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Court of AppealDismissedCriminal Appeal No. 129 of 2014· [2016] KECA 384 (KLR)

David Kimathi Ndatho v Republic [2016] KECA 384 (KLR)

Court of Appeal of Kenya
18 July 2016
PWP. N. WakiRNR. N. NambuyePKP. O. Kiage
2,141 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a murder appeal, confirming that a fresh trial before a new judge is a safeguard, not prejudice, and upholding the death sentence.

What this practically means

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Executive summary

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The Court of Appeal at Nyeri (sitting at Meru), comprising Waki, Nambuye and Kiage JJ.A, in a single judgment of the court, dismissed the appellant's appeal against his conviction for the murder of H M K and the death sentence imposed by the High Court at Meru (Lesiit J). The appellant had struck the deceased once on the head with a thick piece of timber during a night disturbance at the family homestead, in the presence of the deceased's young brother who recognized him in bright moonlight at about five metres. On appeal, counsel contended that the trial started de novo before a succeeding judge without affording the appellant the elections under Section 200 of the Criminal Procedure Code, that the identification evidence was not analyzed, that the judge shifted the burden of proof and created theories, and that the defence was wrongly rejected. The court held, contrary to the submissions of both counsel (the State having conceded), that a de novo trial is a safeguard rather than a prejudice, since prejudice under Section 200(4) arises only from conviction by a judge who recorded part of the evidence. Applying its first appellate duty as stated in Okeno v Republic, the court found the recognition evidence reliable; it found that although the judge erred in suggesting the appellant had waylaid the brothers, nothing turned on that, as the force of the blow established malice aforethought under Section 206 of the Penal Code, motive being unnecessary. The appellant's flight and proven lies corroborated the prosecution case per Ernest Abanga. The conviction and sentence were affirmed and the appeal dismissed on 18th July 2016.

Key legal issues

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01

Effect of a de novo trial ordered by a succeeding judge under Section 200 CPC

Holding

A trial de novo is a safeguard, not a prejudice; only conviction on part-heard evidence can ground a complaint under Section 200(4).

Reasoning

The court held both counsel and even the State misapprehended Section 200 case law. A de novo trial lets the new judge see and hear witnesses and assess credibility, and lets the accused challenge testimony afresh, realizing the protection in Section 200(3). Prejudice lies only in conviction by a judge who recorded part of the evidence.

p. 3
02

Evidence of identification by recognition under moonlight

Holding

The identification evidence was reliable; the witness was emphatic he could see the appellant clearly in very bright moonlight, corroborated by another witness and by the appellant's flight.

Reasoning

Performing its first appellate duty per Okeno v Republic, the court reappraised the evidence. Despite the cross-examination answer that 'it was dark', the witness was emphatic he could see clearly; the intensity of the moonlight was confirmed by the second witness, and the appellant's immediate flight and disappearance supported the identification.

p. 3
03

Malice aforethought and absence of motive or premeditation

Holding

The manner of the attack - lifting a heavy timber and bringing it down on the deceased's head - evidenced intent to kill or cause grievous harm; motive is unnecessary.

Reasoning

The trial judge's 'theory of premeditation' (that the appellant waylaid the brothers) was unsupported by evidence, but nothing turned on it. The force used caused extensive skull fractures and massive extradural haematoma, fitting the Section 206 Penal Code definition of malice aforethought, which the judge properly analyzed and applied.

p. 3
04

Rejection of the accused's defence and use of lies as corroboration

Holding

The trial judge was entitled to reject the defence; the appellant's obvious lies and flight were indicative of a guilty mind and corroborative.

Reasoning

The appellant's conduct in fleeing and hiding immediately after the offence, and lies about attending the funeral, burial and hospital visits, were indicative of a guilty mind, justifying rejection of the defence per the Ernest Abanga principle on lies as corroboration.

p. 4

Legal principles established

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  • A trial starting de novo before a succeeding judge is not prejudicial to an accused person; prejudice arises only where a conviction is founded on part of the evidence recorded by a predecessor, under Section 200(4) of the CPC.
  • A first appellate court must subject the entire evidence to a fresh and exhaustive analysis and reappraisal, bearing in mind that it did not see or hear the witnesses.
  • An obvious lie told by an accused person which is disproved or disbelieved is capable of providing corroboration to other independent evidence.
  • Premeditation or motive is not a necessary ingredient of the offence of murder; what must be proved is the act of killing coupled with malice aforethought.

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.The conviction and sentence of death imposed by the High Court are upheld

Authorities

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Legislation

  • Criminal Procedure CodeSection 200
  • Criminal Procedure CodeSection 200(3)
  • Criminal Procedure CodeSection 200(4)
  • Penal CodeSection 206

Cases cited (3)

  • HENRY KAILUTHIA NKARICHIA & ANOR –VS- REPUBLIC
    [2015] e KLR
  • OKENO –VS- REPUBLIC
    [1972] EA 32
  • ERNEST ABANGA ALIAS ONYANGO -VS- REPUBLIC
    CR. A. 32 of 1990
On appeal from
High Court of Kenya at Meru
H.C.CR.C. No. 66 of 2007
Jurisdiction invoked
First appeal to the Court of Appeal against conviction and sentence for murder (Criminal Procedure Code)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "David Kimathi Ndatho v Republic [2016] KECA 384 (KLR)", Case Analysis (2016). Criminal Appeal No. 129 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/384/eng@2016-07-18

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