Stephen Ariga & another v Republic [2018] KECA 325 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that two police officers convicted of manslaughter for shooting a passenger remain guilty, because shared intent can form on the spot.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellants unlawfully caused the death of the deceased
Yes. The court affirmed that it was the appellants who shot the deceased; the proposition that someone from P.W.2's vehicle fired the fatal shot from the front was rejected, and the possibility that the deceased turned to face the direction of the shooting was accepted as plausible.
The ballistic evidence matched spent cartridges at the scene to firearms issued to the appellants. The pathologist's evidence of a front-entry wound did not displace responsibility because the deceased, seated in the back, plausibly turned towards the gunfire from the rear. The alleged third shooter was disbelieved as the officers made no effort to subdue him or recover a firearm from the vehicle.
Whether common intention was established against the appellants
Yes. All five ingredients from Eunice Musenya Ndui were satisfied even though the appellants did not consult each other and their intention to shoot arose on the spot, because separately formed but identical intentions to shoot at the vehicle satisfied the section.
The court held that ingredient two does not require the common intention to be formed before the act; the intention to immobilize the moving vehicle carried the probable consequence of injury to occupants, and the unlawfulness arises from the end result of the shooting. The second shooting was unintentional as to the fatal outcome, which is why the offence disclosed was manslaughter.
Whether the trial Judge erred in convicting the appellants of the lesser disclosed offence of manslaughter rather than murder
No. The trial Judge correctly found doubt as to malice aforethought and, pursuant to section 179 of the Criminal Procedure Code, properly convicted of the disclosed lesser offence of manslaughter.
The Judge had found that although the manner in which the firearms were used may have been negligent, there was doubt whether the appellants had a malicious intention to end the deceased's life. The appellate court saw nothing to disturb that assessment, which rested on the Penal Code provisions and the authority permitting conviction on a lesser disclosed offence.
Legal principles established
#- A first appellate court must re-evaluate and re-analyse the evidence and arrive at its own conclusions, while giving allowance to the trial court which saw and heard the witnesses.
- Common intention under section 21 of the Penal Code need not be premeditated or formed before the act; it may develop in the course of events, and separately formed identical intentions of two or more persons acting together can satisfy the section.
- Discharging firearms at a moving vehicle at night, without restraint, carries a probable consequence of injury or death to occupants, so the shooter is taken to intend those consequences; the unlawfulness of the purpose may arise from the end result of the action rather than its onset.
Court orders
#- 1.Both appeals dismissed
- 2.Conviction for manslaughter contrary to section 202 of the Penal Code upheld
- 3.Sentence of three years imprisonment for each appellant upheld
- On appeal from
- High Court of Kenya at Nairobi
- Criminal Case No. 79 of 2012
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal's statutory powers over appeals from the High Court (Criminal Appeal Nos. 49 'A' and 49 'B' of 2017)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- William Kipkorir Chirchir & 1 other v Republic[2025] KECA 1369 (KLR)25 Jul 2025applied
Cite this brief
#Cite this brief
Caselaw, "Stephen Ariga & another v Republic [2018] KECA 325 (KLR)", Case Analysis (2018). Criminal Appeal No. 49 'A' of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/325/eng@2018-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.