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Court of AppealDismissedCriminal Appeal No. 509 of 2010· [2014] KECA 862 (KLR)

Mabel Kavati & Another v Republic

Court of Appeal of Kenya
31 January 2014
RNR. N. NambuyePKP. O. KiageJMJ. Mohammed
9,514 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 upheld two murder convictions and death sentences, confirming that circumstantial evidence and a corroborated retracted confession can sustain a murder conviction.

What this practically means

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Executive summary

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This is a single judgment of the Court of Appeal at Nairobi (Nambuye, Kiage and Mohammed, JJ.A) dismissing in its entirety the appeals of Mabel Kavati and Felix Savanyi Kwesha against their convictions and death sentences for the murder of Father Giuseppe Bertaina at the Consolata Institute of Philosophy on 16th January 2009, as convicted by Lesiit J on 22nd October 2010. Exercising its first appellate duty under Rule 29(1)(a) of the Court of Appeal Rules to re-appraise the evidence afresh, the Court clustered the eight grounds of appeal into six issues. It held the trial judgment complied with Section 169(1) of the Criminal Procedure Code despite not numbering the issues for determination. On circumstantial evidence, it applied the Sawe and Kariuki Karanja standards and found the evidence - recognition of the second appellant as a former student, sighting of the trio on the corridor, flight when challenged, and stolen cheques found in the sentry box where the first appellant was detained - pointed irresistibly to guilt. It accepted the M'Inanga principle that a retracted confession is weak evidence requiring corroboration, but found sufficient corroboration in the recognition evidence, making the statement safe to rely on for both the maker and his accomplice. Common intention under Section 21 of the Penal Code was inferred from the trio's joint conduct. The fair-hearing complaint under the repealed Section 77 of the Constitution failed, as did the complaints that the trial judge exploited weaknesses in the defence or substituted her own theories for evidence. The convictions and sentences were affirmed.

Key legal issues

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01

Compliance with Section 169(1) Criminal Procedure Code

Holding

The trial judgment complied; issues need not be set out in numerical order if points for determination, decisions and reasons are discernible.

Reasoning

The Court examined the impugned judgment against the statutory prerequisites and found the evidence set out in detail, applicable principles identified and applied, and conclusions drawn on time of death, identification, malice aforethought and common intention, notwithstanding the absence of a numbered list of issues.

p. 8
02

Sufficiency of circumstantial evidence

Holding

The circumstantial evidence placed both appellants at the scene and pointed irresistibly to their guilt.

Reasoning

The Court found the witnesses credible, the trio's presence established, flight upon challenge evidencing guilty conduct, the stolen cheques found in the sentry box where the first appellant was detained, and no innocent explanation for entry. Even discounting the cheques, the remaining evidence connected the first appellant to the murder.

p. 10
03

Reliance on a retracted confession

Holding

A retracted confession requires corroboration; here the recognition evidence and other circumstances corroborated the second appellant's statement, making it safe to rely on.

Reasoning

The Court agreed with the appellant's counsel on the M'Inanga principle but found corroboration in the evidence of PW3, PW7 and PW10 on the number and identity of assailants, the manner of the killing and the flight of the trio, so the retracted statement could safely found conviction of both the maker and his accomplice.

p. 11
04

Common intention under Section 21 of the Penal Code

Holding

Common intention was established; where persons combine for an unlawful purpose and death results, all present are guilty of murder.

Reasoning

The three perpetrators entered stealthily, hovered awaiting opportunity, entered only the deceased's office, robbed and killed, and fled together. Their conduct demonstrated common intention; it matters not which of them performed the fatal act.

p. 12
05

Fair hearing under Section 77 of the repealed Constitution

Holding

The trial was fair: counsel were assigned, plea taken, witnesses cross-examined, defences tendered and submissions made.

