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Court of AppealDismissedCriminal Appeal No. 303 of 2011

Nana M’ameru & 2 others v Republic [2014] KECA 657 (KLR)

Court of Appeal of Kenya
30 April 2014
1,953 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 dismissed three murder appeals, ruling that a grudge, an alibi, or witnesses being related to the victim cannot overturn solid eyewitness testimony.

What this practically means

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Executive summary

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This is a first appeal to the Court of Appeal (Nyeri, sitting at Meru) against the conviction of the three appellants for the murder of John Mugambi and their sentences of death, imposed by Lesiit, J. of the High Court at Meru on 8th December 2011 in H.C.CR.C No. 6 of 2006. The prosecution case rested on four eye witnesses who consistently described the appellants cutting the deceased with slashers in broad daylight on 19th March 2005. The appellants, through counsel, advanced three grounds: the existence of a grudge between them and the deceased's family, the alleged disregard of their defence testimony, and the claimed partiality of prosecution witnesses who were related to the deceased, each of whom had also raised an alibi. The State maintained that the eye witness testimony was consistent, corroborative and consistent with the post mortem findings. The Court, in a single judgment of the whole bench, discharged its first appellate duty to re-evaluate the evidence and reach its own conclusions. It held that the consistent eye witness account identified each appellant as the attacker and displaced and disproved the alibi defences, adopting Ramadhan Kombe v Republic. Drawing on Daniel Muthee v R, it held that the grudge did not negate malice aforethought, which could be inferred under Section 111 of the Evidence Act from the appellants' unexplained conduct in cutting the deceased with slashers. It further held that the relationship of the witnesses to the deceased did not affect their eye witness evidence and caused the appellants no prejudice. The appeal was dismissed, affirming the convictions and sentences.

Questions the Court framed

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

  1. 1.Whether the alibi defence raised by the appellants was adequately considered and evaluated by the trial court
  2. 2.Whether the grudge, if any, that existed between the deceased and the appellants is a defence to the charge of murder
  3. 3.Whether the fact that the four prosecution eye witnesses were related to the deceased undermined their testimony

Key legal issues

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01

Sufficiency of consideration of the alibi defence

Holding

The trial Judge did not err in considering the alibi defence and concluding it was an afterthought displaced by watertight eye witness evidence.

Reasoning

The Court re-evaluated the testimony of the four eye witnesses and found the appellants were properly identified and recognized as the persons who cut and killed the deceased. The eye witness account placed each appellant at the scene, so the alibi was disproved. The Court adopted Ramadhan Kombe v Republic, where the weapon and cause of death were obvious and there was no other version of how the deceased was killed nor by whom.

p. 3
02

Whether a grudge defeats the charge of murder

Holding

A grudge between the deceased and the appellants does not negate malice aforethought; cutting the deceased with slashers evidenced an intention to kill.

Reasoning

The Court adopted Daniel Muthee v R on malice aforethought under Section 206(b) of the Penal Code, holding that setting upon the deceased and cutting him with a sharp instrument shows knowledge that death or grievous harm would result. The grudge was irrelevant where the evidence showed the appellants cut the deceased with slashers intending to kill him.

p. 4
03

Testimony of related eye witnesses

Holding

Relationship of the eye witnesses to the deceased did not affect their evidence and caused the appellants no prejudice.

Reasoning

The Court found the evidence of the four eye witnesses overwhelming and cogent, consistent and corroborative, and delivered in broad daylight. The trial Judge had examined their demeanour and found them honest and worthy of belief, and the defence had not cross-examined on the issue, which the trial court found to be an afterthought.

p. 4

Legal principles established

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  • On a first appeal, the Court of Appeal has a duty to re-evaluate the evidence on record and come to its own independent conclusions.
  • An alibi defence is displaced where consistent and credible eye witness testimony places the accused at the scene and identifies him as the offender.
  • A prior grudge between accused and deceased is not a defence to murder where the evidence establishes the requisite malice aforethought.
  • A court may infer malice aforethought from the unexplained conduct of the accused under Section 111 of the Evidence Act.
  • The fact that eye witnesses are related to the deceased does not by itself affect the probative value of their identification of the attackers where no prejudice is shown.

Court orders

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  1. 1.The appeal against conviction and sentence is dismissed
  2. 2.The conviction of the appellants for murder and the sentences of death imposed by the High Court stand

The bench

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

majority

Wrote the judgment

Martha Karambu Koome
Martha KoomeJA
Currently serving
majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Meru
H.C.CR.C No. 6 of 2006
Jurisdiction invoked
First appellate jurisdiction over a conviction and sentence from the High Court sitting on a murder trial (Criminal Appeal from the High Court)

Relief refused

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Setting aside the murder convictions and death sentences on the ground of a grudge between the appellants and the deceased's family

A grudge did not negate malice aforethought and the eye witness evidence remained overwhelming

p. 3

Discrediting the prosecution case because the eye witnesses were related to the deceased

The relationship of the witnesses did not affect what they saw as eye witnesses and the appellants suffered no prejudice

p. 4

Costs

No order as to costs is recorded 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.

This is a first appeal and it is our duty to re-evaluate the evidence on record and come to our own independent conclusions.
p. 3Duty of a first appellate court
We find that the eye witness account of PW1, PW2, PW3 and PW4 displaces and disproves the alibi raised by each of the appellants.
Alibi displaced by eye witness identification
by dint of Section 111 of the Evidence Act, Cap 80 of the Laws of Kenya, a court will be perfectly entitled to infer malice aforethought from the unexplained conduct of the appellants
p. 4Inference of malice aforethought
The upshot is that we find this appeal has no merit and is dismissed.
p. 4Final orders - dismissal of the appeal

Issues in the judgment

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minor

The judgment records no formal final orders section and makes no order as to costs; the dismissal is expressed only in the closing line of the judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Nana M’ameru & 2 others v Republic [2014] KECA 657 (KLR)", Case Analysis (2014). Criminal Appeal No. 303 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/657/eng@2014-04-30

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