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Court of AppealPartially AllowedCriminal Appeal No. 498 of 2010· [2013] KECA 368 (KLR)

Andrew Njeru Makunyi & another v Republic [2013] KECA 368 (KLR)

Court of Appeal of Kenya
24 January 2013
EGE. M. GithinjiWKW. KaranjaDavid Kenani MaragaD. K. Maraga
1,176 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld one murder conviction but freed a second man whose evidence showed he tried to stop the attack.

What this practically means

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Executive summary

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This is a unanimous judgment of the Court of Appeal at Mombasa (Githinji, Karanja and Maraga, JJ.A.) delivered on 24 January 2013 in a first appeal against conviction and sentence imposed by Sergon, J. of the High Court at Mombasa on 29 October 2010 in HCCR Case No. 31 of 2007. The two appellants had been convicted, with a third assailant (Oscar, never apprehended), of the murder of Cyprian Kaburu, who was stabbed outside a palm wine bar on 18 October 2002 and died two days later, and each was sentenced to death. The main ground of appeal was the credibility of identification evidence by two key witnesses who claimed to have seen the assault by light from a pressure lamp. Re-evaluating the evidence, the Court held the identification evidence consistent and reliable as against the first appellant, who was found to have held the deceased while Oscar stabbed him; his appeal was dismissed. However, the same witnesses' evidence did not connect the second appellant to the stabbing; indeed one witness indicated he tried to separate the fighters, showing dissociation from the acts of Oscar and the first appellant. The Court allowed the second appellant's appeal, quashed his conviction, set aside the death sentence, and ordered his immediate release unless otherwise lawfully held. No costs order was made. The judgment binds lower courts on the point that evidence showing an accused dissociated himself from co-assailants' actions negates liability on a common intention basis.

Key legal issues

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01

Credibility and reliability of identification evidence at night

Holding

The identification evidence of Gitonga and Njagi was consistent in material respects and was corroborated by the deceased's report to police and by Makucha, supporting the trial court's finding.

Reasoning

Both witnesses knew the attackers previously, were close to the scene, and identified the assailants with the help of light from a pressure lamp. The trial judge also relied on the first appellant's own admission that the deceased served him at the pub. Their immediate report of the assault and naming of assailants, recorded by police, reinforced reliability. The first appellant's challenge on inconsistency and absence of an identification parade therefore failed.

p. 2
02

Criminal liability of the second appellant

Holding

The evidence of the key witnesses did not connect the second appellant to the stabbing and instead showed he tried to separate the combatants; his conviction could not stand.

Reasoning

Gitonga's testimony described only Njeru chasing, holding and the deceased being stabbed by Oscar; Njagi testified that Majera tried to separate the parties. On the court's own re-evaluation as a first appellate court, this evidence exonerated the second appellant and showed dissociation from the acts of Oscar and the first appellant. His appeal was accordingly allowed, conviction quashed and sentence set aside.

p. 3

Legal principles established

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  • Where evidence of a witness shows that an accused dissociated himself from the criminal actions of others, that accused cannot be convicted on the basis of common intention.

Court orders

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  1. 1.The appeal of the 1st appellant (Andrew Njeru Makunyi) is dismissed
  2. 2.The appeal of the 2nd appellant (Josephat Mutegi Viringo) is allowed
  3. 3.The 2nd appellant's conviction is quashed and sentence set aside
  4. 4.The 2nd appellant shall be set at liberty forthwith unless otherwise lawfully held

Authorities

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Legislation

  • Penal CodeSection 203
  • Penal CodeSection 204
On appeal from
High Court of Kenya at Mombasa
HCCR Case No. 31 of 2007
Jurisdiction invoked
First appellate jurisdiction over conviction and sentence on appeal from the High Court (Criminal Appeal No. 498 of 2010)

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, "Andrew Njeru Makunyi & another v Republic [2013] KECA 368 (KLR)", Case Analysis (2013). Criminal Appeal No. 498 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/368/eng@2013-01-24

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