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Court of AppealDismissedCriminal Appeal 169 of 2006· [2009] KECA 405 (KLR)

Thomas Sangare Kelolon v Republic [2009] KECA 405 (KLR)

Court of Appeal of Kenya
16 January 2009
ROR. S. C. OmoloEGE. M. GithinjiPWP. N. Waki
3,649 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a murder appeal, ruling that accused people who never raise constitutional violations at trial cannot raise them later on appeal.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Omolo, Githinji and Waki JJ.A) unanimously dismissed the appellant's appeal against conviction for murder and the death sentence imposed by Bauni J of the High Court at Kisii on 4th May 2006. The appellant, a police officer, shot dead Michael Onyango Apati, a clinic operator, at Ntimaru Trading Centre on 14th July 2003 after demanding money from him; the sole eyewitness was the deceased's wife, Nelly Akinyi. On the constitutional ground, the Court, applying its recent decisions in James Githui Wathiaka and Protus Madakwa, held that an accused represented by counsel throughout a High Court trial waives the right to complain on appeal of detention beyond fourteen days contrary to section 72(3) of the Constitution where counsel never raised the issue before the trial judge, the High Court being the constitutional court. On the evidence, the Court rejected the submission that the wife of the deceased was not an independent witness whose evidence required corroboration, holding that relatives of victims are competent witnesses. The Court found malice aforethought established under section 206(b) of the Penal Code because a person who cold-bloodedly shoots another in the neck must be taken to intend death or grievous harm. The trial judge's speculative remarks about motive were held harmless, motive being irrelevant under section 9(3) of the Penal Code, and the continuation of the trial before two assessors after one was dispensed with caused no injustice and was curable under section 302 of the Criminal Procedure Code. The conviction and death sentence were affirmed; no costs order appears in the judgment.

Key legal issues

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01

Waiver of constitutional rights where counsel was present

Holding

The appellant could not obtain an acquittal merely because he was detained more than fourteen days before arraignment, since his advocates never raised the issue before the trial judge.

Reasoning

Following its recent decisions in James Githui Wathiaka and Protus Madakwa, the Court held that the High Court is the constitutional court; counsel present throughout a long trial never raised the section 72(3) violation, so the appellant must be taken to have waived the right. Different considerations apply to unrepresented accused.

p. 3
02

Evidence of an interested witness

Holding

A witness is not discredited merely because she is the wife of the deceased; her evidence required no corroboration and the trial judge was entitled to believe her.

Reasoning

Nelly was the only eyewitness in the clinic; no one suggested to her in cross-examination that the demand for money was fabricated. Rejecting relatives' evidence would mean no convictions where only family members witness night attacks on a family. The judge who saw and heard her believed her, and the ballistic evidence ruled out accidental discharge.

p. 4
03

Malice aforethought

Holding

Cold-bloodedly shooting a person in the neck establishes an intention to kill or cause grievous bodily harm, satisfying section 206(b) of the Penal Code.

Reasoning

The Court accepted the trial judge's finding that the appellant deliberately cocked his gun and shot the deceased; that conduct falls squarely within malice aforethought as defined by section 206(b), so the murder conviction stood and the death sentence was the only lawful sentence.

p. 5
04

Continuation of trial before two assessors

Holding

The judge's discretion to dispense with an absent assessor was substantially in accordance with the law and any irregularity was curable and caused no injustice.

Reasoning

Three assessors sat through the prosecution case and the appellant's unsworn statement; after adjournments one assessor was absent on the day of final submissions. The judge declined to adjourn and dispensed with him. The Court found no injustice and held the defect curable under section 302 of the Criminal Procedure Code.

p. 5

Legal principles established

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  • An accused represented by counsel in the High Court who fails to raise a violation of section 72(3) of the Constitution (unlawful detention before arraignment) at trial is taken to have waived the right to complain of it on appeal.
  • The evidence of a relative or interested witness does not require corroboration as a matter of law and may sustain a conviction if believed.
  • Proceeding with a trial before two assessors after dispensing with an absent assessor does not occasion injustice and any irregularity is curable under section 302 of the Criminal Procedure Code.

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.The conviction for murder and sentence of death imposed by the High Court are upheld

Authorities

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Legislation

  • Penal Codesection 203 as read with section 204
  • Penal Codesection 202
  • Penal Codesection 206(b)
  • Penal Codesection 9 (including section 9(3))
  • Constitution of Kenyasection 72(3)
  • Criminal Procedure Code (Cap 75)section 306(1)
  • Criminal Procedure Code (Cap 75)section 263
  • Criminal Procedure Code (Cap 75)section 271
  • Criminal Procedure Code (Cap 75)section 302

Cases cited (2)

  • JAMES GITHUI WATHIAKA & ANOTHER VS. REPUBLIC
    Criminal Appeal No. 115 of 2007 (unreported)
  • PROTAS MADAKWA alias COLLINS AND TWO OTHERS VS. REPUBLIC
    Criminal Appeal No. 118 of 2007 (unreported)
On appeal from
High Court of Kenya at Kisii
H.C.CR.A. NO. 61 OF 2003
Jurisdiction invoked
First appeal to the Court of 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, "Thomas Sangare Kelolon v Republic [2009] KECA 405 (KLR)", Case Analysis (2009). Criminal Appeal 169 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/405/eng@2009-01-16

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