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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCriminal Appeal Nos. 3, 4, 5, 6, 7, 9 & 10 of 2016· [2018] KECA 288 (KLR)

1. Mtawali Amini Ngawa 2. Safari Foleni Ngawa 3. Charo Chome Kitsao 4. Foleni Karima Ngawa 5. Said Amini Ngawa 6. Banaka Ngawa Chome 7. Ngala Charo Ponda 8. Abeid Amin Ngawa v Republic

Court of Appeal
20 September 2018
2,990 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal upheld eight murder convictions but scrapped the death sentences, replacing them with 20-year prison terms.

What this practically means

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Executive summary

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Eight relatives convicted by the High Court at Mombasa (Muya, J.) of the murder of a kinsman killed at a family burial on allegations of witchcraft appealed against both conviction and sentence. Their memoranda of appeal, replicated word for word, were consolidated and heard together. The Court of Appeal, as a first appellate court under Rule 29(1)(a) of its Rules, re-evaluated the evidence applying the Okeno principle. It found no material contradictions in the testimony of the three eyewitnesses, who were relatives with no animosity towards the appellants and who placed each of them squarely at the scene. The contention that the alibi defence was ignored failed, the trial Judge having considered and rejected it. On the supplementary ground invoking provocation by reason of belief in witchcraft, the court set out the parameters: there must be evidence of belief in witchcraft by the parties, belief that the deceased practised it, and that he was responsible for a death or identifiable acts of witchcraft. Only unsubstantiated murmurs on the burial morning existed, so the defence failed and the conviction was upheld. On sentence, relying on Muruatetu, the court held that the mandatory death sentence no longer applied; considering the detailed mitigation, the State's plea for a life sentence, and the prevalence of killings fuelled by baseless witchcraft beliefs, it set aside the death sentence and substituted twenty years' imprisonment for each appellant, calculated from the date of conviction and sentence by the High Court. The appeal was thus partially allowed: conviction affirmed, sentence reduced.

Key legal issues

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01

Consistency and credibility of eyewitness evidence on first appeal

Holding

No material contradictions existed; the eyewitnesses consistently placed each appellant at the scene.

Reasoning

As a first appellate court it re-evaluated the evidence while deferring to the trial judge's advantage of seeing the witnesses. It found PW1, PW2 and PW3, who were relatives with no animosity towards the appellants, gave consistent accounts identifying each appellant's role; any discrepancies were trivial and did not go to the root of the evidence. The ground on contradictions therefore failed.

p. 3
02

Whether the trial court considered the appellants' alibi defence

Holding

The learned Judge considered the defence but rejected it as unconvincing against the eyewitness accounts.

Reasoning

The appellants claimed to have been away from the scene and to have arrived after the killing, but the three eyewitnesses placed them squarely at the scene. Rejection of a defence does not mean it was not considered; the Judge found the witnesses steadfast and had no cause to disbelieve them. That ground of appeal also failed.

p. 3
03

Provocation by reason of belief in witchcraft

Holding

The defence was not available on the facts; unsubstantiated murmurs that the deceased was a witch fell below the threshold.

Reasoning

The court laid out clear parameters: there must be evidence of a belief in witchcraft by the parties, evidence that the deceased was believed to practise witchcraft, and evidence that he was responsible for a death or identifiable acts of witchcraft. There was no prior allegation against the deceased; only unsubstantiated murmurs on the burial morning. The defence could not be invoked whimsically and the supplementary ground failed.

p. 3
04

Sentence following Muruatetu

Holding

The mandatory death sentence no longer applied; the court substituted twenty years' imprisonment for each appellant.

Reasoning

At conviction the death sentence was mandatory, but Muruatetu broadened sentencing latitude in capital offences. The appellants had tendered detailed mitigation, and the State itself sought a life sentence. Noting the prevalence of killings propelled by baseless witchcraft beliefs, the court found it mete and just to interfere with the death sentence, substituting twenty years calculated from the date of conviction and sentence.

p. 4

Legal principles established

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  • A first appellate court must re-evaluate and re-analyse the evidence and reach its own independent conclusions, while making allowance for the trial court's advantage of seeing and hearing the witnesses.
  • The defence of provocation by reason of belief in witchcraft requires evidence that the parties believed in witchcraft, that the deceased was believed to practise it, and that he was responsible for a death or identifiable acts of witchcraft; mere allegations of witchcraft do not suffice.
  • A trial court may consider the defence of provocation even where the accused did not raise it, if it is disclosed by the evidence adduced.
  • Following Muruatetu, sentencing courts in capital offences are no longer bound to impose the mandatory death sentence and have latitude in sentencing.

Court orders

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  1. 1.Appeal against conviction dismissed and conviction upheld
  2. 2.Death sentence set aside and substituted with twenty (20) years imprisonment for each appellant, calculated from the date of conviction and sentence by the High Court
On appeal from
High Court of Kenya at Mombasa
H.C.CR.C. No. 40 of 2012
Jurisdiction invoked
First appeal to the Court of Appeal under Rule 29(1)(a) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "1. Mtawali Amini Ngawa 2. Safari Foleni Ngawa 3. Charo Chome Kitsao 4. Foleni Karima Ngawa 5. Said Amini Ngawa 6. Banaka Ngawa Chome 7. Ngala Charo Ponda 8. Abeid Amin Ngawa v Republic", Case Analysis (2018). Criminal Appeal Nos. 3, 4, 5, 6, 7, 9 & 10 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/288/eng@2018-09-20

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