Alexander Kilei Kasuki v Republic [2010] KECA 431 (KLR)
The bottom line
#Kenya's Court of Appeal reduced an attempted murder conviction to grievous harm because prosecutors did not prove intent to kill.
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
- 2.Whether the appellant was denied the right to cross-examine prosecution witnesses
- 3.Whether the concurrent findings of fact by the two courts below could be disturbed on second appeal
- 4.Whether the specific intent essential to the offence of attempted murder under section 220(b) of the Penal Code was established
Key legal issues
#Whether the appellant's complaints regarding language of the trial and denial of cross-examination were valid
The complaints were baseless; the record showed an interpreter was present throughout and the appellant cross-examined all prosecution witnesses.
The Court checked the trial record and found that the plea was taken in the presence of an interpreter, Mr Mutisya, who interpreted from English to Kikamba, the appellant's mother tongue, and was present throughout the trial. The appellant also cross-examined all prosecution witnesses and made a lengthy and detailed defence statement, so the fair-hearing complaints failed.
Whether the concurrent findings of fact could be disturbed on second appeal
No; as a second appellate court, this Court must accept the concurrent findings of the two courts below.
The two courts below made concurrent findings that the appellant shot at, killed and seriously injured innocent members of the public in a deliberate and unprovoked act. On a second appeal the Court of Appeal does not revisit facts and had no basis to interfere with those findings.
Whether specific intent for attempted murder was established
The specific intent essential to attempted murder was not established; the evidence showed grievous harm, a lesser cognate offence.
Although the prosecution established that the appellant wantonly and recklessly shot innocent passers-by without provocation, the Court found that the sum total of the evidence did not establish the specific intent required for attempted murder under section 220(b), but did establish grievous harm under section 234, a lesser and cognate offence, permitting substitution of convictions.
Legal principles established
#- On a second appeal, the Court of Appeal is bound by concurrent findings of fact made by 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, which must be established on the evidence.
Court orders
#- 1.Convictions on attempted murder under section 220(b) of the Penal Code set aside
- 2.Substituted convictions for grievous harm contrary to section 234 of the Penal Code
- 3.The four concurrent sentences of 15 years each shall stand, to be served from the date of conviction, 13th August 2002
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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 under the criminal appellate jurisdiction of the Court (the judgment does not cite the specific constitutional or statutory provision)
Relief refused
#Quashing of all four convictions
Convictions were not quashed outright but substituted with convictions on a lesser cognate offence
Reduction or interference with the sentences of 15 years imprisonment
The sentences were allowed to stand
Costs
No costs order was made in the judgment
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.
specific intent essential to constitute the crime of attempted murder under section 220 (b) of the Penal Code was not established
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 431 (KLR)", Case Analysis (2010). Criminal Appeal No 134 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/431/eng@2010-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.