Edusei Asili Malema v Republic
The bottom line
#Kenya's Court of Appeal confirmed a six-year manslaughter sentence, ruling that a witness's evidence cannot be ignored just because a party dislikes it.
What this practically means
#Executive summary
#Key legal issues
#Procedure for declaring a witness hostile
The prosecutor did not seek leave to treat Faith as hostile or to cross-examine her to impeach her credit; her evidence therefore had to be evaluated with the rest of the evidence. The correct procedure was, however, followed for Nelson.
Sections 161 and 163(1)(c) of the Evidence Act govern impeachment of a witness called by one's own party. Leave of the court is required, former inconsistent statements must be proved and put to the witness, and the witness must be given an opportunity to explain. Faith's credit was never impeached, so her evidence favouring the accused could not be disregarded; the trial Judge erred in failing to evaluate it.
Evaluation of evidence of a hostile witness
Evidence of a hostile witness must be evaluated, particularly where it tends to favour the accused, though it need not necessarily be acted upon.
Relying on Maghenda v Republic, the Court held the trial Judge erred in law by failing to evaluate Faith's evidence, which tended to support the appellant's case. As a first appellate court, the Court undertook its own re-evaluation of Faith's evidence and the entire evidence to reach an independent conclusion, but ultimately found the prosecution case credible.
Credibility findings and the first appellate court's duty
The trial Judge's finding that Annah was truthful and that the robbery story was a cover-up was supported by evidence and could not be disturbed on appeal.
The Court enumerated surrounding circumstances supporting the investigating officer's conclusion that no robbery occurred: neighbours heard no commotion, no help was sought, the appellant and his wife were uninjured and nothing stolen, neither saw the alleged robbers assault the deceased, the deceased was apparently already dead when carried away, and the appellant gave inconsistent versions of how the deceased was injured.
Trial with the aid of assessors
The complaint about the composition of the assessors was immaterial because manslaughter is triable without assessors.
Although the appellant was charged with murder, triable with assessors, the trial Judge found him guilty of the lesser offence of manslaughter under section 205 of the Penal Code, which is triable without the aid of assessors. Any irregularity in the assessors' participation or their opinion therefore could not vitiate the conviction for manslaughter.
Legal principles established
#- A first appellate court cannot interfere with a trial judge's finding based on the credibility of a witness unless there was absolutely no evidence to support the finding or no reasonable tribunal properly directing itself would make those findings.
- Where a witness is not declared hostile and their credit not impeached, their evidence cannot be merely disregarded; it must be evaluated together with the other evidence.
- The proper procedure for impeaching a witness called by one's own party is to apply for leave to treat the witness as hostile, prove and put in the former inconsistent statements, and give the witness an opportunity to explain the alleged inconsistencies.
- The effect of declaring a witness hostile is to render the witness's entire evidence untrustworthy, not only some parts of it.
Court orders
#- 1.Appeal against conviction and sentence dismissed in its entirety
- On appeal from
- High Court of Kenya at Busia
- H.C.CR.C. No. 5 of 2003
- Jurisdiction invoked
- First appellate jurisdiction over conviction and sentence of the High Court (Criminal Appeal 296 of 2006)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Edusei Asili Malema v Republic", Case Analysis (2007). Criminal Appeal 296 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/513/eng@2007-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.