Abdi Ali Bare v Republic
The bottom line
#Kenya's Court of Appeal quashed an attempted murder conviction because prosecutors never proved the accused could or did aim the rifle, though the firearm conviction stood.
What this practically means
#Executive summary
#Key legal issues
#Mens rea and actus reus of attempted murder
The prosecution must prove both an intention to kill and an overt act sufficiently proximate to murder; being armed and telling the victim to prepare to die, without evidence of aiming, did not establish the actus reus.
The court drew on section 388 of the Penal Code and authority distinguishing mere preparation from attempt. The only direct witnesses gave sketchy evidence and neither testified that the appellant took aim at the complainant. With the appellant's left hand injured and in a sling, the courts below should have addressed whether he could have aimed and fired an AK 47 rifle with one hand. This omission left a real doubt as to whether any act immediately connected with murder was proved.
Effect of quashed ammunition conviction on the attempted murder conviction
Since the attempted murder charge depended on possession of the same 11 rounds of ammunition that the trial court found not to exist, the attempted murder conviction could not stand once the ammunition conviction was quashed.
The High Court quashed the conviction for possession of the 11 rounds because the ballistics examiner disowned the rounds produced in court as exhibits. Both charges rested on those rounds. The court reasoned that if the appellant was not proved to possess the ammunition, the prosecution had proved only possession of the rifle, raising the question how he attempted murder with a rifle but no ammunition. The discredited expert report could not sustain either conviction.
Limits of a second appeal and treatment of concurrent findings
A second appeal is confined to matters of law under section 361 of the Criminal Procedure Code, and the Court must pay proper homage to concurrent factual findings of the lower courts.
The court cited Karani v Republic for the confinement of second appeals to issues of law, and Boniface Kamande & 2 Others v Republic for the duty to respect concurrent findings of fact. Interference is warranted only where there was no evidence at all for the findings or the evidence was such that no reasonable tribunal could rely on it. Here the courts' omissions created legal doubt as to the safety of the conviction, justifying intervention.
Conviction for possession of a firearm without a certificate
The conviction and 5-year sentence for possession of the AK 47 rifle without a firearms certificate were properly founded and were upheld.
Unlike the ammunition charge, the possession of the rifle was proved independently and safely; the rifle was recovered from the appellant and was examined and found capable of being fired. The court saw no basis for disturbing the trial court's conviction or the 5-year sentence imposed, which the first appellate court had upheld.
Legal principles established
#- On a second appeal, the Court of Appeal is bound by concurrent findings of fact of the two courts below and may interfere only where there was no evidence at all for the findings or the evidence was such that no reasonable tribunal could base a decision on it.
- In a charge of attempted murder, the intent to kill is the principal ingredient of the crime and nothing less than an intention to kill will suffice.
- The actus reus of attempt requires a distinction between mere preparation and an act sufficiently proximate to the offence; the act must be immediately and not remotely connected with the commission of the offence.
- A conviction on one charge founded on the same exhibits cannot stand where the court has effectively found those exhibits not proved to exist; an expert report discredited on that point cannot sustain conviction on either charge.
- The first appellate court has a duty to exhaustively re-evaluate the evidence, including the accused's defence; failure to do so leaves doubts that render a conviction unsafe.
Court orders
#- 1.Appeal allowed to the extent that the conviction for attempted murder and the sentence of life imprisonment are set aside
- 2.Conviction and sentence of 5 years imprisonment for possession of a firearm without a firearms certificate upheld
- 3.Appellant to be set at liberty forthwith unless otherwise lawfully detained, having served more than the imposed sentence
- On appeal from
- High Court of Kenya at Nairobi
- H.C.CR.A. No. 19 of 2005
- Jurisdiction invoked
- Second appeal to the Court of Appeal confined to matters of law under section 361 of the Criminal Procedure Code
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdi Ali Bare v Republic", Case Analysis (2015). Criminal Appeal No. 588 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/794/eng@2015-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.