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Court of AppealPartially AllowedCriminal Appeal No. 246 of 2008· [2013] KECA 111 (KLR)

Mohamood Mohammed Ali v Republic [2013] KECA 111 (KLR)

Court of Appeal of Kenya
8 October 2013
David Kenani MaragaD. K. MaragaSKS. Gatembu KairuJMJ. Mohammed
4,426 words in judgment
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The bottom line

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Kenya's Court of Appeal freed a man convicted of murder because contradictory evidence and unexplained doubts meant his guilt was never proved beyond reasonable doubt.

What this practically means

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Executive summary

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This was a first appeal against a High Court judgment (Muga Apondi J, 27 September 2007) in which the appellant, charged with the murder of Gavoi Gure, was convicted of murder but insane and the case directed to be reported for the order of the President under section 166(2) of the Criminal Procedure Code. The Court of Appeal framed three issues: the sufficiency of the identification and circumstantial evidence, the alleged breach of the appellant's fair-trial rights under section 77(2)(b) and (f) of the repealed Constitution, and whether the conviction contravened section 12 of the Penal Code. On the first issue, the Court found the evidence of PW1 and PW3 riddled with contradictions, leaving only circumstantial evidence - the appellant holding a panga, the deceased with cuts, in the same room - and testimony that five people were seen running from the scene raised a reasonable hypothesis of innocence the prosecution failed to exclude. Applying Okeno v Republic, Kipkering Arap Koske and Mary Wanjiku Gichira, the Court held guilt was not proved beyond reasonable doubt. On the second issue, the Court found from the record that a Somali interpreter had been provided and no constitutional violation occurred. On the third issue, applying Chemagong v R and Marii v R, the Court held the trial judge correctly made a special finding of guilty but insane, and the appellant was not entitled to an outright acquittal on insanity grounds. The appeal was nevertheless allowed on the insufficiency of evidence, and the appellant was ordered set free forthwith unless otherwise lawfully held. The judgment was delivered by the full bench at Nairobi on 8 October 2013.

Key legal issues

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01

Whether identification and circumstantial evidence established guilt beyond reasonable doubt

Holding

No. The evidence of PW1 and PW3 was inconsistent and contradictory; there was no direct evidence that the appellant assaulted the deceased, and the testimony that five people were seen running away from the scene introduced a reasonable doubt the prosecution failed to displace.

Reasoning

The Court found PW1 inconsistent about knowing the appellant and about witnessing the assault, and PW3 contradictory between seeing the appellant assaulting the deceased and finding him struggling over a panga with PW1. Only circumstantial evidence remained. The possibility that those running from the scene caused the death was a reasonable hypothesis the prosecution had to exclude but did not. The trial judge failed to analyse these contradictions, so the guilt of the appellant was not established beyond reasonable doubt.

p. 5
02

Whether the appellant's fair-trial rights under section 77(2)(b) and (f) of the repealed Constitution were violated

Holding

No. The record showed a Somali interpreter was provided throughout the trial.

Reasoning

The Court reviewed the record and found the presence of a Somali translator noted on multiple occasions, with payment orders for the interpreter at the end of each day's proceedings and adjournments to secure the translator's presence. This satisfied the constitutional requirements that an accused be informed of the charge in a language he understands and be provided an interpreter.

p. 6
03

Whether the conviction was contrary to section 12 of the Penal Code given the appellant's chronic schizophrenia

Holding

The trial judge correctly made a special finding of guilty but insane under section 166 of the Criminal Procedure Code; the appellant was not entitled to an outright acquittal on this basis, though the appeal otherwise succeeded.

Reasoning

Section 12 of the Penal Code removes criminal responsibility where a disease of the mind renders the accused incapable of understanding his act or knowing it wrong, and the burden of proving insanity lies on the accused on a balance of probabilities. The trial judge found the appellant insane at the time of the act; where such a finding is made, section 166 of the Criminal Procedure Code requires a special finding of guilty but insane and a report for the order of the President, not an acquittal.

p. 7

Legal principles established

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  • On a first appeal the appellate court must re-evaluate and analyse the evidence and draw its own conclusions, making allowance for the trial court's advantage of seeing and hearing witnesses.
  • Circumstantial evidence justifying an inference of guilt must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis; the burden of proving this always remains on the prosecution and never shifts.
  • Suspicion however strong cannot provide a basis for inferring guilt, which must be proved by evidence.
  • The burden of proving insanity once raised lies on the accused on a balance of probabilities, to show that at the relevant time he was suffering from a disease affecting his mind and was incapable through it of understanding what he was doing or knowing he ought not to do the act.
  • Where an accused is found to have been insane at the time of the act, the court shall make a special finding that the accused was guilty of the act or omission charged but was insane, and report the case for the order of the President under section 166 of the Criminal Procedure Code.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The appellant is to be set free forthwith unless otherwise lawfully held

Authorities

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Legislation

  • Penal Codesection 203
  • Penal Codesection 204
  • Penal Codesection 12
  • Criminal Procedure Codesection 166
  • Criminal Procedure Codesection 166(2)
  • Criminal Procedure Codesection 306
  • Repealed Constitution of Kenyasection 77(2)(b) and (f)
  • Constitution of Kenya, 2010Article 25(a)
  • Constitution of Kenya, 2010Article 28
  • Constitution of Kenya, 2010Article 29

Cases cited (6)

  • Kiarie v R
    [1984] KLR 741
  • Kipkering Arap Koske v R
    [EACA] 16, 135
  • Mary Wanjiku Gichira v R
    Criminal Appeal No. 17 of 1998
  • Okeno v Republic
    [1972] E A 32
  • Chemagong v R
    [1984] KLR 611
  • Marii v R
    [1985] KLR 710
On appeal from
High Court of Kenya at Nairobi
H.C.CR.C. No. 94 of 2005
Jurisdiction invoked
First appeal to the Court of Appeal under the Criminal Procedure Code (criminal appellate jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (15)

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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, "Mohamood Mohammed Ali v Republic [2013] KECA 111 (KLR)", Case Analysis (2013). Criminal Appeal No. 246 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/111/eng@2013-10-08

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