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Court of AppealDismissedCriminal Appeal No. 115 of 2013· [2017] KECA 362 (KLR)

P K N v Republic [2017] KECA 362 (KLR)

Court of Appeal of Kenya
28 July 2017
2,280 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed a murder conviction, ruling that murder trials commencing after October 2007 no longer need assessors and that child witness evidence was properly corroborated.

What this practically means

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Executive summary

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The appellant P K N was convicted by Ochieng J of the murder of his wife, contrary to sections 203 and 204 of the Penal Code, based on the unsworn testimony of two of his children who witnessed the killing, and post mortem evidence showing the deceased was strangled before being dumped in a well. On appeal, the Court of Appeal (Visram, Warsame and Sichale JJ.A) considered four grounds raised by counsel. First, the appellant argued the trial was unlawful because it was conducted without assessors, relying on Kiwelesi v Republic and Bernard Kariuki & Others v Republic. The court held that the amendment to section 262 of the Criminal Procedure Code by the Statute Law (Miscellaneous Amendment) Act No. 7 of 2007 governed trials commencing after 15th October 2007; since the trial commenced on 19th April 2010, the assessors had rightly been discharged by Apondi J on 28th January 2008. Second, the court held the evidence of the two children of tender years, received after a voire dire examination as unsworn statements, was sufficiently corroborated by the post mortem evidence showing strangulation and dragging, consistent with their account, as required by section 124 of the Evidence Act. Third, the appellant could not complain that the post mortem report was produced by the investigating officer rather than its author, since defence counsel had expressly consented at trial. The court, sitting as a first appellate court, re-evaluated the evidence and found the case proved beyond reasonable doubt, with no misdirection by the trial court. The appeal was dismissed, thereby affirming the conviction and sentence. No separate costs order is recorded.

Key legal issues

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01

Legality of murder trial without assessors

Holding

The trial was lawfully conducted without assessors because the amendment to section 262 of the CPC by Act No. 7 of 2007 applied to trials commencing after 15th October 2007, regardless of the date of the offence

Reasoning

The court held that the relevant date is the date the trial commences, not the date of the alleged offence. The offence was allegedly committed in September 2006, but the trial commenced on 19th April 2010, by which time the amendment removing assessors from murder trials was in force. Apondi J had therefore rightly discharged the assessors on 28th January 2008.

p. 3
02

Corroboration of evidence of children of tender years

Holding

Under section 124 of the Evidence Act, the unsworn evidence of child witnesses PW1 and PW2 required corroboration, and the post mortem evidence supplied sufficient corroboration

Reasoning

The trial judge conducted a voire dire examination and properly received unsworn statements. The post mortem showed abrasions consistent with dragging after strangulation and ligature marks consistent with strangulation, showing death occurred before the body entered the well. This independently implicated the appellant and corroborated the children's graphic account of the killing.

p. 4
03

Production of a medical report by a person who did not author it

Holding

No error lay in the investigating officer producing the post mortem report because defence counsel expressly consented to that course at trial

Reasoning

When the authoring doctor was out of the country with an unknown date of return, prosecution counsel applied for the investigating officer to produce the report, and defence counsel stated on record that the investigating officer may produce it. Having conceded, the appellant was estopped from raising the complaint on appeal.

p. 4

Legal principles established

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  • Murder trials conducted after the commencement of the Statute Law (Miscellaneous Amendment) Act No. 7 of 2007 are lawful without the aid of assessors, notwithstanding the date of the alleged offence
  • A first appellate court must analyse and re-evaluate the evidence on record and reach its own independent conclusion, while bearing in mind that it did not see or hear the witnesses
  • A party who consents to a mode of proof at trial cannot later appeal on the basis of that consented mode of proof

Court orders

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  1. 1.Dismissal of the appeal
  2. 2.Affirmation of the conviction and sentence imposed by the High Court

Authorities

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Legislation

  • Penal Codesection 203 as read with section 204
  • Evidence Act (Cap 80, Laws of Kenya)section 124
  • Criminal Procedure Codesection 262
  • Statute Law (Miscellaneous Amendment) Act No. 7 of 2007amendment to section 262 CPC, commenced 15th October 2007
  • Oaths and Statutory Declarations Act (Cap 15)section 19
  • Statutory Declarations Actsection 19

Cases cited (3)

  • Kiwelesi v. Republic
    1969 EA 227
  • Bernard Kariuki & Others v Republic
    Criminal Appeal No. 433 of 2007
  • Okeno v Republic
    [1972] EA 32
On appeal from
High Court of Kenya at Nairobi
H.C.CR.A No. 113 of 2006
Jurisdiction invoked
First appellate jurisdiction over a High Court conviction for murder (appeal from H.C.CR.A No. 113 of 2006)

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, "P K N v Republic [2017] KECA 362 (KLR)", Case Analysis (2017). Criminal Appeal No. 115 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/362/eng@2017-07-28

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