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Court of AppealPartially AllowedCriminal Appeal 259, 255-257, 261 & 275 of 2008· [2013] KECA 332 (KLR)

Jacob Muthee & 8 others v Republic [2013] KECA 332 (KLR)

Court of Appeal of Kenya
26 April 2013
JOJ. W. Onyango OtienoWKWanjiru KaranjaDavid Kenani MaragaD. K. Maraga
33,584 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~134 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal freed five prison officers convicted of murder, but upheld convictions for four who had the victims in their custody.

What this practically means

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Executive summary

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This consolidated judgment of the Court of Appeal (Onyango Otieno, Wanjiru Karanja and Maraga, JJA) disposed of nine appeals by prison officers at Nyeri (King'ong'o) Prison convicted of murdering six condemned inmates on the night of 3rd/4th September 2000. The trial before Ombija, J ended in convictions on the first count with death sentences, despite all three assessors returning opinions of not guilty. The Court, acting as a first appellate court, exhaustively re-evaluated the evidence and rejected the prison authorities' escape and fall-from-a-height theory as an afterthought, noting the medical consensus that injuries could not be explained by a fall, the shifting signals of senior officers, and the suspicious 'discharge' entries in the Gate Register. It accepted the evidence of the single convict witness Mwirichia after careful scrutiny and corroboration. On that basis the appeals of the first four appellants, who were on duty and had the deceased in their custody, failed, the court invoking section 111(1) of the Evidence Act. The appeals of the fifth to ninth appellants, who were off duty and merely responded to the alarm, succeeded: the Court held that responding to a siren does not establish participation, and their convictions rested on the discredited, contradictory kitchen evidence of Ng'ang'a and Kamotho. Their convictions were quashed, sentences set aside and they were set free. The Court affirmed the duty to give reasons for differing with assessors and condemned, though without prejudice, the failure to allow mitigation before sentence. Delivered at Nairobi on 26th April 2013.

Key legal issues

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01

Reliability of escape theory versus prosecution version of events

Holding

The escape and fall-from-a-height theory was an afterthought contradicted by the medical evidence, the changing signals of prison officers, the discharge entries in the Gate Register and the first appellant's inconsistent evidence on custody of keys

Reasoning

All three pathologists agreed that injuries on each body could not be explained by a fall from a height. Prison officers altered their accounts of a fierce fight, the victims were entered as 'discharged', and the makeshift-rope escape was logistically implausible. The court, re-evaluating the evidence as a first appellate court, concluded the deceased were led out of their cell by the first, second and third appellants and killed outside the wall.

p. 29
02

Conviction on the evidence of a single convict witness

Holding

Mwirichia's evidence, though that of a single convict witness given at night, was considered with the greatest care and found reliable, with corroboration from Anna Wanjira's evidence, Longit's signal, the medical reports and the Gate Register discharge entries

Reasoning

Section 143 of the Evidence Act requires no particular number of witnesses. The court applied the caution in Abdala Bin Wendo and Ndungu Kimanyi, sought supporting evidence, and found Mwirichia's account explained facts the escape theory could not - his own survival unharmed and Ipomai's escape.

p. 31
03

Participation of appellants who were not on duty and only responded to the alarm

Holding

The fifth to ninth appellants, who were not on duty and only responded to the siren, could not be convicted merely for responding; the trial judge's finding that all nine were at the scene was wrong, and their convictions rested on the discredited and mutually contradictory evidence of Ng'ang'a and Kamotho

Reasoning

The trial judge erred in treating response to an alarm as placing all nine accused at the scene of the crime. The evidence did not establish when the assault occurred or when each appellant arrived, nor any weapon tested for blood. The kitchen evidence of Ng'ang'a and Kamotho was so inconsistent that no reliance could be placed on it. Benefit of doubt was therefore given to the five off-duty appellants.

p. 38
04

Evidential burden under section 111(1) of the Evidence Act

Holding

The first, second, third and fourth appellants, who had the deceased in their custody when they were last heard pleading for their lives, bore an evidential burden to explain the deaths, failing which an inference of guilt followed; this did not shift the legal burden of proof

