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Court of AppealAllowedCriminal Appeal 77 of 2006· [2006] KECA 339 (KLR)

Anthony Njue Njeru v Republic

Court of Appeal of Kenya
14 July 2006
SBS.E.O. BosireEOE.O. O'KubasuJOJ.W. Onyango Otieno
4,965 words in judgment
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The bottom line

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Kenya's Court of Appeal freed a police officer convicted of manslaughter, ruling the prosecution failed to prove the shooting was unjustified.

What this practically means

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Executive summary

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The appellant, a police constable lawfully armed with a pistol while on duty, was convicted of manslaughter by Onyancha, J after being acquitted of murder, and sentenced to three years' imprisonment. The charge arose from the shooting death of a University of Nairobi student during an anti-drug operation at Chiromo, where the appellant, having arrested two suspects for possession of bhang, entered a thicket in pursuit of alleged drug peddlers and was confronted by about ten armed men. He fired two warning shots; nine men fled but the deceased, armed with a knife, advanced and injured the appellant's hand before being fatally shot in the chest. On appeal, the twelve grounds reduced to one: the trial judge erred in convicting when the only person who testified to how the deceased died was the appellant. The Court of Appeal, as a first appellate court, re-evaluated the evidence applying Okeno v R and Chemagong v Republic. It found no eye-witness to the shooting except the appellant, whose consistent account was never shown to be false, and noted that senior police officers, including the DCIO, considered the shooting justified. The court set out the law on justifiable homicide, self-defence under section 17 of the Penal Code as informed by Palmer v Reginam, and section 28 of the Police Act and the Police Manual on police use of firearms. The court expressed anxiety at the judge's no-case-to-answer ruling, in which he described the evidence as hearsay yet still put the appellant on his defence; applying Bhatt, it held no prima facie case existed and criticised reasoned rulings at the close of the prosecution case. The appeal was allowed, the conviction quashed and the sentence set aside, with the appellant to be set free forthwith.

Key legal issues

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01

Whether the appellant's use of the firearm was justified

Holding

The shooting occurred as explained by the appellant, was not shown to be a lie, and senior police officers considered it justified; the conviction was unsafe.

Reasoning

There was no eye-witness to the shooting except the appellant, whose consistent account to superiors, police statement and unsworn statement was never shown to be false. The deceased advanced on the armed officer with a knife and injured him. The DCIO himself testified the shooting was justified. The court found the conviction unsafe and quashed it.

p. 3
02

Whether a prima facie case existed to put the appellant on his defence

Holding

No prima facie case was made out; the appellant should not have been called upon to defend himself as all the evidence was already on record.

Reasoning

The trial judge had himself ruled that the evidence explaining the shooting was hearsay, yet still put the appellant on his defence. Applying Bhatt, a prima facie case must be one on which a reasonable tribunal could convict if no explanation is offered. The judge effectively required the appellant to fill gaps in the prosecution case.

p. 5
03

Circumstances in which a police officer may lawfully use a firearm

Holding

Section 28 of the Police Act and the Kenya Police Manual 1980 set out the circumstances in which a police officer is justified in using a firearm, including to protect life and to effect arrest where in danger of grievous harm.

Reasoning

Because the appellant was a police officer on duty and lawfully armed, the court examined s.28 of the Police Act and Chapter 11 of the Police Manual, which permit use of arms where the officer reasonably believes he or another is in danger of grievous bodily harm or cannot otherwise effect an arrest.

p. 4

Legal principles established

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  • A killing is justified only where the accused's action was in the course of averting a felonious attack and no greater force than necessary was applied; the accused must show immediate peril and reasonable force on a balance of probabilities.
  • A prima facie case is one on which a reasonable tribunal, properly directing itself to law and evidence, could convict if no explanation is offered by the defence; a mere scintilla or discredited evidence is never enough.
  • It is undesirable for a trial judge to give a reasoned ruling at the close of the prosecution case unless the court is acquitting the accused.
  • An appellate court will not interfere with a finding of fact unless it is based on no evidence, a misapprehension of the evidence, or wrong principles.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The conviction is quashed
  3. 3.The sentence is set aside
  4. 4.The appellant is to be set free forthwith unless otherwise lawfully held

Authorities

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Legislation

  • Penal Codesection 203 as read with section 204
  • Penal Codesection 17
  • Police Act (Cap. 84 Laws of Kenya)section 28
  • Kenya Police Manual of 1980Chapter 11 - use of Force and Firearms by Police

Cases cited (4)

  • OKENO V. R.
    [1972] E.A. 32

    Duty of a first appellate court to re-evaluate evidence, bearing in mind it did not see or hear witnesses.

  • CHEMAGONG V. REPUBLIC
    [1984] KLR 611

    Appellate court will not interfere with findings of fact unless based on no evidence, misapprehension or wrong principles.

  • PALMER V. REGINAM
    [1971] 1 ALL E.R. 1077

    Self-defence: a man may do only what is reasonably necessary; everything depends on the facts and proportionality.

  • RAMANLAL TRAMBAKLAL BHATT V R
    [1957] E.A. 332

    Meaning of a prima facie case in criminal trials; mere scintilla or discredited evidence is not enough.

On appeal from
High Court of Kenya at Nairobi
H.C.CR.C. NO. 69 OF 2002
Jurisdiction invoked
First appeal to the Court of Appeal against conviction and sentence (criminal appellate jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Anthony Njue Njeru v Republic", Case Analysis (2006). Criminal Appeal 77 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/339/eng@2006-07-14

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