KARISA WARA v REPUBLIC [2007] KECA 415 (KLR)
The bottom line
#Kenya's Court of Appeal replaced a murder conviction and death sentence with manslaughter and 10 years because the trial judge ignored evidence that the accused was drunk.
What this practically means
#Executive summary
#Key legal issues
#Admissibility and sufficiency of the deceased's statement as a dying declaration
The deceased's statements identifying the appellant to P.W.6 and the assistant chief were admissible as a dying declaration under section 33(a) of the Evidence Act and, being corroborated by the appellant's presence at the scene, sufficed despite the hearsay complaint.
The court held that the statements made by the deceased shortly before he died were not inadmissible hearsay but a dying declaration admissible under section 33(a) of the Evidence Act. Such a declaration required corroboration, which was found in the appellant's admitted presence at the scene where both Charo and the deceased were stabbed. The night conditions and alleged single-witness complaints did not displace this, as all three witnesses saw the appellant.
Effect of the trial judge disagreeing with the unanimous verdict of assessors and omission on intoxication
Although the judge could disagree with the assessors, his total failure to direct himself and the assessors on drunkenness under section 13(4) of the Penal Code led the court to substitute manslaughter for murder, as done in the Kimunzu case.
The court noted the stabbing occurred at a drinking den and, following its judgment delivered the same day in Said Karisa Kimunzu v Republic, held that the trial judge's total failure to direct the assessors and himself on drunkenness or intoxication under section 13(4) of the Penal Code meant malice aforethought was not properly established, warranting substitution of manslaughter for murder.
Non-examination of the knife exhibit and failure to call the investigating officer
Both complaints failed: there was no evidence the knife bore blood-stains so examination was pointless, and a colleague of the investigating officer testified fully, so no prejudice arose.
The court found there was no evidence the knife had blood-stains when handed to James, so no useful purpose would have been served by examination. As to the investigating officer, Police Constable Metto, who was present throughout with Pc Nyambati, testified on the investigations, and neither counsel nor the appellant indicated what different evidence Nyambate would have given.
Legal principles established
#- A trial judge must afford an accused convicted of an offence carrying a mandatory death sentence the right to move in arrest of judgment or make submissions before sentence, rather than imposing sentence straightaway in the judgment
- Evidence of statements by a deceased identifying his assailant shortly before death is admissible as a dying declaration under section 33(a) of the Evidence Act and requires corroboration
- Failure to subject a recovered weapon to forensic examination is not fatal where there is no evidence it bore blood-stains and examination would serve no useful purpose
- Intoxication under section 13(4) of the Penal Code may negate malice aforethought in murder, reducing liability to manslaughter
Court orders
#- 1.Appeal allowed to the extent that the conviction for murder under section 203 of the Penal Code is set aside and substituted with a conviction of manslaughter contrary to section 202 of the Penal Code
- 2.Sentence of death imposed under section 204 of the Penal Code set aside and substituted with ten (10) years imprisonment to run from the date of conviction and sentence by the superior court
- On appeal from
- High Court of Kenya at Malindi
- null
- Jurisdiction invoked
- First appellate appeal to the Court of Appeal under the Criminal Procedure Code against conviction and sentence for murder
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kanyake v Republic (Criminal Appeal 48 of 2019) [2025] KECA 1102 (KLR)[2025] KECA 1102 (KLR)20 Jun 2025
- Juma v Republic (Criminal Appeal 107 of 2014) [2016] KECA 162 (KLR)[2016] KECA 162 (KLR)22 Apr 2016applied
Cite this brief
#Cite this brief
Caselaw, "KARISA WARA v REPUBLIC [2007] KECA 415 (KLR)", Case Analysis (2007). Criminal Appeal 267 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/415/eng@2007-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.