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Court of AppealDismissedCriminal Appeal No. 263 of 2007· [2011] KECA 24 (KLR)

Moses Gitonga Macharia v Republic [2011] KECA 24 (KLR)

Court of Appeal of Kenya
1 December 2011
4,524 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed a murder conviction based on circumstantial evidence, ruling that 'I was drunk' is no defence unless intoxication truly destroyed the ability to form intent.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nyeri (Waki, Aganyanya and Visram, JJ.A) against conviction and the death sentence imposed by the High Court (Okwengu, J.) for the murder of Margaret Muthoni Thiongo, a commercial sex worker strangled in a lodge room at South Tetu Bar & Restaurant in Nyeri on the night of 11th and 12th May 2005. There being no eyewitness, the case rested on circumstantial evidence: several witnesses at the bar premises consistently described the man last seen with the deceased as having a shiny false tooth, a scar at the back of his head and peculiar ears, and identified the appellant at identification parades. On appeal, counsel combined eight grounds into three: absence of proof of malice aforethought; circumstantial evidence not irresistibly pointing to guilt; and failure to consider evidence favourable to the appellant, including intoxication and his alibi. The Court dismissed all three grounds. It held that malice aforethought could properly be inferred from the brutal strangulation, applying section 206 of the Penal Code and R v Tubere. On intoxication, it adopted the approach in R v Sheehan & Moore under section 13(4) of the Penal Code but found no evidence of intoxication, only drinking. Applying the classic principles in Kipkering Arap Koske and Simoni Musoke v Uganda, the Court found the circumstantial evidence incompatible with innocence, held the alibi self-serving, and noted the appellant's duty under section 111 of the Evidence Act to explain what happened to the deceased. The appeal was dismissed in its entirety, affirming the conviction and sentence.

Key legal issues

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01

Proof of malice aforethought in murder

Holding

Malice aforethought was established by inference from the circumstances of the strangulation, which showed an intention to cause death or grievous harm within section 206 of the Penal Code.

Reasoning

The medical evidence showed that all tracheal rings were crushed, with bruises to the neck, chest and bleeding into the lung cavity. The Court held such an act could not be a love embrace gone awry and must have been intended to cause grievous harm or death. Following R v Tubere, malice aforethought, being a mental state, may be inferred from surrounding circumstances. The trial court's inference was therefore proper.

p. 5
02

Effect of intoxication on mens rea

Holding

Intoxication does not constitute a defence save under the restricted parameters of section 13 of the Penal Code; on the facts there was evidence of drinking but no evidence of intoxication, so the ground failed.

Reasoning

Section 13(4) requires intoxication to be taken into account in determining whether the accused formed the requisite intention, and the Court adopted the approach in R v Sheehan & Moore that a drunken intent is nevertheless an intent. However, the trial judge did sum up intoxication to the assessors, and on evaluation only drinking of a few beers was proved, which did not amount to a loss of the appellant's faculties.

p. 6
03

Circumstantial evidence and the alibi defence

Holding

The consistent description of the man last seen with the deceased by Bernard, Theresa and Owino, whose credibility the trial court found sound, irresistibly pointed to the appellant and displaced his self-serving alibi.

Reasoning

Applying the classic principles in Kipkering Arap Koske and Simoni Musoke v Uganda, the Court found the inculpatory circumstances incompatible with innocence. The appellant was the last person seen with the deceased and, being found with her in Room 12, owed a duty under section 111 of the Evidence Act to explain what happened to her. His alibi was self-serving and amounted to no explanation.

p. 6

Legal principles established

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  • Circumstantial evidence is as good as direct evidence only where the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis than guilt.
  • Where intoxication is in evidence, the court must take it into account in determining whether the accused was capable of forming the necessary intention; however, a drunken intent is nevertheless an intent.
  • Malice aforethought, being a state of mind, may be inferred from the surrounding circumstances of the killing rather than proved by direct evidence.
  • On a first appeal, the Court of Appeal must re-evaluate the evidence and reach its own conclusions while allowing for the fact that it did not see or hear the witnesses.

Court orders

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  1. 1.The appeal is dismissed
On appeal from
High Court of Kenya at Nyeri
H. C. Cr. C No. 16 of 2005
Jurisdiction invoked
First appeal to the Court of Appeal against conviction and sentence for murder under the Criminal Procedure Code

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Moses Gitonga Macharia v Republic [2011] KECA 24 (KLR)", Case Analysis (2011). Criminal Appeal No. 263 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/24/eng@2011-12-01

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