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Court of AppealAllowedCriminal Appeal No. 414 of 2012· [2014] KECA 515 (KLR)

Omar & 5 others v Republic (Criminal Appeal 414 of 2012) [2014] KECA 515 (KLR)

Court of Appeal of Kenya
27 June 2014
EGE.M. GithinjiDMD.K. MusingaJMJ. Mohammed
5,149 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal freed six police officers convicted of murder, ruling that self-defence is judged by what a person honestly believed, not hindsight.

What this practically means

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Executive summary

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This is a first appeal to the Court of Appeal at Nairobi against the conviction and death sentence imposed by Ochieng, J. on six police officers for the murder of seven taxi operators shot dead along Naivasha Road, Kawangware, on 11th March 2010. The trial court had rejected the appellants' defence of self-defence, holding that the deceased were not armed with firearms and that the officers' indiscriminate shooting constituted a reckless use of firearms. On appeal, the Court reviewed the evidence of the confrontation, including the earlier dispute between taxi operators and boda boda operators, the warning shots fired, the crowd's refusal to disperse, and the recovery of only pangas, swords and a toy pistol at the scene. The core of the judgment concerns the legal test for self-defence under Section 17 of the Penal Code, which incorporates English Common Law. Relying on the Privy Council in Beckford and on DPP v Morgan and R v Williams, the Court held that the test is subjective: the accused is judged on his honest belief as to the facts, even if that belief was objectively unreasonable, and the prosecution must disprove self-defence where it is raised. The trial Judge had applied an objective test and therefore erred. The Court found that, in the circumstances - a night patrol in a crime-prone area, warning shots ignored, and an advancing crowd defying police orders - the appellants could reasonably have believed their lives were in danger. The Court allowed the appeal, quashed the murder convictions, set aside the death sentences, and ordered the appellants' release unless otherwise lawfully held.

Key legal issues

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01

The correct legal test for self-defence under Section 17 of the Penal Code

Holding

The trial court erred by applying an objective test. The common law test, as developed in DPP v MORGAN and BECKFORD v R, is subjective: the accused is judged according to his honest belief as to the facts, whether or not that belief was objectively reasonable.

Reasoning

Section 17 of the Penal Code imports the principles of English Common Law for force used in defence of person or property. The common law moved from the objective standard to a subjective test in DPP v MORGAN, a position reaffirmed by the Privy Council in BECKFORD v R and in R v WILLIAMS. The trial Judge rejected the appellants' defence because he applied an objective test; his attention was not drawn to the current common law position, and had it been, his decision would have been different.

p. 8
02

Whether the appellants reasonably believed their lives were in danger

Holding

Yes. On the facts - a night-time patrol in a crime-prone area, warning shots ignored, a crowd defying police orders and advancing while armed with pangas, swords and what looked like a gun - the appellants could reasonably have believed their lives were in danger.

Reasoning

The confrontation occurred at night with poor visibility. The appellants identified themselves and fired warning shots, but the deceased kept advancing. The officers had not been dispatched to quell a riot and had not been issued with plastic bullets. Given prevalent attacks on police officers by armed criminals, the Court held their belief that they were in danger of death or serious bodily injury was honestly held, and a police officer cannot wait until he is struck before striking in self-defence.

p. 7
03

Duty of the first appellate court

Holding

The first appellate court must re-evaluate, re-assess and re-examine the evidence tendered before the trial court and arrive at its own conclusions, while making allowance for the fact that it did not see or hear the witnesses.

Reasoning

Restating the classic Okeno principle, the Court affirmed that as the first appellate court it is enjoined to revisit the evidence afresh, but must remind itself that unlike the trial court it did not have the benefit of observing the demeanour of the prosecution witnesses and the appellants, and must make due allowance for that disadvantage in evaluating credibility findings.

p. 2

Legal principles established

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  • The test for self-defence imported into Kenya by Section 17 of the Penal Code via English Common Law is subjective: a person may use such force as is reasonable in the circumstances as he honestly believed them to be, judged by his mistaken belief of the facts whether or not that mistake was objectively reasonable.
  • Where self-defence is raised in a criminal trial, it is for the prosecution to disprove it, because the unlawfulness of the violence is an essential element of all crimes of violence.
  • A person, including a police officer, need not wait until he is struck before striking in self-defence.

Court orders

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  1. 1.Convictions for murder against each of the appellants quashed
  2. 2.Death sentences passed by the trial court against each of the appellants set aside
  3. 3.Appellants set at liberty unless otherwise lawfully held

Authorities

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Legislation

  • Penal CodeSection 17
  • Penal CodeSection 203 as read with Section 204
  • Police ActSection 28

Cases cited (11)

  • Okeno v Republic
    (1972) E.A. 32
  • Palmer v R
    [1971] A.C. 814
  • R v McInnes
    55 Cr. App. R. 551
  • R v Deana
    2 Cr. App. R. 75
  • Robert Kinuthia Mungai v Republic
    (1982 – 88) 1 KAR 611
  • Robert Mungai v Republic
  • R v Shannon
    Crim. LR 438 (1980)
  • Beckford v Ford
    [1987] 3 ALL ER 425
  • DPP v Morgan
    [1975] 2 ALL ER 347
  • R v Williams
    [1987] 3 ALL ER 411
  • Anthony Njue Njeru v Republic
    [2006] eKLR
On appeal from
High Court of Kenya at Nairobi
HC. CR. C. No. 14 of 2010
Jurisdiction invoked
First appellate jurisdiction over a High Court criminal conviction (Court of Appeal, criminal appeal)

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, "Omar & 5 others v Republic (Criminal Appeal 414 of 2012) [2014] KECA 515 (KLR)", Case Analysis (2014). Criminal Appeal No. 414 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/515/eng@2014-06-27

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