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Court of AppealPartially AllowedCriminal Appeal No. 352 of 2012

Ngari v Republic (Criminal Appeal 352 of 2012) [2014] KECA 424 (KLR)

Court of Appeal of Kenya
30 July 2014
AVAlnashir VisramMartha Karambu KoomeMartha KoomeJOJ. Otieno-Odek
2,174 words in judgment
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The bottom line

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Kenya's Court of Appeal downgraded a murder conviction to manslaughter and replaced the death sentence with 15 years because the killer's drunkenness was ignored.

What this practically means

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Executive summary

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The appellant was convicted of the murder of David Munene Teresio, who was fatally stabbed in the neck with a Somali sword at Karumandi Trading Centre on 18th July 2009, and was sentenced to death by the High Court at Embu (Ong'undi, J.). On appeal to the Court of Appeal at Nyeri (Visram, Koome & Odek, JJ.A), the appellant's sole counsel argued that the trial court failed to consider his defence of intoxication under Section 13(4) of the Penal Code and that the evidence did not establish malice aforethought. The Court affirmed that the first two elements of murder - death and its cause, and the commission of the unlawful act - were established by eyewitness evidence, the postmortem, and recovery of the blood-stained weapon. The dispute centred on malice aforethought. The Court found that the trial judge, though mentioning the appellant's drunkenness, made no finding on whether intoxication deprived the appellant of the capacity to form the specific intention to kill. Evidence that the appellant drank in three bars, stabbed the deceased silently and without provocation, and was found drunk and asleep led the Court to conclude the prosecution failed to prove malice aforethought. The conviction for murder was set aside and substituted with manslaughter, and the death sentence was replaced with 15 years imprisonment running from 26th June 2012. The appeal thus partially succeeded: the conviction and sentence were varied rather than overturned entirely.

Questions the Court framed

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

  1. 1.Whether the evidence established that the appellant had malice aforethought when he stabbed the deceased
  2. 2.Whether the defence of intoxication under Section 13(4) of the Penal Code should have been taken into account in determining whether the appellant could form the specific intention to kill
  3. 3.Whether the conviction for murder should stand or be substituted with a conviction for manslaughter

Key legal issues

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01

Elements of murder that the prosecution must prove

Holding

The prosecution must prove beyond reasonable doubt the death and its cause, that the accused committed the unlawful act causing death, and malice aforethought

Reasoning

The Court adopted the established formulation of the three elements of murder, citing Nyambura & Others v Republic. It found the first two elements proved by eyewitness evidence of the stabbing, the postmortem evidence on cause of death, and the recovery of the blood-stained murder weapon from the appellant. The contested element was malice aforethought.

p. 3
02

Whether intoxication under Section 13(4) of the Penal Code negatived malice aforethought

Holding

The trial court erred by failing to make a finding on intoxication and its effect on the appellant's capacity to form the intention to kill; on the evidence, malice aforethought was not proved

Reasoning

The Court noted the trial judge mentioned drunkenness but made no finding on whether the appellant could form mens rea. Evidence that the appellant drank in three bars and was found drunk and asleep, coupled with the unprovoked, silent stabbing, led the Court to conclude the prosecution failed to prove that, despite drunkenness, the appellant formed the requisite intention to kill.

p. 4

Legal principles established

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  • Where there is evidence of intoxication, a trial court is required to take it into account in determining whether the accused could form the specific intention required for murder, and a failure to make a finding on intoxication and mens rea is an error
  • Intoxication may negate malice aforethought even where it does not amount to insanity

Court orders

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  1. 1.The appellant's conviction for murder is set aside and substituted with a conviction for manslaughter
  2. 2.The death sentence imposed by the High Court is set aside
  3. 3.The appellant is sentenced to 15 years imprisonment to run from 26th June, 2012

The bench

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

AV
majority
Martha Karambu Koome
Martha KoomeJA
Currently serving
majority
JO
majority
On appeal from
High Court of Kenya at Embu
H.C.CR.C No. 16 of 2009
Jurisdiction invoked
First appellate appeal under the Criminal Procedure Code (appeal against conviction and sentence for murder from the High Court)

Relief refused

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Full acquittal as sought by the appellant

The Court found the evidence established manslaughter notwithstanding the absence of malice aforethought

p. 4

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.

we find that the appeal herein has merit to the extent we set aside the appellant's conviction for murder and substitute it with a conviction of manslaughter. We also set aside the death sentence meted to him by the trial court. We sentence the appellant to 15 years imprisonment to run from 26th June, 2012 when the appellant was convicted and sentenced by the High Court
p. 4Final orders - substitution of conviction and sentence
Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence
p. 3Statutory provision on intoxication
If there be evidence of drunkenness or intoxication then under section 13(4) of the Penal Code, a trial court is required to take that into account for the purpose of determining whether the person charged was capable of forming any intention
p. 3Duty of trial court to consider intoxication evidence
For the offence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought
p. 3Elements of murder

Issues in the judgment

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minor

The judgment states the appellant stabbed the deceased 'with a knife' although the charge narrative and all other evidence refer to a Somali sword

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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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, "Ngari v Republic (Criminal Appeal 352 of 2012) [2014] KECA 424 (KLR)", Case Analysis (2014). Criminal Appeal No. 352 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/424/eng@2014-07-30

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