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Court of AppealPartially AllowedCriminal Appeal No. 157 of 2007

Anthony Kinyanjui Kimani v Republic [2011] KECA 319 (KLR)

Court of Appeal of Kenya
18 March 2011
6,633 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 upheld a murder conviction but ruled that sentencing a person to death without letting them speak in mitigation was wrong.

What this practically means

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Executive summary

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The Court of Appeal (Bosire, Waki and Nyamu, JJ.A) dismissed the appellant's appeal against his conviction for the murder of Francis Kamanja Ndubai by the High Court (Ojwang, J.) on 18 September 2007, but allowed the appeal on sentence. The appellant, who had been sentenced to death without any opportunity to mitigate (the sentence having since been commuted to life imprisonment), raised six grounds argued by appointed counsel out of fourteen originally pleaded in person. The court, as a first appellate court, re-evaluated the evidence and upheld the trial judge's findings. It held that neither David (PW2) nor his wife Tabitha (PW1) was an accomplice, so no accomplice warning or corroboration direction was required; that minor inconsistencies in the evidence did not materially affect the totality of the prosecution case; that no adverse inference arose from the prosecution's failure to call Michelle the chang'aa den owner; that any breach of rights arising from over three months of pre-trial detention was remediable in damages, not acquittal; and that there is no burden on an accused to prove an alibi, the prosecution having discharged its burden of displacing it. On sentence, following its decision in Geofrey Ngotho Mutiso v Republic, the court found merit in the complaint that the appellant was sentenced to death without mitigation and remitted the case to the superior court to record submissions from both the prosecution and the appellant before determining an appropriate sentence. The judgment is a single judgment of the whole court and binds subordinate courts on the accomplice, alibi, witness-numbers and mitigation propositions stated.

Questions the Court framed

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

  1. 1.Whether the trial court erred in failing to warn itself that the evidence of David (PW2) was accomplice evidence requiring corroboration
  2. 2.Whether the prosecution case was proved beyond reasonable doubt notwithstanding alleged contradictions in the evidence
  3. 3.Whether an adverse inference should be drawn against the prosecution for failing to call Michelle as a witness
  4. 4.Whether the appellant's detention in police custody for over three months breached his constitutional rights so as to vitiate the conviction
  5. 5.Whether the trial court erred in rejecting the appellant's alibi defence
  6. 6.Whether the appellant was denied an opportunity to mitigate before sentencing

Key legal issues

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01

Accomplice evidence and the duty to warn

Holding

David (PW2) and Tabitha (PW1) were not accomplices; the trial judge was entitled to make findings of credibility and no warning or corroboration direction was required.

Reasoning

The warning envisaged in Joseph s/o Jeremiah v Reginam is preceded by a finding that the witness is an accomplice. David's evidence was that he left the deceased alive in the appellant's house, and his alibi for the day was elaborate and unchallenged. He was arrested only because of the appellant's false report. Whether a witness is an accomplice is deduced from the facts of each case, and credibility findings rest with the trial court that saw and heard the witnesses.

p. 7
02

Alleged contradictions in the prosecution case

Holding

The inconsistencies identified did not materially affect the totality of the prosecution evidence.

Reasoning

Whether David or Michelle pointed out the body was immaterial since both accompanied the police to the site; Tabitha was not cross-examined on her testimony that there was only one tenant; and the investigating officer's record outweighed the appellant's report relied on by Pc. Wamela.

p. 8
03

Failure to call Michelle as a witness

Holding

No adverse inference could be drawn against the prosecution for failing to call Michelle.

Reasoning

Section 143 of the Evidence Act provides that no particular number of witnesses is necessary to prove a fact. The only fact Michelle could prove was that she last saw the deceased with David, and it fell to David to explain what happened thereafter under section 111(1) of the Evidence Act, a burden he discharged and was believed on.

p. 8
04

Prolonged pre-trial detention as a constitutional breach

Holding

The breach, if any, is remedied by damages and cannot result in acquittal where no trial-related prejudice is shown.

Reasoning

Following Julius Kamau Mbugua v Republic, unlawful detention has no link or effect on the trial process itself and does not justify exoneration. The complaint was also belated, not having been raised before the superior court.

p. 8
05

Alibi and burden of proof

Holding

There is no burden on the accused to prove an alibi, but the prosecution evidence here was overwhelming and displaced the alibi.

