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Court of AppealPartially AllowedCriminal Appeal No. 118 of 2007

Protus Madakwa & 2 others v Republic [2008] KECA 29 (KLR)

Court of Appeal
19 December 2008
1,654 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal replaced three death sentences with 10-year manslaughter terms, ruling that represented accused persons lose the right to complain about delayed court appearances if their lawyers stay silent.

What this practically means

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Executive summary

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The three appellants were convicted of the murder of Benard Wirage Magale by Rawal, J on 28 November 2005 and sentenced to death. On appeal to the Court of Appeal at Nairobi (Omolo, Githinji and Aluoch, JJ.A), two principal issues arose. First, the appellants contended they were brought to court some 120 days after arrest in breach of the constitutional requirement to be tried within fourteen days, rendering the prosecution a nullity. The Court, following its recent decision in James Githui Waithaka, held that because the appellants were represented by counsel throughout the trial and that counsel never raised the issue before the trial judge - the High Court being itself the constitutional court - the appellants had waived the right to complain of the violation, and the explanation for the delay became irrelevant. Secondly, on the murder conviction, the Court found that the trial judge failed to direct herself and the assessors on the possibility that the deceased was the aggressor in a fight over a woman, and on the effect of alcohol consumption on the appellants' capacity to form the specific intent to cause death under section 13(4) of the Penal Code. Giving the appellants the benefit of the doubt, the Court allowed the appeals in part: it set aside the murder convictions and death sentences and substituted convictions for manslaughter under section 202 of the Penal Code, sentencing each appellant to ten years imprisonment running from the date of the original conviction and sentence. The judgment binds lower courts on waiver of constitutional rights by represented accused persons.

Questions the Court framed

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

  1. 1.Whether the appellants waived their constitutional right to be brought to court within fourteen days of arrest where they were represented by counsel who did not raise the issue at trial
  2. 2.Whether the trial judge properly directed herself and the assessors on the possibility that the deceased was the aggressor and on the effect of alcohol on the appellants' capacity to form the specific intent to cause death
  3. 3.Whether the conviction for murder should stand or be reduced to manslaughter

Key legal issues

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01

Waiver of the constitutional right to be brought to court within fourteen days

Holding

Counsel-represented appellants who did not raise the section 72(3) violation at trial waived the right and cannot raise it on appeal

Reasoning

Following James Githui Waithaka, the Court held that the High Court is the constitutional court; counsel present throughout the trial could have raised the violation before Rawal, J. An information does not disclose the date of arrest so the judge cannot be expected to notice it, but counsel must raise it. Different considerations apply to unrepresented accused.

p. 2
02

Misdirection on specific intent for murder

Holding

The trial judge erred in failing to direct herself and the assessors on the possibility the deceased was the aggressor and on the effect of liquor on the appellants' capacity to form specific intent under section 13(4) of the Penal Code

Reasoning

The evidence suggested a fight over a woman in which the deceased may have been the aggressor, and the parties had been drinking. Without directions on these matters the Court could not tell whether the assessors and judge would still have found murder. The benefit of doubt was given, warranting substitution of manslaughter.

p. 3
03

Sufficiency of identification and participation evidence

Holding

The Court was satisfied on the recorded evidence that the three appellants participated in the attack and caused the death, upholding the factual finding of participation

Reasoning

Two eyewitnesses who knew the appellants saw them join the fight at about 7.00 p.m. under electricity light. Nothing on the record suggested the judge and assessors were mistaken, so the finding of participation stood even as the murder conviction was varied.

p. 3

Legal principles established

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  • An accused person represented by counsel who fails to raise the alleged violation of the right to be brought to court within the constitutionally prescribed time at trial waives the right to complain of that violation on appeal
  • Where a trial judge fails to direct herself and assessors on provocation-like issues (possible aggression by the deceased) and on the effect of liquor on capacity to form specific intent, the conviction for murder may be reduced to manslaughter

Court orders

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  1. 1.Conviction for murder and sentence of death set aside
  2. 2.Substituted with a conviction for manslaughter under section 202 of the Penal Code
  3. 3.Each appellant sentenced to ten (10) years imprisonment to run from the date of conviction and sentence by Rawal, J

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
H.C.Cr.C. No. 47 of 2004
Jurisdiction invoked
First appeal to the Court of Appeal against conviction and sentence for murder (Constitution section 72(3) issue; Penal Code sections 203, 204, 202, 205)

Relief refused

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Complete acquittal / nullification of the prosecution for the constitutional violation of being brought to court after 120 days

The appellants, having been represented by counsel throughout the trial who did not raise the issue, waived the right to complain of the violation

p. 2

Costs

No costs order was made 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.

we allow these appeals to the extent that we set aside the conviction for murder and the sentence of death imposed thereon and substitute them with a conviction for manslaughter under section 202 of the Penal Code
p. 3Final orders - substitution of manslaughter conviction
under section 205 of the Code we sentence each appellant to ten (10) years imprisonment to run from the date when they were convicted and sentenced by Rawal, J
p. 3Sentence
the appellant whom the advocate represents must be taken to have waived his or her right to complain about alleged violations of his or her constitutional rights before being brought to court
p. 2Waiver of constitutional rights by represented accused

Issues in the judgment

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minor

The judgment refers to the appellants' trial counsel as both 'Mr. Kariuki' and 'Mr. Mwangi' in different passages

minor

Coram signatures omit initials expansion; appellant names spelled inconsistently ('PROTUS MADAKWA' in title vs 'Protas Madakwa' in body)

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, "Protus Madakwa & 2 others v Republic [2008] KECA 29 (KLR)", Case Analysis (2008). Criminal Appeal No. 118 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/29/eng@2008-12-19

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