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Court of AppealPartially AllowedCriminal Appeal No. 24 of 2008

Nelson Julius Karanja Irungu v Republic [2010] KECA 158 (KLR)

Court of Appeal of Kenya
16 July 2010
EOE. O. O'KubasuPWP. N. WakiJNJ. G. Nyamu
4,596 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 18 years, because the trial judge never let assessors consider provocation or self-defence.

What this practically means

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Executive summary

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The appellant, a prison warder, was convicted of the murder of his wife, who died on 21st February 2005 from complications of extensive burns sustained at their Kamiti Prison quarters on 15th February 2005. Two assessors advised acquittal, but the High Court (Apondi, J.) convicted, resting on the deceased's utterances treated as dying declarations and corroborating circumstantial evidence, and sentenced the appellant to death. On appeal, the Court of Appeal held that under section 33 of the Evidence Act, Cap 80, statements by a deceased person as to the cause of death are admissible whether or not made under expectation of death, distinguishing the stricter English rule; however, great caution is required, and it is generally unsafe to convict solely on an uncorroborated dying declaration made in the accused's absence. The Court found the trial Judge erred in applying English law but agreed the evidence established that the appellant caused the unlawful death. Critically, the Judge failed to direct the assessors on lesser and cognate offences and did not place apparent issues of provocation and self-defence before them, which bore on mens rea. Giving the appellant the benefit of doubt, the Court held murder was not proved beyond reasonable doubt. It allowed the appeal in part, quashed the murder conviction, set aside the death sentence, substituted a conviction for manslaughter, and imposed 18 years imprisonment effective from 1st February 2008. The judgment binds lower courts on the statutory test for dying declarations and the duty to direct assessors on cognate offences.

Questions the Court framed

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

  1. 1.Whether the essential ingredients of murder, particularly malice aforethought (mens rea), were proved beyond reasonable doubt
  2. 2.Whether the trial court correctly relied on the deceased's utterances as dying declarations
  3. 3.Whether the trial Judge erred in failing to direct the assessors on lesser and cognate offences, including provocation and self-defence
  4. 4.Whether the circumstantial evidence relied on established that the appellant set the deceased on fire

Key legal issues

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01

Admissibility of statements by the deceased not made at the point of death

Holding

The fact that the deceased's words were not uttered at the point of death does not bar their admissibility; under section 33 of the Evidence Act such statements are admissible regardless of expectation of death, and may form part of the res gestae.

Reasoning

Section 33 of the Evidence Act, Cap 80, admits statements by a deceased person as to the cause of death or circumstances of the transaction resulting in death, whether or not made under expectation of death. The court distinguished the English rule in R v Woodcock and adopted the East African authorities (Choge v Republic, Pius Jasanga s/o Akumu v R) holding that Kenyan admissibility depends on statute, not the English 'in extremity' doctrine. Caution and possible corroboration remain necessary.

p. 5
02

Failure to direct assessors on lesser and cognate offences

Holding

The trial Judge's failure to direct the assessors to consider lesser and cognate offences, and the failure to put provocation and self-defence issues to them, vitiated the murder conviction; the benefit of doubt was given to the appellant.

Reasoning

The evidence showed an attack on the spur of the moment precipitated by a quarrel, with room for escape after the first assault by torch, raising apparent issues of provocation and self-defence bearing on mens rea. The assessors, a lawful and necessary part of the trial, were only directed to convict or acquit for murder. The court could not know what they would have said had these matters been placed before them, and therefore found murder not proved beyond reasonable doubt.

p. 7
03

Sufficiency of circumstantial evidence and rejection of the defence

Holding

The totality of the evidence established that the appellant caused the unlawful death of the deceased; his defence that she set herself on fire was properly rejected, but the offence was manslaughter, not murder.

Reasoning

Applying the Sawe v Republic test for circumstantial evidence, the court found that the deceased and appellant were together in the house up to the moment she caught fire, a quarrel over Wairimu established motive (not legally required but present), and the defence was a fabrication. However, the spur-of-the-moment nature of the attack and the unresolved issues of provocation and self-defence meant malice aforethought was not established beyond reasonable doubt.

p. 7

Legal principles established

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  • In Kenya the admissibility of a dying declaration does not depend on a settled, hopeless expectation of imminent death as under English law; admissibility depends on section 33 of the Evidence Act, and greater caution is required in the reception of such statements in Kenya than in England.
  • It is not a rule of law that a conviction on a dying declaration must be corroborated, but it is generally unsafe to base a conviction solely on a dying declaration made in the absence of the accused and untested by cross-examination unless there is satisfactory corroboration.
  • On a first appeal the court has a duty to reconsider and evaluate the evidence on record afresh.
  • Where a trial Judge departs from the opinions of the assessors, the Judge ought to explain the reasons for departing from such opinions, and the Judge must properly direct assessors on lesser and cognate offences, provocation and self-defence where they arise on the evidence.

Court orders

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  1. 1.Appeal allowed
  2. 2.Conviction for murder quashed
  3. 3.Sentence of death set aside
  4. 4.Conviction for manslaughter substituted
  5. 5.Sentence of 18 years imprisonment imposed, to run from the date of conviction by the trial court on 1st February 2008

The bench

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

EO
majority
PW
majority
JN
majority
On appeal from
High Court of Kenya at Nairobi
H.C.CR.C. No. 46 of 2005
Jurisdiction invoked
First and final appeal to the Court of Appeal under the applicable provisions of the Criminal Procedure Code against conviction and sentence for murder

Relief refused

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Outright acquittal

Although murder was not proved beyond reasonable doubt, the court found the appellant caused the unlawful death of the deceased, amounting to manslaughter

p. 7

Costs

No order as to costs is 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 allow the appeal, quash the conviction for murder and set aside the sentence of death imposed on the appellant. We substitute therefor a conviction for manslaughter and impose a sentence of 18 years imprisonment which the appellant shall serve with effect from the date of his conviction by the trial court on 1st February, 2008.
p. 7Final orders - substitution of manslaughter conviction
For those reasons we give the benefit of doubt to the appellant and find that the offence of murder was not proved beyond reasonable doubt.
p. 7Burden of proof - murder not proved
The situation in Kenya is, however, different as exemplified in section 33 of the Evidence Act (supra). There is a wealth of authorities from this Court on the nature and the manner of receiving and considering evidence of dying declaration.
p. 6Kenyan law on dying declarations differs from English law
In law the opinions of the assessors are not binding on the trial Judge although the Judge ought to explain the reasons for departing from such opinions.
p. 4Role of assessors' opinions
It is so ordered.
p. 7Disposition

Issues in the judgment

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minor

The trial Judge's citation of 'Republic versus Reaney and Reddish (1857) 11 Dears & B 151' could not be found by the Court, and the use of 'Republic' in an English case would be erroneous; the passage was actually in R v Woodcock.

minor

The pathologist did not give an opinion on the cause of death, though the Court accepted the death arose from complications of extensive burns.

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, "Nelson Julius Karanja Irungu v Republic [2010] KECA 158 (KLR)", Case Analysis (2010). Criminal Appeal No. 24 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/158/eng@2010-07-16

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