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Court of AppealPartially AllowedCriminal Appeal 372 of 2006· [2008] KECA 270 (KLR)

KATANA KARISA & 4 OTHERS v REPUBLIC [2008] KECA 270 (KLR)

Court of Appeal of Kenya
25 January 2008
ROR. S. C. OmoloEOE. O. O'KubasuEGE. M. Githinji
2,846 words in judgment
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The bottom line

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Kenya's Court of Appeal freed one woman and reduced four murder convictions to manslaughter, ruling that fear of witchcraft can legally provoke a killing.

What this practically means

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Executive summary

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Five appellants were convicted of the murder of Charo Kadenge Chogo, an 80-year-old blind man, and each sentenced to death by the High Court at Malindi (Ouko, J). The 2nd appellant, the 1st appellant's wife, appealed the whole conviction; the others contended the evidence disclosed manslaughter rather than murder. The Court of Appeal (Omolo, O'Kubasu and Githinji, JJA) allowed the appeals in part. The 2nd appellant's conviction was quashed in its entirety because the trial Judge's finding that she brought the fire was unsupported by evidence, a material witness did not place her at the scene, and unconsidered contradictions cast doubt on the key witness's account of her role; the prosecution had not proved a common intention to kill beyond reasonable doubt. The remaining appellants argued the trial court should have heard them in mitigation under section 323 of the Criminal Procedure Code and, on that basis, substituted manslaughter for murder. The Court rejected that construction: section 323 mitigation concerns only personal extenuating circumstances, and a trial court, once convicting, becomes functus officio, its conviction alterable only on appeal. However, the Court found the trial Judge misdirected himself by failing to inquire into the circumstances suggesting the deceased had caused the 1st appellant's son's death through witchcraft, which could amount to legal provocation, and by failing to direct the assessors accordingly. The conviction for murder was set aside and a conviction for manslaughter substituted, with each of the four appellants sentenced to 20 years imprisonment from the date of the original conviction.

Key legal issues

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01

Sufficiency of evidence against the 2nd appellant

Holding

The prosecution failed to prove beyond reasonable doubt that the 2nd appellant formed a common intention to kill or cause grievous harm; she was entitled to the benefit of doubt and her conviction was quashed

Reasoning

The finding that she brought the fire used to burn the deceased was unsupported; a material witness did not see her at the scene; contradictions in the key witness's evidence concerning moonlight and how the witness came to the scene were not considered by the trial Judge. She did not personally strike, cut, torture or drag the deceased.

p. 3
02

Effect of omission to call for mitigation under section 323 CPC

Holding

The omission did not invalidate the proceedings; section 323 mitigation concerns personal extenuating circumstances relevant to sentence, not the nature of the conviction

Reasoning

The section expressly preserves the validity of proceedings notwithstanding the omission. Counsel's contention that mitigation could lead a trial court to alter the conviction to a lesser offence was rejected as an erroneous construction; that function belongs to an appellate court.

p. 4
03

Alternative verdict of manslaughter and provocation arising from belief in witchcraft

Holding

The trial Judge misdirected himself in failing to inquire into the circumstances suggesting the deceased had bewitched the 1st appellant's son and in failing to direct the assessors appropriately; the benefit of doubt was given and murder was substituted with manslaughter

Reasoning

The circumstances - the prior death of the 1st appellant's son, the ritual at his grave conducted openly before a witness, and statements that the deceased would be forgiven if their son Kadenge were availed - showed suspicion of witchcraft that should have put the trial Judge on inquiry. Following R v Sharmpal Singh, the judge must deal with alternatives emerging from the evidence even if not raised by the defence.

p. 5

Legal principles established

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  • Once a trial court convicts an accused person of a specific offence it becomes functus officio; only an appellate court can alter the conviction, and mitigation under section 323 CPC relates only to personal extenuating circumstances bearing on sentence
  • Omission to invite a convicted person to say why sentence should not be passed does not affect the validity of the proceedings, as expressly provided by section 323 CPC
  • A trial judge must deal with alternative verdicts such as manslaughter if they emerge from the evidence even where the defence does not put them forward, and a belief that the deceased caused a death through witchcraft, taken with surrounding circumstances, may amount to legal provocation requiring full inquiry and proper direction to assessors

Court orders

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  1. 1.Appeal of the 2nd appellant, Kang'ombe Katana, allowed in its entirety; conviction for murder quashed and sentence of death set aside; she to be released forthwith unless otherwise lawfully held
  2. 2.Appeal of the 1st, 3rd, 4th and 5th appellants allowed to the extent that the conviction for murder is set aside and a conviction for manslaughter contrary to section 202(1) as read with section 205 of the Penal Code substituted
  3. 3.Each of the 1st, 3rd, 4th and 5th appellants sentenced to 20 years imprisonment to run from the date of conviction by the superior court (12.5.2006)

Authorities

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Legislation

  • Penal Codesections 203 and 204
  • Penal Codesection 202(1) as read with section 205
  • Criminal Procedure Code (Cap 75)section 323

Cases cited (3)

  • R v Sharmpal Singh s/o Pritam Singh
    [1962] EA 13
  • Mancini v D.P.P.
    [1942] AC 1
  • Patrick Tuva Mwarengu v Republic
    Mombasa Criminal Appeal No. 272 of 2006 (unreported)
On appeal from
High Court of Kenya, Malindi
H.C. Cr. Case No. 14 of 2005
Jurisdiction invoked
First appellate appeal against conviction and sentence under the Criminal Procedure Code

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "KATANA KARISA & 4 OTHERS v REPUBLIC [2008] KECA 270 (KLR)", Case Analysis (2008). Criminal Appeal 372 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/270/eng@2008-01-25

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