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Court of AppealDismissedCriminal Appeal 111 of 2004

LUCIANA JUMA FARJALA v REPUBLIC [2007] KECA 265 (KLR)

Court of Appeal of Kenya
20 July 2007
SBS.E.O. BosireJOJ.W. Onyango OtienoWDW.S. Deverell
2,239 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that being drunk is not a defence to murder if you were still capable of knowing and controlling what you were doing.

What this practically means

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Executive summary

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The Court of Appeal at Malindi (Bosire, Onyango Otieno and Deverell, JJA) dismissed in its entirety the appellant's first appeal against his conviction for the murder of Mohamed Shamash and the mandatory death sentence imposed by Khaminwa, J of the High Court at Mombasa on 23rd June 2004. The appellant, a driver employed to take the deceased, a schoolboy, to school, was convicted on strong circumstantial evidence: he was the last person seen with the deceased, who was found strangled in the employer's abandoned car; the appellant lied about the vehicle's whereabouts, fled to Nairobi the same day, and made extrajudicial statements admitting the killing. On appeal, counsel did not challenge the identity of the killer but relied on the defence of drunkenness, contending the appellant was too intoxicated to know what he was doing. The court held that under section 12(2) of the Penal Code, self-induced intoxication is no defence absent either intoxication caused by another's malicious or negligent act without consent, or temporary insanity; and under section 12(4) the question is whether the specific intention was formed, a question of fact. The court found the appellant exercised control over the vehicle, concealed his acts and fled, demonstrating he knew what he was doing. It further held that under section 111(1) of the Evidence Act the appellant bore a statutory duty to offer a reasonable explanation of the death, which he failed to do. Although the trial Judge had improperly incorporated unamended summing-up notes into her judgment, the court found no prejudice to the appellant and no basis for interfering with the conviction.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the defence of drunkenness (intoxication) under sections 12(2) and 12(4) of the Penal Code was available to the appellant and negatived the mens rea for murder
  2. 2.Whether the appellant formed the necessary specific intention to kill notwithstanding any intoxication
  3. 3.Whether the appellant discharged the statutory duty of offering a reasonable explanation of the death under section 111(1) of the Evidence Act
  4. 4.Whether the trial Judge's incorporation of unamended summing-up notes into the judgment prejudiced the appellant

Key legal issues

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01

Availability and scope of the defence of drunkenness under section 12 of the Penal Code

Holding

The defence fails where the accused relies merely on intoxication without showing it was caused by another's malicious or negligent act without consent, or that it produced temporary insanity; section 12(2) therefore did not avail the appellant.

Reasoning

The court set out the two statutory pre-conditions for the defence of intoxication. The appellant only asserted drunkenness without establishing either pre-condition. The court then turned to section 12(4), under which intoxication is relevant only to whether the specific intention was formed, a question of fact assessed on the evidence, including the accused's conduct before, during and after the killing.

p. 3
02

Whether the appellant formed the specific intention to kill despite intoxication

Holding

The circumstances showed the appellant was in full control of his mental faculties and capable of forming the specific intention: he drove with control, returned the keys, and took steps to conceal the act.

Reasoning

The court inferred from the appellant's ability to drive the vehicle without accident, return the keys, and react to searching questions that he exercised proper control and discretion. His flight to Nairobi and concealment of the body and vehicle showed he knew what he was doing. His explanation of provocation was rejected as unreasonable and untested in cross-examination.

p. 3
03

Evidentiary burden on an accused where the cause of death is peculiarly within his knowledge

Holding

While the prosecution bears the burden of proving guilt beyond reasonable doubt, an accused has a statutory duty under section 111(1) of the Evidence Act to offer a reasonable explanation of facts peculiarly within his knowledge.

Reasoning

The court acknowledged the appellant's contention that the burden lay throughout on the prosecution, but held that section 111(1) of the Evidence Act imposed on the appellant a duty to explain how the deceased met his death, since that fact was peculiarly within his knowledge. His explanation was found unreasonable and unsupported by cross-examination of PW1 and PW2.

p. 4
04

Trial Judge's incorporation of summing-up notes into the judgment without amendment

Holding

Although the trial Judge improperly supplanting parts of her summing-up notes into the judgment without amendment was an error, the appellant suffered no prejudice and the conviction remained sound.

Reasoning

The court noticed that the trial Judge had transplanted portions of her directions to assessors, including contradictory statements about the two extrajudicial statements, into her judgment without amendment. However, since the contradictory statements referred to the inquiry and caution statements, and the conviction would be sound even ignoring those statements entirely, there was no basis for interference.

p. 4

Legal principles established

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  • On a first appeal, the Court of Appeal is obliged to re-evaluate the evidence and reach its own conclusions while giving due weight to the trial court's advantage of seeing and hearing the witnesses.
  • Self-induced intoxication is not a defence unless the intoxication was caused by the malicious or negligent act of another without consent, or rendered the accused temporarily insane; otherwise intoxication goes only to whether the specific intention was formed.
  • Whether an accused, though intoxicated, formed the necessary intention is a question of fact determined on the circumstances, including concealment of the act and exercise of control and discretion.

Court orders

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  1. 1.The appellant's appeal is dismissed in its entirety, upholding the conviction and the mandatory death sentence for murder

The bench

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One judgment of the whole court — no separate or dissenting opinions.

SB
majority
JO
majority
WD
majority
On appeal from
High Court of Kenya at Mombasa
H.C. CR.C. No. 6 of 2000
Jurisdiction invoked
First appeal to the Court of Appeal against conviction and sentence under the Criminal Procedure Code (appeal from High Court murder conviction and mandatory death sentence)

Relief refused

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Appeal against conviction and sentence

The court found the appellant was capable of forming the specific intention to kill despite intoxication; his explanation was unreasonable and untested in cross-examination, and the unamended judgment caused no prejudice

p. 4

Costs

No costs order appears in the judgment.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the result we dismiss the appellant's appeal in its entirely.
p. 4Final orders - dismissal of appeal
This being a first appeal we are obliged to re-evaluate the evidence, analyse it and come to our own conclusions, without of course overlooking the conclusions of the trial court
p. 1Duty of a first appellate court
Clearly, the circumstances show the appellant, inspite of any intoxication, was capable of forming the specific intention of killing a person.
p. 3Intoxication and specific intent
It is a duty placed upon him by statute to wit section 111 (1) of the Evidence Act, Cap 80 Laws of Kenya.
p. 4Accused's statutory duty to explain facts within his knowledge
We do not however think the appellant was thereby prejudiced.
p. 4Effect of trial Judge's unamended summing-up notes in judgment

Issues in the judgment

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minor

The appellant's name is spelt inconsistently in the judgment: the cause title reads 'LUCIANA JUMA FARJALA' while the body begins 'Luciano Juma Farjala, the appellant'.

minor

The judgment makes no order as to costs and does not record whether the sentence was confirmed in terms, merely dismissing the appeal.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "LUCIANA JUMA FARJALA v REPUBLIC [2007] KECA 265 (KLR)", Case Analysis (2007). Criminal Appeal 111 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/265/eng@2007-07-20

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