Musili Tulo v Republic [2014] KECA 412 (KLR)

The record showed counsel objected to production of the statements on grounds they were obtained under duress. Once objection was raised, the trial court was duty-bound to order a trial within a trial and deliver a ruling before the statements were even marked for identification, since voluntariness is a matter of law for the judge alone and an aspect of fair trial. Further, both statements were recorded contrary to Section 25A(1) of the Evidence Act and the Confession Rules on recording officers, third-party presence, language and certification, and were therefore excluded.

The chain relied on by the trial court consisted of the confessions (excluded), the hat (supported only by three related witnesses with inconsistent descriptions and no finding on their credibility), the telephone call (unverified identity of caller and ownership of the number), and the evidence of Viata placing the appellant at home (a sole witness whose credibility was not assessed). The trial court also failed to consider co-existing circumstances that could weaken the inference, including the land dispute with the appellant's brother. The court held the offence was not proved beyond reasonable doubt.

The court held that the ADPP's submission that the estranged relationship provided motive was not the correct legal approach. Section 9(3) of the Penal Code renders motive immaterial to criminal responsibility unless expressly declared otherwise. Malice aforethought is the mens rea required for murder and was satisfied here by the nature of the assault. Motive may, however, feature as a link in the chain of presumptive proof where a case rests purely on circumstantial evidence, per Libambula v Republic.

The only evidence that the hat belonged to the appellant came from the deceased's uncle, brother and nephew, whose descriptions of the hat were not consistent, some not describing it at all. Despite a three-day search involving police and neighbours, there was no independent evidence on the hat. The trial court made no express finding on the credibility of these witnesses, and the Court of Appeal held itself entitled to interfere with that finding of fact.