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Court of AppealDismissedCriminal Appeal No 29 of 2015· [2016] KECA 696 (KLR)

Watu v Republic (Criminal Appeal 29 of 2015) [2016] KECA 696 (KLR)

Court of Appeal of Kenya
11 March 2016
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
3,152 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 based largely on a dying declaration, confirming such evidence can support a conviction without mandatory corroboration.

What this practically means

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Executive summary

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This is a first appeal to the Court of Appeal at Mombasa (Asike-Makhandia, W. Ouko and K. M'inoti, JJ.A) against the conviction of the appellant for the murder of Mwambu Chiruu Mwambui and the sentence of death imposed by Muya, J. on 12th March 2014, after a trial commenced before Nzioka, J. and concluded under section 201(2) of the Criminal Procedure Code. The deceased, who was dumb, was stabbed at Kasidi market, Rabai, and before dying told his wife (PW2), who understood his sign language, that he had been stabbed by the appellant. Counsel for the appellant argued that the prosecution evidence was riddled with contradictions as to time, and that it was unsafe to convict on an uncorroborated dying declaration from a dumb declarant that was never tested by cross-examination. The Court dismissed the appeal. It reaffirmed the duty of a first appellate court to re-evaluate the evidence, holding that only material contradictions going to the root of the case vitiate a conviction; the time discrepancies here were approximations, with one likely typographical error. On the dying declaration, the Court held it admissible under section 33(a) of the Evidence Act, requiring caution but not mandatory corroboration. Corroboration was found in PW3's evidence placing the appellant with the deceased immediately before the stabbing, the appellant's attempted flight, and the knife left in situ. The decision of the High Court was affirmed in full.

Key legal issues

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01

Admissibility and weight of a dying declaration

Holding

The dying declaration was admissible under section 33(a) of the Evidence Act; although it must be received with caution, it did not require corroboration as a rule of law, and here it was corroborated by the evidence of PW3 and the appellant's flight.

Reasoning

The Court held that section 33(a) admits statements by a deceased person as to the cause or circumstances of his death regardless of expectation of death. The caution required stems from the absence of cross-examination and possible confusion. Here PW2, married to the dumb deceased for 40 years, credibly communicated the declaration; the trial judge was alive to the caution required; PW3's evidence placed the appellant with the deceased immediately before the stabbing, and the appellant's attempted flight corroborated guilt.

p. 5
02

Effect of contradictions and discrepancies in prosecution evidence

Holding

The discrepancies as to time were minor approximations, one likely a typographical error, and did not undermine the safety of the conviction.

Reasoning

The Court accepted that cogent, credible and trustworthy evidence is required for a conviction beyond reasonable doubt, but human recollection is not infallible and some inconsistency may even signify honesty. Discrepancies must be evaluated in context, not in isolation, per the Tanzanian Court of Appeal in Shapwata. The witnesses' time estimates were consistent except one recorded as 6.30 a.m., probably a typographical error; the time of the offence is a question of fact settled by the two courts below.

p. 4
03

Circumstantial evidence and identity of the assailant

Holding

The circumstantial evidence pointed inexorably to the appellant, and mistaken identity did not arise since PW3 knew both men.

Reasoning

PW3 saw the appellant lead the deceased away moments before the deceased was found stabbed with intestines protruding; no one else was nearby. Although PW3 did not see the actual stabbing, the evidence was incompatible with the appellant's innocence and incapable of explanation on any other reasonable hypothesis. The knife remained in situ, confirming the suddenness of the attack.

p. 5

Legal principles established

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  • A dying declaration is admissible under section 33(a) of the Evidence Act as an exception to the hearsay rule, whether or not the declarant was expecting death; it need not be corroborated to found a conviction, but the trial court must receive it with caution and it is generally unsafe to base a conviction solely on it.
  • On a first appeal, the appellate court is obliged to reappraise and re-evaluate the evidence and reach its own independent findings.
  • Not every discrepancy in prosecution evidence vitiates a conviction; discrepancies must be assessed against the circumstances of the case and only material contradictions going to the root of the matter render a conviction unsafe.
  • An accused person's conduct immediately after the offence, including an attempt to flee the scene, may be relied upon as evidence corroborating the prosecution case.

Court orders

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

Authorities

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Legislation

  • Penal Codesection 203
  • Penal Codesection 204
  • Criminal Procedure Codesection 201(2)
  • Criminal Procedure Codesection 214(2)
  • Evidence Actsection 33(a)

Cases cited (9)

  • Kiilu & Another v. Republic
    [2005] KLR 174
  • Stephen Muturia Kinganga v. Republic
    Cr. App. No. 305 of 2011 (Nyeri)
  • Tarikabi v. Uganda
    [1975] EA 60
  • Kato v. Uganda
    [2002] EA 101
  • Dickson Elia Nsamba Shapwata & Another v. The Republic
    Cr. App. No. 92 of 2007
  • Choge v. Republic
    [1985] KLR 1
  • Kihara v. Republic
    [1986] KLR 473
  • Nelson Julius Karanja Irungu v. Republic
    Cr. App. No. 24 of 2008
  • Bukenya Patrick & Another v. Uganda
    Cr. App. No. 15 of 2001
On appeal from
High Court of Kenya
Jurisdiction invoked
First appeal to the Court of Appeal against conviction and sentence on a murder charge under the Criminal Procedure Code

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, "Watu v Republic (Criminal Appeal 29 of 2015) [2016] KECA 696 (KLR)", Case Analysis (2016). Criminal Appeal No 29 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/696/eng@2016-03-11

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