Lazarus Wanjala Musubili & another v Republic [2005] KECA 130 (KLR)
The bottom line
#Kenya's Court of Appeal upheld two brothers' manslaughter convictions, ruling prosecutors did nothing wrong by not calling their mother as a witness.
What this practically means
#Executive summary
#Key legal issues
#Whether the prosecution's failure to call Mary Masinde as a witness entitled the courts below to infer that her evidence would have been adverse to the prosecution.
Mary Masinde was not a material witness. The unchallenged evidence placed only the two appellants with the deceased at the scene; Mary Masinde arrived only after the deceased had been brought to her compound and never named any assailant to P.W.1. The Bukenya inference was therefore unavailable.
The deceased was found stealing cassava, was beaten, and was taken to Mary Masinde's compound, from where she went to inform the deceased's wife. Eyewitnesses P.W.2 and P.W.3 each found only the deceased and the two appellants at the scene and were believed by both courts below. Since Mary Masinde was never at the scene and never identified any assailant, she could have given no adverse evidence. Under Bukenya the inference arises only where the witness is material and the evidence called is barely adequate; neither condition obtained.
Whether the superior court deprived the appellants of their constitutional right to be represented by an advocate of their choice.
It did not. The appellants were represented by Mr. Nyabochwa throughout, and when he was absent at the resumed hearing they elected to proceed, telling the court they were ready to do so; no deprivation of the right occurred.
Mr. Nyabochwa, the advocate of the appellants' choice, had been absent on earlier occasions and was again absent when the appeal came up on 16th September 2003. The appellants did not seek an adjournment; they told the court 'We are ready to proceed with our appeal'. In the face of that election by the appellants themselves, the hearing that followed did not deprive them of the constitutional right to counsel of their choice, and the contention was rejected.
Whether the Court could interfere with the five-year sentence imposed on each appellant.
It could not. The sentence was lawful and the Court declined to interfere, dismissing the consolidated appeals in toto.
The appellants' two issues of law, both of which the Court rejected, did not impugn the sentence. Turning to disposition, the Court found the five-year term imposed on each appellant for the unlawful killing to be lawful. Sitting as a second appellate court able to deal only with matters of law, it declined to interfere with the sentence and dismissed the consolidated appeals in totality, leaving the sentence imposed by the trial magistrate in place as ordered by the Commissioner of Assize.
Legal principles established
#- On a second appeal the Court of Appeal is confined to matters of law; findings of fact by the two courts below based on credible evidence are not for it.
- An adverse inference from the prosecution's failure to call a witness arises only where that witness is material and the evidence actually called is barely adequate; where credible eyewitnesses identified the assailants, the omission of another witness does not taint the prosecution case.
- An appellant who, in the absence of his advocate, tells the appellate court that he is ready to proceed cannot later contend that the hearing deprived him of the constitutional right to be represented by counsel of his choice.
- Credibility findings of the trial court and first appellate court on eyewitness evidence containing nothing inherently improbable are binding on a second appellate court.
Court orders
#- 1.The appeals as regards conviction be and are hereby dismissed.
- 2.The sentence of five years imprisonment imposed on each appellant upheld - the Court cannot interfere with it.
- 3.The consolidated appeals dismissed in toto.
- On appeal from
- High Court (first appeal heard by a Commissioner of Assize)
- Jurisdiction invoked
- No constitutional or statutory provision is cited in the judgment; the Court proceeds on its second-appellate criminal jurisdiction, recording only that 'these are second appeals and the Court can deal only with matters of law'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lazarus Wanjala Musubili & another v Republic [2005] KECA 130 (KLR)", Case Analysis (2005). Criminal Appeal 27 & 28 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/130/eng@2005-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.