John Irungu Macharia v Republic [2010] KECA 395 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a murder appeal, ruling that a constitutional complaint not raised at trial cannot be raised for the first time on appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the constitutional ground regarding delay in being produced in court could be raised for the first time on appeal
The ground fails because it was not raised before the High Court, which could have allowed the prosecution to investigate and explain the delay; section 84(1) of the Constitution provides the remedy
The court accepted that the issue was admitted not to have been raised at trial. The High Court is itself a constitutional court where the complaint could have been ventilated, enabling the prosecution to explain the delay. The redress mechanism for alleged contraventions of sections 70 to 83 lies in an application to the High Court under section 84(1). Raising the complaint for the first time on appeal therefore has no merit.
Whether the circumstantial evidence was sufficient to sustain the murder conviction
Yes. Despite excluding the testimony of the child witness F, the combined testimony of the teacher Wambui, Elizabeth and Alice established the appellant's guilt, and the inculpatory facts were incompatible with innocence
The court undertook a fresh evaluation of the trial evidence, mindful that it had not seen or heard the witnesses. It accepted the trial court's finding that the child witness's testimony should be excluded for want of an inquiry into the child's ability to tell the truth, but held the remaining evidence powerful. It applied the established test that inculpatory facts must be incompatible with innocence and incapable of explanation on any other hypothesis, and concurred with the assessors and the trial judge.
Whether the testimony of the child witness F ought to have been received without a voir dire inquiry
The court agreed with the appellant's counsel that the trial judge erred in not inquiring into the child's ability to tell the truth, and excluded that testimony
Counsel argued that the learned Judge did not inquire into the child's ability to tell the truth before accepting his evidence. The court found merit in that argument and excluded the testimony of F. However, this did not assist the appellant because the conviction rested on the independent and powerful testimony of the teacher Wambui combined with that of Elizabeth and Alice, which the court found sufficient to sustain the conviction.
Legal principles established
#- On a first appeal, the appellate court must subject the evidence tendered in the superior court to a fresh and exhaustive examination while making allowance for the fact that it did not hear and see the witnesses
- In a case depending exclusively on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation on any other hypothesis than guilt
- Each link in a chain of circumstantial evidence must be closely and separately examined before the whole chain is put together
- A constitutional complaint under section 72(3) regarding delay in being brought to court, not raised before the High Court, cannot be entertained for the first time on appeal, redress lying under section 84(1) of the Constitution
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The conviction of the appellant for murder and the sentence imposed by the High Court stand
- On appeal from
- High Court of Kenya at Nairobi
- H. C. Cr. C. No. 69 of 2005
- Jurisdiction invoked
- First and final appeal to the Court of Appeal against a conviction and sentence of the High Court for murder contrary to section 203 as read with section 204 of the Penal Code
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Irungu Macharia v Republic [2010] KECA 395 (KLR)", Case Analysis (2010). Criminal Appeal No. 23 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/395/eng@2010-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.