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Court of AppealPartially AllowedCriminal Appeal 271 of 2008

JULIUS OBARE ANGASA v REPUBLIC [2010] KECA 458 (KLR)

Court of Appeal of Kenya
5 February 2010
2,250 words in judgment
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The bottom line

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Kenya's Court of Appeal reduced a murder conviction to manslaughter because the trial judge ignored the accused's claim that drinking affected his intent.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Omolo, O'Kubasu and Aganyanya, JJA) dismissed in part and allowed in part the appellant's appeal against his conviction and sentence for the murder of Margaret Nyambeki Anyona, who was cut with a panga while working on her shamba and died, along with her unborn child, from severe blood loss. The appellant's main grounds were that the trial before Kaburu Bauni, J was a nullity because the trial continued with two assessors after the third absented himself without a formal order dispensing with his attendance, and that the Judge failed to direct the assessors on the defence of intoxication raised in the appellant's unsworn statement. On the first issue, the court acknowledged the trial Judge's defaults but held that section 298(1) of the Criminal Procedure Code permitted the trial to proceed with two assessors where the absent assessor's attendance could not immediately be enforced, and that no failure of justice was occasioned; it declined to declare the trial a nullity, distinguishing Muraya v Republic relied on by the appellant. On the second issue, applying section 13(4) of the Penal Code and David Munga Maina v Republic, the court held the Judge was under a duty to direct himself and the assessors on whether intoxication deprived the appellant of the capacity to form the specific intent to kill, and the failure to do so was a meritorious ground. The court allowed the appeal to the extent of setting aside the murder conviction and substituting a conviction for manslaughter under section 202 as read with section 205 of the Penal Code, set aside the death sentence, and imposed twenty years imprisonment running from 13th June 2006.

Questions the Court framed

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

  1. 1.Whether the continuation of the trial with two assessors after the third assessor absented himself, without a formal order dispensing with his attendance, rendered the trial a nullity
  2. 2.Whether the trial Judge erred in failing to direct himself and the assessors on the defence of intoxication raised in the appellant's unsworn statement
  3. 3.What sentence should be imposed upon substitution of a manslaughter conviction

Key legal issues

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01

Irregularity in dispensing with the attendance of the third assessor

Holding

Although the trial Judge defaulted in formally dispensing with the absent assessor's attendance and in making a clear record, the trial was not a nullity because section 298(1) permitted continuation with two assessors and no failure of justice was occasioned.

Reasoning

Section 262 and 263 of the Criminal Procedure Code require trials before the High Court with three assessors, but section 298(1) allows the trial to proceed with fewer where an assessor is prevented from attending and his attendance cannot immediately be enforced. The court held the phrase 'not practicable immediately to enforce his attendance' must take into account the circumstances of each case; given the four-year delay since the crime and nothing on the record showing attendance could be procured that day, the irregularity did not vitiate the trial.

p. 3
02

Failure to direct on the defence of intoxication

Holding

The trial Judge erred in failing to direct himself and the assessors on intoxication despite the appellant raising liquor consumption in his unsworn statement; this ground succeeded.

Reasoning

Section 13(4) of the Penal Code requires intoxication to be taken into account in determining whether the accused formed the necessary intention. Relying on David Munga Maina v Republic, the court held that raising liquor consumption is not a plea of insanity but a request that the court consider whether the accused could form the specific intent to kill. The Judge mentioned manslaughter in the summing-up but did not tell the assessors the basis for considering it, so the duty to direct was breached.

p. 4
03

Appropriate sentence on substitution of manslaughter conviction

Holding

The court imposed a severe sentence of twenty years imprisonment, running from the date of the High Court sentence, to mark that liquor is no excuse for grave crimes, despite the appellant being a first offender.

Reasoning

The appellant brutally attacked a heavily pregnant woman with a panga, killing her and her unborn child. Although a first offender, the court considered the gravity of the offence warranted a severe sentence that would bring home to him that intoxication is no excuse for such crimes. The sentence runs from 13th June 2006 when he was sentenced by the High Court at Kisii.

p. 4

Legal principles established

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  • A trial begun with three assessors may proceed with two assessors only where it is not practicable immediately to enforce the attendance of the absent assessor under section 298(1) of the Criminal Procedure Code; the trial Judge must show on the record that attendance could not immediately be procured, though failure to make a formal order dispensing with attendance does not automatically vitiate the trial if no failure of justice occurred.
  • Where an accused raises intoxication, the trial Judge is under a duty to direct himself and the assessors on whether intoxication deprived the accused of the ability to form the specific intent, pursuant to section 13(4) of the Penal Code; a claim of having taken liquor is not a plea of insanity.

Court orders

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  1. 1.Conviction for murder set aside and substituted with a conviction for manslaughter under section 202 as read with section 205 of the Penal Code
  2. 2.Sentence of death imposed by the trial court set aside
  3. 3.Appellant sentenced to twenty (20) years imprisonment to run from 13th June 2006

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Kisii
H.C. Cr. C. No. 25 of 2003
Jurisdiction invoked
First appeal to the Court of Appeal against conviction and sentence on a murder charge under the Criminal Procedure Code

Relief refused

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Declaration that the trial was a nullity due to the absence of the third assessor

The court found the course adopted by the trial Judge did not occasion a failure of justice; proceeding with two assessors was permitted under section 298(1) of the Criminal Procedure Code

p. 3

Costs

No costs order made in the criminal appeal.

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.

We accordingly allow the appeal to the extent that we set aside the conviction for murder and substitute therefor a conviction for manslaughter under section 202 as read with section 205 of the Penal Code. We also set aside the sentence of death imposed on him by the trial court.
p. 4disposition - substitution of conviction
We sentence the appellant to twenty (20) years imprisonment to run from 13th June, 2006 when he was sentenced by the High Court in Kisii. Those shall be the orders of the Court in the appeal.
p. 4final orders - sentence
A trial once started with three assessors as mandatorily required by section 263 of the Criminal Procedure Code can only proceed with two assessors in the circumstances envisaged by section 298 (1) of the Code.
p. 3trial with assessors - Muraya v Republic principle cited
a party who says he had taken some liquor is not necessarily raising the defence of insanity.
p. 4intoxication distinguished from insanity

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "JULIUS OBARE ANGASA v REPUBLIC [2010] KECA 458 (KLR)", Case Analysis (2010). Criminal Appeal 271 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/458/eng@2010-02-05

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