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Court of AppealPartially AllowedCriminal Appeal 36 of 2008

Adbulhakim Mohamed Hassan Hussein v Republic [2009] KECA 43 (KLR)

Court of Appeal of Kenya
20 November 2009
2,915 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 a murder conviction and death sentence with manslaughter and eight years, ruling the killing happened during a fight without proven intent to kill.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Githinji, Aganyanya and Nyamu, JJA) heard this first appeal against a conviction and sentence of death for murder imposed by Ombija, J. on 26th March 2008 in H.C.Cr.C. No. 196 of 2003. The prosecution case rested on PW1, the sole identifying witness, who saw the appellant shout at a mob that had accosted the deceased, after which the appellant and the deceased fought in the middle of the road at Ushirkia Estate on 1st April 2003. The deceased died the following day of head injury from blunt trauma. The trial judge, disagreeing with the unanimous verdict of not guilty returned by the assessors, convicted the appellant of murder. On appeal, counsel attacked the identification evidence, the failure to call the taximan and the Asian man, and the delay in arraignment. The Court, exercising its duty under section 361 of the Criminal Procedure Code to re-evaluate the evidence, held that PW1's evidence was one of recognition rather than identification since the appellant was known to him, and that the trial judge's credibility findings could not be disturbed. However, the Court found malice aforethought was not proved; the evidence established only that the deceased died from injuries sustained in a fight. The Court allowed the appeal in part, setting aside the murder conviction and death sentence and substituting a conviction for manslaughter under section 202 as read with section 205 of the Penal Code, with a sentence of eight years imprisonment from the date of conviction. Judgment delivered on 20th November 2009.

Questions the Court framed

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

  1. 1.Whether the superior court properly evaluated the identification and recognition evidence of PW1, the sole identifying witness
  2. 2.Whether the prosecution proved the offence of murder with malice aforethought beyond reasonable doubt
  3. 3.Whether the appellant's constitutional rights were breached by delay in presenting him for plea
  4. 4.Whether the appellant's alibi defence was adequately considered by the trial court

Key legal issues

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01

Identification and recognition by a sole witness at night

Holding

PW1's evidence was one of recognition rather than identification since the appellant was a known customer and friend; the trial judge accepted this credible evidence, and the appellate court would not disturb findings based on credibility.

Reasoning

PW1 knew both the deceased and the appellant as customers and friends, elevating the evidence to recognition. Although the offence occurred at night, PW1 stood under a security light at an electric post from where he observed the events. Following Libambula v R and Ogeto v Republic, the Court tested the recognition evidence with care but found the circumstances sufficient. Credibility findings by the trial judge could not be interfered with absent error of principle.

p. 4
02

Whether murder was proved or only manslaughter

Holding

Malice aforethought was not established; the deceased died from injuries sustained in a fight, warranting conviction for manslaughter rather than murder.

Reasoning

The Court accepted that PW1's credible evidence established that the appellant and the deceased fought in the middle of the road and that the deceased died of head injury from blunt trauma per the postmortem. However, the Court agreed with State Counsel that the evidence established only manslaughter, not murder with malice aforethought, and substituted the appropriate conviction and sentence accordingly.

p. 5
03

Alleged constitutional breach from delay in arraignment

Holding

The complaint was not pursued: the appellant was represented by counsel from his first appearance who raised no constitutional issue.

Reasoning

Although the appellant was arrested on 5th April 2003 and not presented for plea until 14th October 2003, counsel appearing for him from the first appearance raised no issue of constitutional breach. The Court declined to say more on the complaint, effectively dismissing that ground without detailed analysis.

p. 4

Legal principles established

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  • A first appellate court must re-evaluate and reconsider the evidence adduced in the superior court and make its own conclusions, bearing in mind it did not see or hear the witnesses.
  • Evidence of voice identification is receivable and admissible and can carry as much weight as visual identification, provided the witness was familiar with the voice and conditions excluded mistake.
  • A fact may be proved by the evidence of a single witness, but the identification evidence of such a witness must be tested with the greatest care, especially in difficult conditions.
  • An appellate court cannot interfere with findings of the lower court based on the credibility of witnesses unless no reasonable tribunal could make such findings or the trial court erred or acted on wrong principles.

Court orders

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  1. 1.Set aside the appellant's conviction and sentence on the offence of murder contrary to section 203 as read with section 204 of the Penal Code
  2. 2.Substitute a conviction for manslaughter contrary to section 202 as read with section 205 of the Penal Code
  3. 3.Set aside the death sentence and substitute a sentence of 8 years imprisonment from the date of conviction

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.Cr.C. No. 196 of 2003
Jurisdiction invoked
First appeal under section 361 of the Criminal Procedure Code

Relief refused

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Outright acquittal of the appellant

The Court found the evidence overwhelming on manslaughter, as the deceased died from injuries sustained in a fight with the appellant

p. 5

Costs

No costs order recorded 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 would set aside the appellant's conviction and sentence on the offence of murder contrary to section 203 as read with section 204 of the Penal Code and substitute therefor one of manslaughter contrary to section 202 as read with section 205 of the Penal Code.
p. 5Final orders - substitution of conviction
While setting aside the death sentence we substitute it with a sentence of 8 years imprisonment from the date of conviction.
p. 5Final orders - sentence
Normally, evidence of voice identification is receivable and admissible in evidence and it can, depending on the circumstances, carry as much weight as visual identification.
p. 4Voice identification
Further the court has to bear in mind that it is possible for a witness to be honest but to be mistaken.
p. 4Single identifying witness

Issues in the judgment

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minor

The trial judgment as quoted refers to the murder charge as section 203 read with section 204 of the Penal Code, while the charge as described earlier in the judgment was under section 203 as read with section 205

minor

The trial judgment quotes the Asian occupant as House No. 257 while the narrative earlier records House No. 287

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Adbulhakim Mohamed Hassan Hussein v Republic [2009] KECA 43 (KLR)", Case Analysis (2009). Criminal Appeal 36 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/43/eng@2009-11-20

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