is an unlawful act.
- An appellate court will not disturb findings of fact made by a trial court that had the benefit of seeing and hearing the witnesses unless it has reason to differ from those findings.
- Causing the death of another person by an unlawful act is the felony of manslaughter under section 202 of the Penal Code.
Court orders
#- 1.The appeal of the appellant against his conviction and sentence is hereby dismissed.
- On appeal from
- High Court of Kenya (referred to in the judgment as 'the superior court')
- Jurisdiction invoked
- First appeal to the Court of Appeal against conviction and sentence; no jurisdictional provision is expressly invoked in the judgment (the charging provisions were sections 203 and 204 of the Penal Code, Cap 63)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nicodemus Arasa Onzembe v Republic [2005] KECA 76 (KLR)", Case Analysis (2005). Criminal Appeal 151 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/76/eng@2005-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.