Fabriano Utuku Mukira v Republic [2015] KECA 876 (KLR)

Court of Appeal of Kenya

17 March 2015

AVAlnashir Visram

M.K. Koome JOJ. Otieno-Odek

1,586 words in judgment

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The bottom line

Kenya's Court of Appeal refused a convicted murderer's request for psychiatric evidence on appeal because he could have raised mental capacity during his six-year trial.

What this practically means

Executive summary

This is a ruling of the Court of Appeal at Nyeri (Visram, Koome and Odek, JJ.A.) on a notice of motion by Fabriano Utuku Mukira, the appellant in Criminal Appeal No. 139 of 2010 against his conviction and death sentence on four counts of murder by the High Court at Embu (W. Karanja, J.) on 5th May 2010. Before his appeal could be heard, the applicant sought leave under Rules 29(1)(b) and 31 of the Court of Appeal Rules to adduce additional evidence of his mental status and to be examined by a psychiatrist concerning his mental condition at the time of the offences. He contended he had no recollection of the killings, had never been taken for psychiatric examination despite standard practice, and that the motiveless nature of the four murders and observations that he was not looking well during trial suggested mental incapacity. The State opposed, characterising the application as an afterthought by an accused represented throughout who never raised insanity. The court applied the two-limbed test from Mzee Wanjie: that the evidence could not have been obtained by reasonable diligence before and during the hearing, and that it would likely have affected the result. It found the mental-status matter was not new, the applicant and his counsel having squandered their opportunity to seek psychiatric examination or plead insanity during a trial that lasted over six years. Nor had it been shown the outcome would differ, given the offences were committed about 12 years earlier and no mental breakdown in custody was evidenced. The application was dismissed.

Key legal issues

Whether evidence of the applicant's mental status was 'additional evidence' admissible on appeal under Rule 29

Holding

The court held the mental-status evidence was not new matter; it was available and could have been raised at trial, so the first condition of reasonable diligence was not satisfied

Reasoning

The applicant was represented by counsel throughout a trial lasting over six years, never raised mental capacity, sought only adjournments on abdominal pains, declined to give defence evidence, and offered no submissions. Counsel had opportunity to apply for psychiatric examination or plead insanity but refused or neglected to do so. Accordingly the application was an afterthought introduced long after a trial that had been tried and concluded.

p. 3

Whether the proposed evidence would have been likely to affect the result

Holding

The court found no demonstration that the outcome would have differed, given the 12-year delay and absence of any claimed mental breakdown in custody

Reasoning

The offences were committed about 12 years earlier. The applicant had been incarcerated throughout and presented no material showing mental breakdown in prison. The court could not see how a mental examination conducted 12 years after the offence could be meaningful or what result it would yield, leaving its evidential value doubtful.

p. 3

Legal principles established

Leave to adduce additional evidence on appeal requires proof both that the evidence could not have been obtained by reasonable diligence before and during the hearing, and that it would likely have affected the result

Court orders

1.The notice of motion seeking leave to adduce additional evidence of the applicant's mental status and an order for psychiatric examination is dismissed

Authorities

Legislation

Court of Appeal RulesRule 29(1)(a) and (b)
Court of Appeal RulesRule 31
Penal CodeSection 203
Penal CodeSection 204

Cases cited (1)

Mzee Wanjie and 93 Others v A. K. Sakwo, A. C. Kanyorati, S. W. Kibogo and William Gachiringa
(1982-88) 1 KAR 462

On appeal from: High Court of Kenya at Embu; H.C.CR.C. No. 23 of 2003
Jurisdiction invoked: Rules 29(1)(a) and (b) and 31 of the Court of Appeal Rules (appeal from superior court exercising original jurisdiction)

Key timeline

Practical implications

Frequently asked questions

Later judgments citing this (2)

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Mauti v Republic (Criminal Appeal 310 of 2019) [2025] KECA 641 (KLR)
[2025] KECA 641 (KLR)4 Apr 2025followed
C W N v B N [2015] KECA 317 (KLR)
[2015] KECA 317 (KLR)16 Oct 2015followed

Cite this brief

Caselaw, "Fabriano Utuku Mukira v Republic [2015] KECA 876 (KLR)", Case Analysis (2015). Criminal Appeal No. 139 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/876/eng@2015-03-17

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