Reasoning

The Court surveyed the record and found all elements of a fair hearing under the repealed Section 77 satisfied, including adequate time, cross-examination of the 17 prosecution witnesses, and the right to give sworn or unsworn evidence.

p. 12
06

Use of weaknesses in defence to strengthen prosecution case

Holding

The trial judge did not use the defences to boost the prosecution case; the prosecution evidence independently established guilt.

Reasoning

The Court confirmed the general Kinuthia principle that a witness who creates an impression of dishonesty should be treated as unreliable, but found PW3 and PW5's evidence supported by other testimony and the corroborated confession, leaving no doubt as to truthfulness.

p. 13

Legal principles established

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  • A first appellate court must conduct a fresh, thorough and exhaustive re-appraisal of all the evidence and reach its own independent conclusions, making allowance for the fact that it did not see or hear the witnesses.
  • A retracted confession is the weakest evidence and cannot found a conviction absent corroborative evidence.
  • Circumstantial evidence sustains a conviction only where the inculpatory facts are incompatible with innocence and incapable of explanation on any other reasonable hypothesis than guilt.
  • Under Section 21 of the Penal Code, common intention may be inferred from presence, actions and omission to dissociate from the assault; where death occurs in prosecution of a common unlawful purpose, all present are guilty of murder.

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.The convictions and sentences imposed by the High Court (death sentence) are upheld

Authorities

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Legislation

  • Penal CodeSection 203 as read with Section 204
  • Penal CodeSection 21
  • Penal CodeSection 206
  • Criminal Procedure Code (Cap 75)Section 169(1)(2)
  • Constitution of Kenya (repealed)Section 77(1) and (2)
  • Court of Appeal RulesRule 29(1)(a)

Cases cited (14)

  • Kinuthia versus Republic
    [2003] KLR 55

    A witness who creates an impression of not being straightforward should be treated as unreliable and his evidence not acted upon.

  • M'Inanga versus Republic
    [1985] KLR 294

    A retracted confession is weak evidence and cannot found a conviction absent corroboration.

  • Wibiro versus Republic
    [1960] EA 184

    Cited by appellant's counsel on absence of evidence placing appellants at the scene.

  • Okeno versus Republic
    [1972] EA 32

    Duty of first appellate court to re-examine evidence, weigh conflicts and draw its own conclusions.

  • Pandya versus Republic
    [1957] EA 36

    Entitlement of an appellant to a fresh and exhaustive examination of the evidence.

  • Shantilal M. Ruwala versus Republic
    [1957] EA 570

    First appellate court must itself weigh conflicting evidence and draw its own conclusions.

  • Peters versus Sunday Post
    [1958] EA 424

    Appellate review of evidence is exercised with caution; court will intervene where trial judge plainly went wrong.

  • Muthoka and another versus Republic
    [2008] KLR 297

    Duty of first appellate court to analyze evidence and reach independent conclusion, making allowance for not seeing witnesses.

  • Paul versus the Republic
    [1980] KLR 100

    Inculpatory facts in circumstantial evidence must be incompatible with innocence.

  • Kariuki Karanja versus Republic
    (1986) KLR 190

    Circumstantial evidence must point irresistibly to the accused; burden remains on prosecution.

  • Sawe versus Republic
    [2003] KLR 354

    Principles on circumstantial evidence, burden of proof and that suspicion cannot found conviction.

  • Njoroge versus Republic
    [1983] KLR 197

    Common intention: all present combining for unlawful purpose are guilty of murder though not actually aiding or abetting.

  • Rex versus Tabule Yenka and S/o Kirya
    [1943] 10 EACA 51

    Common intention may be inferred from presence, actions and omission to dissociate from the assault.

  • Rex versus Mikaeri Kyeyune and 4 others
    8 EACA 84

    Any person identified as having taken part in the beating is linked by common intention.

On appeal from
High Court of Kenya at Nairobi
H.C.CR.C No. 6 of 2009
Jurisdiction invoked
First appellate jurisdiction under Rule 29(1)(a) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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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, "Mabel Kavati & Another v Republic", Case Analysis (2014). Criminal Appeal No. 509 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/862/eng@2014-01-31

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