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Court of AppealDismissedCriminal Appeal No. 93 of 2014· [2017] KECA 245 (KLR)

Katana Kaka alias Benson & 2 others v Republic [2017] KECA 245 (KLR)

Court of Appeal of Kenya
5 October 2017
4,605 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal dismissed the murder appeal of three men who killed suspected witches, upholding their convictions and sentences.

What this practically means

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Executive summary

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The Court of Appeal at Malindi (Visram, Karanja and Koome JJA) dismissed the appellants' first appeal against their convictions and death sentences for the murder of Kaka Chula and Kadzo Chula on 31st January 2010 at Shella village, Malindi, in a mob killing driven by beliefs that the deceased practised witchcraft. The court discerned two issues: whether the appellants were denied a fair hearing when the trial court directed written submissions and moved to judgment without their oral input; and whether they should have been convicted of manslaughter rather than murder on grounds of provocation arising from witchcraft beliefs. On the first issue, applying sections 213 and 311 of the Criminal Procedure Code, the court held that the mandatory right of address applies only where the accused adduces no evidence; the appellants gave unsworn statements, it was their own counsel who opted for written submissions but failed to file them, and Article 50(2)(f) of the Constitution presumes the accused's consent. Any lapse was attributable to counsel, caused no prejudice, and was curable under section 382 CPC; section 230 CPC had been repealed. The court distinguished Akhuya v Republic as decided under the repealed Constitution. On the second issue, the court reaffirmed that belief in witchcraft does not justify private punishment of a suspected witch except where grave and sudden provocation from imminent danger to life is proved. Provocation was not pleaded at trial, did not emerge from the evidence, and no imminent danger was shown; malice aforethought under section 206 of the Penal Code was established. The appeal was accordingly dismissed and the convictions and sentences upheld.

Key legal issues

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01

Whether directing the filing of written submissions and proceeding to judgment without oral submissions denied the appellants a fair hearing

Holding

No fair-trial breach arose: the address under sections 213 and 311 CPC is mandatory only where the accused adduces no evidence; the appellants gave unsworn statements, counsel opted for written submissions, and any lapse was counsel's failure, curable under section 382 CPC.

Reasoning

The court read section 213 with section 311 CPC, concluding the mandatory address applies only where the accused adduces no evidence. The appellants gave unsworn statements, and it was their own counsel who sought leave to file written submissions but failed to comply. Article 50(2)(f) presumes consent absent proof otherwise. The trial Judge committed no lapse; any irregularity caused no failure of justice and was curable under section 382 CPC. Section 230 CPC, relied on by the appellants, had been repealed by section 82 of Act No. 5 of 2003.

p. 5
02

Whether the belief that the deceased practised witchcraft warranted conviction for manslaughter on grounds of provocation

Holding

No: provocation was not pleaded nor did it emerge from the evidence; there was no imminent danger to the appellants, so malice aforethought stood established and the murder conviction was proper.

Reasoning

The court restated the settled principle that belief in witchcraft does not justify private punishment of a suspected witch save where grave and sudden provocation from imminent danger to life is proved. No such danger was pleaded or shown; provocation was raised for the first time on appeal. The appellants in any event denied presence at the scene. The trial Judge correctly found the motive was belief in witchcraft but with a plan hatched and executed, establishing malice aforethought under section 206 of the Penal Code.

p. 7

Legal principles established

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  • A first appellate court must re-analyse and re-evaluate the evidence afresh and reach its own conclusions while making allowance for the trial court's advantage of seeing and hearing the witnesses
  • The right of address in final submissions under sections 213 and 311 of the Criminal Procedure Code is mandatory and inalienable only where the accused person does not intend to give or adduce evidence; where the accused has given an unsworn statement and counsel opts for written submissions, failure to file them is counsel's failure, not a denial of fair trial by the court
  • The consent of an accused person is presumed unless otherwise proven under Article 50(2)(f) of the Constitution, with the conduct of the accused being the deciding factor; failure by counsel who requested written submissions to file them does not amount to a breach of the right to fair trial
  • Lapses that do not occasion a failure of justice are curable under section 382 of the Criminal Procedure Code
  • Belief in witchcraft does not justify private infliction of punishment on a suspected witch except where the accused was put in such fear of immediate danger to his own life that grave and sudden provocation is proved
  • To reduce murder to manslaughter the court must be satisfied that malice aforethought was absent and the offence was committed spontaneously on provocation; a defence of provocation not raised at trial may still be considered if it emerges from the evidence

Court orders

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  1. 1.Appeal dismissed
  2. 2.Conviction and sentence imposed by the trial court upheld

Authorities

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Legislation

  • Penal Codesection 203
  • Penal Codesection 204
  • Penal Codesection 206
  • Constitution of Kenya, 2010Article 25(c)
  • Constitution of Kenya, 2010Article 50(2)(c)
  • Constitution of Kenya, 2010Article 50(2)(f)
  • Constitution of Kenya, 2010Article 159
  • Repealed Constitutionsection 77(2)(f)
  • Criminal Procedure Codesection 213
  • Criminal Procedure Codesection 310
  • Criminal Procedure Codesection 311
  • Criminal Procedure Codesection 230
  • Criminal Procedure Codesection 382
  • Act No. 5 of 2003section 82

Cases cited (11)

  • Okeno v. R.
    [1972] EA 32
  • Pandya v. R.
    [1957] EA 336
  • Shantilel M. Ruwal v. R.
    [1957] EA 570
  • Peters v. Sunday Post
    [1958] EA 424
  • Akhuya vs. Republic
    [2003] eKLR
  • Otieno K'Opiyo Gerald vs. Republic
    [2010] eKLR
  • Julius Kamau Mbugua vs. Republic
    [2010] eKLR
  • Joseph Maina Mwangi -vs- Republic
    Criminal Appeal No. 73 of 1993
  • Patrick Tuva Mwanengu vs. Republic
    [2007] eKLR
  • Gunga Baya & another v Republic
    [2015] eKLR
  • Katana Karisa & Others v Republic
    Criminal Appeal 372 of 2006
On appeal from
High Court of Kenya at Malindi
H.C.CR.C. No. 5 of 2011
Jurisdiction invoked
First appeal to the Court of Appeal under the Criminal Procedure Code (Court of Appeal jurisdiction over appeals from High Court convictions)

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, "Katana Kaka alias Benson & 2 others v Republic [2017] KECA 245 (KLR)", Case Analysis (2017). Criminal Appeal No. 93 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/245/eng@2017-10-05

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