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Court of AppealPartially AllowedCriminal Appeal No. 67 of 2013· [2015] KECA 938 (KLR)

Freda Kanui Musa alias Frida Karugu v Republic

Court of Appeal of Kenya
26 February 2015
AVAlnashir VisramMartha Karambu KoomeMartha KoomeJOJ. Otieno-Odek
4,384 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 a murder conviction but replaced the death sentence with life imprisonment because the convicted woman was pregnant.

What this practically means

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Executive summary

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The appellant was convicted of the murder of Mercy Kagwira, committed on 25th December 2008 at Munithu Location, Meru Central, and sentenced to death by the High Court at Meru (Lesiit, J.). Two eyewitnesses, PW2 and PW3, testified that the appellant came out of the house of one Mwirigi, drew a knife tucked at her waist and stabbed the deceased in the neck, leaving the knife embedded; the deceased died within minutes. The appellant's defence was that the deceased attacked her and that she fell on the knife during a struggle. On first appeal, the Court of Appeal (Visram, Koome & Otieno-Odek, JJ.A.) rehearsed its duty to re-examine the evidence afresh. It upheld the finding on the actus reus, holding identity proved beyond reasonable doubt. On mens rea, it held that a person who arms herself with a knife and instigates a quarrel cannot plead that self-instigated quarrel as provocation, whether as a defence to murder or to reduce it to manslaughter; knowledge or indifference under Section 206(b) of the Penal Code established malice aforethought. The Court dismissed the challenge to the constitutionality of the mandatory death sentence, following Joseph Njuguna Mwaura. However, it held that because the appellant was pregnant, the death sentence was illegal, and under Section 211 of the Penal Code substituted life imprisonment. The appeal against conviction was dismissed; the appeal against sentence succeeded. The Court also directed an investigation into how the appellant conceived twice while in prison custody.

Key legal issues

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01

Actus reus and identity of the assailant

Holding

Identity was proved beyond reasonable doubt; the appellant committed the actus reus of murder.

Reasoning

The offence occurred in broad daylight at about 9.00 am. PW2 and PW3 gave eyewitness accounts identifying the appellant as the person who stabbed the deceased. She never escaped the scene and was arrested at the locus in quo. The Court found no dispute as to identity and upheld the trial Judge's finding on the actus reus.

p. 5
02

Mens rea and provocation

Holding

Malice aforethought was proved; the self-instigated quarrel could not amount to provocation reducing murder to manslaughter.

Reasoning

The appellant carried a knife tucked at her waist and used it on the deceased. By arming herself and instigating the quarrel, she was taking control of the situation and acting intentionally. Under Section 206(b) of the Penal Code, knowledge that the act would probably cause death or grievous harm, or indifference to that outcome, constitutes malice aforethought sufficient for murder.

p. 5
03

Constitutionality of the death sentence

Holding

The contention that the mandatory death sentence for murder is unconstitutional was dismissed.

Reasoning

Following Joseph Njuguna Mwaura & 2 Others v Republic, in which this Court held Godfrey Ngotho Mutiso was decided per incuriam, the Court reaffirmed that murder, treason and robbery with violence carry the mandatory sentence of death, and rejected the Article 26(1) and Article 50(2) challenge.

p. 6
04

Pregnancy and the death sentence

Holding

The death sentence was illegal because the appellant was pregnant; life imprisonment substituted under Section 211 of the Penal Code.

Reasoning

Section 211 of the Penal Code mandates life imprisonment instead of death for a woman convicted of a capital offence found to be pregnant. Although the trial court was functus officio when informed of the pregnancy after sentencing, the appellate court held the death sentence meted out was illegal and substituted life imprisonment.

p. 6

Legal principles established

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  • A first appellate court must re-examine the evidence afresh, make its own findings and draw its own conclusions, while allowing for the trial court's advantage of seeing and hearing witnesses.
  • A person who arms herself with a dangerous weapon and instigates a quarrel cannot plead provocation arising from that self-instigated quarrel, whether as a defence to murder or to reduce it to manslaughter.
  • Knowledge that an act will probably cause death or grievous harm, or indifference to that outcome, constitutes malice aforethought under Section 206(b) of the Penal Code.
  • A pregnant woman cannot lawfully be sentenced to death; under Section 211 of the Penal Code the sentence is life imprisonment.

Court orders

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  1. 1.Appeal against conviction dismissed; conviction for murder upheld
  2. 2.Death sentence set aside and substituted with a term of imprisonment for life under Section 211 of the Penal Code
  3. 3.Copy of the judgment sent by the Deputy Registrar to the Commandant of Prisons at Headquarters in Nairobi to investigate how a woman in remand or prison can get pregnant

Authorities

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Legislation

  • Penal CodeSection 203
  • Penal CodeSection 204
  • Penal CodeSection 206(b)
  • Penal CodeSection 211
  • Penal CodeSection 212(2)
  • Penal CodeSection 40
  • Penal CodeSection 60
  • Penal CodeSection 296(2)
  • Penal CodeSection 297(2)
  • Constitution of KenyaArticle 26(1)
  • Constitution of KenyaArticle 50(2)

Cases cited (11)

  • R -v- Okwany & Another
    (2003) KLR 2005 Vol. 1 833-836

    Provocation reducing murder to manslaughter

  • Veronica Anyango Okumu – v- R.
    (2003) CA. (2009) Vol 47 at p.35

    Provocation; distinguished by the State as involving co-wives

  • Alex Mzee Landi – v- R.
    (2007) CA (2008) vol. 43 pgs 43-44

    Provocation reducing murder to manslaughter

  • Omoro – v- R.
    (1987) KLR 1994 at pages 496-504

    Provocation reducing murder to manslaughter

  • Muthoka and another versus Republic
    (2008) KLR 297

    Duty of first appellate court to revisit and analyse evidence independently

  • OKENO V. R.
    [1972] EA 32 at p. 36

    First appellate court must conduct fresh, exhaustive examination of the evidence

  • PANDYA V. R.
    [1957] EA 336

    Entitlement of appellant to fresh examination of evidence as a whole

  • SHANTILEL M. RUWAL V. R.
    [1957] EA 570

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

  • PETERS -V- SUNDAY POST
    [1958] EA 424

    Allowance for trial court's advantage of hearing and seeing witnesses

  • Joseph Njuguna Mwaura & 2 Others v Republic
    Criminal Appeal No 5 of 2008

    Mandatory death sentence for capital offences; Mutiso decision per incuriam

  • Godfrey Ngotho Mutiso v R.
    [2010] eKLR Criminal Appeal 17 of 2008

    Held per incuriam in so far as it granted sentencing discretion for capital offences

On appeal from
High Court of Kenya at Meru
H.C. Cr. Case No. 3 of 2009
Jurisdiction invoked
First appellate jurisdiction over a High Court criminal appeal (Criminal Appeal No. 67 of 2013)

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, "Freda Kanui Musa alias Frida Karugu v Republic", Case Analysis (2015). Criminal Appeal No. 67 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/938/eng@2015-02-26

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