James Kipkemoi Ngetich v Republic [2011] KECA 36 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a murder victim's last words naming her killer can alone support a conviction, if properly corroborated.
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 screams of the deceased, naming the appellant as her killer, were admissible as dying declarations
- 2.Whether the dying declarations were sufficiently corroborated to sustain a conviction
- 3.Whether the evidence of PW1, PW2 and PW3 was inadmissible hearsay
- 4.Whether the confession to a police constable was admissible
- 5.Whether the defences of insanity or drunkenness were established on the evidence
Key legal issues
#Admissibility of the deceased's dying declarations
The screams naming the appellant were admissible as dying declarations under section 33(a) of the Evidence Act
The court held that statements by the deceased as to the cause of her death are admissible whether or not she was under expectation of death, because the circumstances in which the screams were made resulted in her death. The witnesses heard the deceased scream that the appellant was killing her, and the screams ceased, after which she was found dead.
Sufficiency of corroboration
Independent, mutually consistent evidence of two neighbours plus evidence of a history of violent quarrels supplied ample corroboration
At least two neighbours independently heard the same screams naming the appellant, both recognised the deceased's voice, and evidence of the couple's habitual violent quarrels excluded the possibility of an attack by others. This constituted circumstantial evidence implicating the appellant and confirming both commission of the crime and its perpetrator.
Hearsay objection
The neighbours' evidence was not hearsay; they personally heard the screams
Counsel argued the three witnesses gave hearsay evidence since they did not witness the killing. The court rejected this: the witnesses testified that they themselves heard the deceased screaming, not that they had been told of it, and their direct sensory perception of the screams fell within admissible evidence under section 63(2)(b) of the Evidence Act.
Admissibility of the confession to a police constable
The confession to PC Edward Koros was inadmissible under section 25A of the Evidence Act, but the conviction stood on the independent evidence
The court held that a confession made to a police constable does not satisfy section 25A of the Evidence Act and was therefore inadmissible. However, this did not assist the appellant because the independent evidence of the three neighbours was by itself sufficient to sustain the conviction for murder.
Defences of insanity and drunkenness
Neither defence was made out; the clinical officer's opinion of poor judgment did not amount to insanity
Section 12 of the Penal Code requires a disease of the mind rendering the accused incapable of understanding his acts or knowing they were wrong. A clinical officer's remark about poor sense of judgment indicative of temporary insanity did not meet that definition, and there was no proof of intoxication amounting to insanity under section 13(2)(b). The court placed no weight on that opinion.
Legal principles established
#- On a first appeal, the Court of Appeal must reconsider and re-evaluate the evidence and draw its own independent conclusions
- A deceased's dying declaration naming her assailant is admissible under section 33(a) of the Evidence Act even though the maker was not under expectation of death
- A dying declaration need not be corroborated as a rule, but caution requires satisfactory corroboration, particularly as to the attack, identification of the assailant and weapon used
- Corroboration of a dying declaration may be circumstantial evidence connecting the accused with the crime; it need not be direct evidence
Court orders
#- 1.Appeal dismissed; conviction for murder and sentence of death imposed by the High Court upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kericho
- H.C.CR.C. No. 62 of 2003
- Jurisdiction invoked
- First appeal to the Court of Appeal against conviction and sentence on a charge of murder
Relief refused
#Quashing of the conviction and setting aside of the death sentence
The court found sufficient admissible and corroborated evidence of dying declarations and circumstantial evidence identifying the appellant as the killer
Costs
No order as to costs is recorded 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.
it is our view that they constitute dying declarations and are therefore admissible under section 33(a) of the Evidence Act Cap 80 because the circumstances in which the screams were made resulted in her death
In the matter before us we find there was ample corroboration because at least two of the appellant's neighbours heard the same screams mentioning the appellant by name from their respective houses and independently.
In our view the confession to a police constable was not admissible by dint of section 25A of the Evidence Act but the independent evidence of the three witnesses was sufficient to sustain a conviction.
As the first appellate court our duty is to reconsider, re-evaluate the evidence and draw independent conclusions, see OKENO V. REPUBLIC [1972] E.A. 32.
In the result the appeal must fail and the same is dismissed.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Kipkemoi Ngetich v Republic [2011] KECA 36 (KLR)", Case Analysis (2011). Criminal Appeal No. 75 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/36/eng@2011-09-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.