Abdalla Kirao Mkare Wanje & 2 others v Republic [2016] KECA 399 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed three men's appeal, confirming that a planned, sustained attack proved their intent to kill and upholding their 15-year sentences.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether failure to call certain witnesses (PW1's watchman and Red Cross officers) and to produce exhibits (the spear) undermined the prosecution case
- 2.Whether the first appellate court failed in its duty to re-evaluate and reappraise the evidence
- 3.Whether the prosecution proved beyond reasonable doubt the offence of attempted murder, in particular a positive intention to unlawfully cause death
- 4.Whether the three appellants shared a common intention under section 21 of the Penal Code
- 5.Whether the sentence of 15 years' imprisonment was illegal given section 389 of the Penal Code
Key legal issues
#Proof of intention in attempted murder
The prosecution must prove a positive intention to unlawfully cause death; an intent to cause grievous harm alone is insufficient. On the facts, the planned, sustained attack - pursuit, stabbing, dousing with petrol, burning and preventing rescue - established that intent.
The court accepted the appellants' framing of the legal test but found the evidence overwhelming: the attack was premeditated, the appellants isolated the complainant, pursued him to his vehicle, set him alight and prevented rescue, conduct indicative of a positive intent to kill.
Common intention under section 21 of the Penal Code
The 3rd appellant, though he did not personally assault or set fire to the complainant, shared a common intention with his co-appellants through his urging, restraint of the complainant and prevention of rescue.
Relying on Wanjiro d/o Wamario, Njoroge v. Republic and Tabulayenka, the court held that common intention may be inferred from presence, conduct and omission to disassociate, and may develop during the course of events rather than being premeditated.
Sentence under section 389 of the Penal Code
Section 389's seven-year cap does not apply where the Penal Code specifically prescribes punishment for the particular attempt; the 15-year sentence for attempted murder under section 220 was lawful.
The court distinguished Evanson Murithi Gichane and Boniface Juma Khisa, noting that this Court subsequently declared the Gichane approach per incuriam in Charles Mulandi Mbula and allied decisions, because section 220 specifically prescribes life imprisonment for attempted murder.
Duty of first appellate court and failure to call witnesses or exhibits
The first appellate court discharged its duty of re-evaluation; failure to call a witness or produce the weapon did not vitiate the convictions.
Applying section 143 of the Evidence Act, Bukenya and the Okeno duty, the court found the uncalled witnesses' evidence would have been cumulative and the evidence did not barely establish the prosecution case.
Legal principles established
#- A second appeal under section 361 of the Criminal Procedure Code is confined to matters of law, and appellate courts will not disturb concurrent findings of fact unless no reasonable tribunal could have made them
- A conviction for attempted murder requires proof of a positive intention to unlawfully cause death; it is not enough that the accused would have been guilty of murder had death ensued
- Common intention under section 21 of the Penal Code may be inferred from presence, actions and failure to disassociate from an assault, and may develop in the course of events
- Failure to call a witness is not by itself a ground for interfering with findings of fact; no particular number of witnesses is required
- Non-production of the dangerous weapon as an exhibit does not by itself render a conviction unsafe
- Where a sentence is specifically prescribed for an offence, section 389 of the Penal Code has no application
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The convictions for attempted murder and malicious damage to property and the sentences of 15 and 2 years imprisonment respectively are upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Mombasa
- H.C.CR.A. No. 21 of 2013
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal on matters of law only)
- Consolidated with
- Criminal Appeal No. 8 of 2015, Criminal Appeal No. 13 of 2015, Criminal Appeal No. 14 of 2015
Relief refused
#Quashing of convictions and setting aside of sentences for attempted murder and malicious damage to property
The prosecution proved a positive intention to unlawfully cause death and common intention; the courts below correctly evaluated the evidence
Reduction of sentence to a maximum of 7 years under section 389 of the Penal Code (2nd appellant)
Where a sentence is specifically provided for an offence, section 389 has no application; the Gichane line of decisions was per incuriam
Costs
No costs order made (criminal appeal; judgment silent on costs)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
we have come to the conclusion that this appeal lacks merit and the same is hereby dismissed in its entirety. It is so ordered.
the prosecution is obliged to prove that they had a positive intention to unlawfully cause the death of PW1 and that it is not enough that they could have been guilty of murder if the death of PW1 had ensued
from his intimate involvement in the entire transaction, he had common intention with the 1st and 2nd appellants to cause the death of PW1.
where a sentence is specifically provided, section 389 has no application.
This is a second appeal, which by virtue of section 361 of the Criminal Procedure Code is restricted to consideration of matters of law only.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdalla Kirao Mkare Wanje & 2 others v Republic [2016] KECA 399 (KLR)", Case Analysis (2016). Criminal Appeal Nos. 8, 13 & 14 of 2015 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/399/eng@2016-07-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.