Alexander Kilei Kasuki v Republic [2010] KECA 420 (KLR)
The bottom line
#Kenya's Court of Appeal replaced attempted murder convictions with grievous harm because intent to kill was never proved, but the 15-year sentences stood.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial proceedings were conducted in a language the appellant did not understand, in breach of his right to a fair trial
- 2.Whether the appellant was denied the right to cross-examine prosecution witnesses
- 3.Whether the findings of fact by the two courts below can be disturbed on second appeal
- 4.Whether specific intent essential to the offence of attempted murder under section 220(b) of the Penal Code was established
Key legal issues
#Fair trial - language and right of cross-examination on second appeal
The complaints were baseless; the plea was taken with an interpreter in Kikamba, the interpreter was present throughout, and the appellant cross-examined all prosecution witnesses and gave a detailed defence.
The court examined the record of the trial itself. It found that the plea of 30th November 2001 was taken in the presence of a court clerk and an interpreter, Mr Mutisya, who interpreted English to Kikamba, the appellant's mother tongue. That interpreter remained present throughout, the record confirmed the appellant's cross-examination of every prosecution witness, and he made a lengthy detailed defence. The complaints were therefore rejected.
Concurrent findings of fact on second appeal
The Court accepted the concurrent findings of the two courts below that the appellant shot at, killed and seriously injured innocent passers-by in a deliberate and unprovoked act.
Being a second appeal, the Court's remit is confined to matters of law; it defers to concurrent findings of fact made by the trial court and the first appellate court. The two courts below had rejected the appellant's defence that he fired at persons invading his place of duty, finding instead that he wantonly shot innocent members of the public with no provocation or threat to his life or property.
Specific intent for attempted murder and substitution of cognate lesser offence
Specific intent for attempted murder was not established on the evidence; the evidence showed commission of grievous harm, and the Court substituted convictions under section 234 of the Penal Code while upholding the 15-year sentences.
Although the findings of fact stood, the Court considered that the sum total of the evidence did not establish the specific intent essential to attempted murder under section 220(b). The evidence showed a lesser, cognate offence of grievous harm contrary to section 234. Exercising its power on appeal, it set aside the attempted murder convictions and substituted convictions for grievous harm, leaving the concurrent 15-year sentences intact to run from 13th August 2002.
Legal principles established
#- On a second appeal, the Court of Appeal is bound by concurrent findings of fact of the two courts below and will not interfere with them.
- A conviction for attempted murder under section 220(b) of the Penal Code requires proof of specific intent; where the evidence establishes only recklessness or wanton conduct without proof of intent to kill, the court may substitute a conviction on a lesser cognate offence such as grievous harm under section 234.
Court orders
#- 1.Complaints on language of trial and denial of cross-examination rejected
- 2.Convictions on attempted murder contrary to section 220(b) of the Penal Code set aside
- 3.Substituted convictions for grievous harm contrary to section 234 of the Penal Code
- 4.The four concurrent sentences of 15 years imprisonment each shall stand and be served as from the date of conviction, 13th August 2002
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Machakos
- H.C.CR.A. No. 211 of 2002
- Jurisdiction invoked
- Second appeal to the Court of Appeal on a first appeal from the High Court in criminal matters (as of right on matters of law, the convictions and sentence having been upheld on first appeal)
Relief refused
#Quashing of the sentences of 15 years imprisonment on each count
The court upheld the sentences, ordering them to stand on the substituted convictions of grievous harm
Quashing of convictions on the ground of language and denial of cross-examination
The record showed an interpreter was present throughout and the appellant cross-examined all prosecution witnesses
Costs
No costs order made; the judgment contains no order as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This Court, as this is a second appeal, has loyalty to accept these findings and there is no basis for us to interfere with them.
in our view, specific intent essential to constitute the crime of attempted murder under section 220 (b) of the Penal Code was not established.
In the result as that offence is lesser and cognate to the one under section 220 (b) above, we set aside the convictions on attempted murder and substitute in lieu thereof convictions for grievous harm contrary to section 234 of the Penal Code.
The four concurrent sentences of 15 years each shall stand and shall be served as from the date of conviction which was on 13th August 2002.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alexander Kilei Kasuki v Republic [2010] KECA 420 (KLR)", Case Analysis (2010). Criminal Appeal No. 134 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/420/eng@2010-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.