Reasoning

The first appellant led the deceased from the cell with the second and third appellants; the fourth appellant ordered the killing and took Ipomai away. Since the victims were dead and unable to testify, section 111(1) required these custodians to explain the deaths. Their contradictory defences were rejected.

p. 34
05

Assessors' opinions and procedural irregularities

Holding

The judge gave adequate reasons for rejecting the assessors' not-guilty opinions; hearing past 5.00 p.m. was by consent and proper; failure to allow mitigation before sentence was an error but occasioned no prejudice; the anomaly in plea-taking was a curable mistake on the face of the record

Reasoning

The law requires only that reasons be given for differing with assessors, with no threshold. The extension of sitting hours was consented to by all counsel. The plea anomaly was never raised by counsel during a year-long hearing. The absence of mitigation was wrong in principle but did not prejudice appellants whose convictions were not reduced to manslaughter.

p. 40

Legal principles established

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  • A person is required to consider with the greatest care the evidence of a single witness, and a conviction may nevertheless proceed on the evidence of a convict once his antecedents are considered and supporting evidence sought
  • Circumstantial evidence can justify guilt only where the inculpatory facts are incompatible with innocence and incapable of explanation on any other reasonable hypothesis
  • Merely responding to an alarm as required by regulation does not amount to participation in a crime or formation of common intention; only those who respond and take part in the illegal action knowing it is illegal may be punished
  • Where persons in custody of the deceased, especially where the deceased are unavailable to testify, fail to explain what happened, an inference of guilt may be drawn under section 111(1) of the Evidence Act without shifting the legal burden of proof
  • When a trial judge disagrees with the assessors' opinion he must give a reason or reasons, but the law prescribes no threshold and the reasons need not satisfy the accused or the appellate court
  • Even in capital offences, a trial court is duty bound after pronouncing judgment to allow the accused to mitigate and to record the mitigation before sentencing

Court orders

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  1. 1.The appeals of the first, second, third and fourth appellants are dismissed
  2. 2.The appeals of the fifth, sixth, seventh, eighth and ninth appellants are allowed
  3. 3.Each conviction of the fifth to ninth appellants is quashed and each sentence is set aside
  4. 4.Each of the five successful appellants is set free forthwith unless otherwise lawfully held

Authorities

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Legislation

  • Penal CodeSection 203
  • Penal CodeSection 204
  • Penal CodeSection 206
  • Penal CodeSection 21
  • Penal CodeSection 296(2)
  • Criminal Procedure CodeSection 169(1) and (2)
  • Criminal Procedure CodeSection 199
  • Criminal Procedure CodeSection 190
  • Evidence Act (Cap 80)Section 111(1)
  • Evidence Act (Cap 80)Section 143
  • Evidence Act (Cap 80)Section 6
  • Evidence Act (Cap 80)Section 33 as read with Section 77
  • Constitution of KenyaSection 77
  • Prisons ActDefinition of discharge

Cases cited (8)

  • Bukenya & Others v Uganda
    (1972) EA 349
  • Okeno v Republic
    (1972) EA 32
  • Abdala Bin Wendo and Another v R
    (1953) 20 EACA 166
  • Ndungu Kimanyi v Republic
    (1979) KLR 282
  • R v Kipkering arap Koskei and Another
    (1949) 16 EACA 135
  • Simon Musoke v R
    Criminal Appeal No. 188 of 1956
  • Okethi Okale v Republic
    (1965) EA 535
  • Dorcas Jebet Ketter and Another v R
    Criminal Appeal No. 10 of 2012
On appeal from
High Court of Kenya at Nairobi
H.C.CR.C. No. 49 of 2002
Jurisdiction invoked
First appellate jurisdiction over conviction and sentence under the Criminal Procedure Code (appellate review of High Court murder convictions)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Jacob Muthee & 8 others v Republic [2013] KECA 332 (KLR)", Case Analysis (2013). Criminal Appeal 259, 255-257, 261 & 275 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/332/eng@2013-04-26

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