CHENGO PEVU MAKAU & another v REPUBLIC [2010] KECA 445 (KLR)
The bottom line
#Kenya's Court of Appeal reduced two murder convictions to manslaughter, cutting the death sentences to 15 years because the trial judge ignored the accused men's drunkenness.
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 deceased was killed or accidentally drowned in the dam
- 2.Whether the appellants, alone or with others, caused the deceased's death
- 3.Whether the killing, if any, was with malice aforethought so as to constitute murder rather than manslaughter
Key legal issues
#Duty of a first appellate court
The Court is bound to re-evaluate and analyse the whole evidence and reach its own independent conclusions, while making allowance for not having seen or heard the witnesses.
Citing Okeno v R, the court restated the settled first-appeal duty: the appellants are entitled to a fresh evaluation of the evidence, and the appellate court must not blindly accept the trial court's conclusions but must weigh credibility findings with caution since it lacks the advantage of observing demeanour.
Sufficiency of circumstantial evidence of killing
The circumstantial evidence, chiefly Njevu's eyewitness account of the assault, the appellants being last seen with the deceased, their failure to explain his fate, and the 1st appellant's anxiety to avoid a post mortem, established that the appellants killed the deceased; accidental drowning was excluded by the fact that the body was naked with clothes recovered near the dam.
Njevu was believed as a straightforward witness who knew the appellants well and saw them by moonlight a metre away. Section 111 of the Evidence Act placed an evidential burden on the appellants to explain facts especially within their knowledge; their silence gave rise to a rebuttable presumption.
Murder versus manslaughter - malice aforethought and drunkenness
Although the killing was proved, the trial court's failure to consider the appellants' drunkenness and the surrounding circumstances meant the offence was not proved as murder; the benefit of the doubt was given and manslaughter substituted.
The trial judge did not deal with the appellants' possible drunkenness. There was accepted evidence they had been drinking, and a love triangle existed. Had these circumstances been considered with particularity, the probable conclusion would have been manslaughter, not murder. The court could not infer malice aforethought beyond reasonable doubt.
Legal principles established
#- On a first appeal, the appellate court must re-evaluate and analyse all the evidence and reach its own independent conclusions while bearing in mind that it did not see or hear the witnesses
- Circumstantial evidence may in some cases prove a fact with the accuracy of mathematics
- Where an accused fails to explain facts especially within their knowledge, such as how they parted company with the deceased last seen alive, a rebuttable presumption arises that they killed the deceased or know how he met his death
Court orders
#- 1.Quashed the appellants' respective convictions for murder contrary to section 203 as read with section 204 of the Penal Code
- 2.Set aside the sentence of death imposed on each appellant
- 3.Substituted a conviction for manslaughter contrary to section 202 as read with section 205 of the Penal Code
- 4.Sentenced each appellant to 15 years imprisonment to run from the date of conviction, namely 11th July 2006
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- H.C. CR. C. No. 29 of 2003
- Jurisdiction invoked
- First appeal to the Court of Appeal against conviction and sentence on a murder charge (Criminal Appeal 196 of 2006, consolidated appeals)
Relief refused
#Outright acquittal of both appellants
The court was satisfied on the evidence, including that of Njevu and the appellants' unexplained parting from the deceased, that the appellants killed the deceased; only the murder/manslaughter characterisation was disturbed
Costs
No costs order 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 being a first appeal, we are duty bound to consider all the evidence which was adduced before the trial court, re-evaluate and analyse it and come to our own independent conclusions
Both appellants did not explain how they parted with the deceased. A rebuttable presumption arises that they were either the people who killed the deceased or that they know how he met his death.
The deceased's body was naked. His clothes were recovered near the dam where the body was found. These circumstances exclude accidental drowning.
we quash the appellants' respective convictions for the offence of murder contrary to section 203 as read with section 204 of the Penal Code, set aside the sentence of death imposed, and substitute therefor a conviction for the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code.
In the circumstances we sentence each appellant to 15 years imprisonment to run from the date of conviction namely, 11th July, 2006. It is so ordered.
Issues in the judgment
#The memorandum of appeal lists 7 identical grounds and counsel abandoned grounds 1, 3, 4 and 6, yet ground 6 is quoted among the grounds argued, creating an internal inconsistency
The judgment does not state the grounds of appeal were consolidated by number; the appeal is described as consolidated but only Appeal 196 of 2006 appears in the header
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "CHENGO PEVU MAKAU & another v REPUBLIC [2010] KECA 445 (KLR)", Case Analysis (2010). Criminal Appeal 196 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/445/eng@2010-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.