Reasoning

The trial judge considered the confusion in the appellant's testimony about Moktar Daddah Street and Accra Road as going to credibility, found him untruthful, and found overwhelming evidence that he was in the Dandora area up to after midday on the material day.

p. 8
06

Sentencing without opportunity to mitigate

Holding

The appellant was not given an opportunity to mitigate before the death sentence was imposed; this ground had merit and the sentence was remitted for reconsideration.

Reasoning

Following Geofrey Ngotho Mutiso v Republic, the record showed that the appellant was simply sentenced to death after conviction without mitigation. The court could not itself resentence and instead remitted the case to the superior court to record submissions from both sides before deciding on an appropriate sentence.

p. 9

Legal principles established

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  • On a first appeal the Court of Appeal must re-assess and re-evaluate the evidence and reach its own conclusions, while allowing for the fact that it did not see or hear the witnesses.
  • A person who merely fails to report a crime is not an accomplice; the accomplice warning and corroboration rule is only engaged once a witness is found to be an accomplice on the facts.
  • No particular number of witnesses is necessary to prove any fact unless the law so requires; failure to call a witness does not automatically attract an adverse inference.
  • There is no burden on an accused person to prove his alibi; the prosecution bears the burden throughout of negating the alibi.
  • The remedy for infringement of an accused person's rights through prolonged unlawful pre-trial detention lies in damages, not acquittal, where the detention caused no trial-related prejudice.
  • An accused person must be given an opportunity to mitigate before sentence is pronounced.

Court orders

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  1. 1.The appeal against conviction is dismissed
  2. 2.The case is remitted to the superior court with a direction that it records the prosecution's and the appellant's submissions before deciding on the sentence that befits the appellant

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
H.C.CR.C. No. 63 of 2005
Jurisdiction invoked
First appeal to the Court of Appeal against a conviction and sentence for murder under section 203 as read with section 204 of the Penal Code

Relief refused

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Acquittal on the ground of absence of an accomplice warning

David and Tabitha were not accomplices as a matter of fact found on credibility

p. 7

Acquittal on the basis of constitutional breaches arising from prolonged pre-trial detention

The remedy for such infringement lies in damages as the unlawful detention had no link or effect on the trial process

p. 8

Drawing an adverse inference against the prosecution for not calling Michelle as a witness

No particular number of witnesses is necessary to prove a fact and David discharged his burden of explanation

p. 8

Rejection of the alibi ground

The trial judge disbelieved the alibi and found the prosecution evidence overwhelming so as to displace it

p. 9

Costs

No costs order was made in the judgment

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.

In the result, we hold that the appeal against conviction is not meritorious and we order that it be and is hereby dismissed.
p. 9Final orders – dismissal of appeal against conviction
As regards sentence, we remit the case to the superior court with the direction that the court records the prosecution’s as well as the appellant’s submissions before deciding on the sentence that befits the appellant.
p. 9Final orders – remittal on sentence
As this is a first appeal it is our duty to re-assess the evidence on record and re-evaluate it in reaching our own conclusions in the matter.
p. 1Duty of first appellate court
while a person who aids and abets the commission of a crime or assists the guilty person to escape punishment is always an accomplice, a person who merely acquiesces in what is happening or who fails to report a crime is not normally an accomplice
p. 7Definition of accomplice
It is indeed the law that there is no burden cast on an accused person to prove his alibi – see Kibale v Uganda [1999] 1 EA 148 (scu). The prosecution has the burden throughout of negating the alibi.
p. 8Alibi and burden of proof
the remedy for infringement of the rights of an accused person in that manner lay in damages as the unlawful detention had no link or effect on the trial process itself or caused trial related prejudice to the appellant
p. 8Remedy for unlawful pre-trial detention
No particular number of witnesses are necessary for proof of any fact unless the law so requires – section 143, Evidence Act.
p. 8Number of witnesses required

Issues in the judgment

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minor

Typographical error in the signature block rendering the judge's rank as 'JUDGE OF APEPAL' instead of 'JUDGE OF APPEAL'.

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, "Anthony Kinyanjui Kimani v Republic [2011] KECA 319 (KLR)", Case Analysis (2011). Criminal Appeal No. 157 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/319/eng@2011-03-18

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