Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCriminal Appeal No. 51 of 2016· [2018] KECA 614 (KLR)

Jonathan Lemiso Ole Kini v Republic [2018] KECA 614 (KLR)

Court of Appeal of Kenya
11 May 2018
2,721 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal upheld a murder conviction but replaced the automatic death sentence with 30 years' imprisonment, following the Muruatetu decision.

What this practically means

#

Executive summary

#
This was a first appeal against conviction for the murder of Simon Koli, committed on 25th June 2013 at Maasai Village, Embakasi, Nairobi, and the death sentence imposed by R. Korir, J. on 13th May 2015. The appellant, a Kenya Wildlife Service game ranger authorised to carry a pistol, traced the deceased, a former herdsboy whom he suspected of stealing his property, to PW1's home at night and shot him without any exchange of words, according to PW1 and PW2. The appellant claimed the deceased grabbed the pistol and pulled the trigger during a scuffle. Counsel conceded causation but contested malice aforethought and the sentence. The Court of Appeal examined the evidence against section 206 of the Penal Code and, relying on Bonaya Tutu Ipu v Republic, held that malice aforethought was established from the nature of the weapon, the close range, the absence of any attack by the deceased, and the part of the body shot. The conviction was upheld. On sentence, counsel invoked the Supreme Court's decision in Muruatetu, which declared the mandatory death sentence under section 204 of the Penal Code unconstitutional. Because the Court is bound by Supreme Court decisions and the trial judgment predated Muruatetu, the Court set aside the death sentence and substituted thirty years' imprisonment from 13th May 2015, taking into account the cold-blooded nature of the killing and the appellant's mitigation as a first offender. The appeal therefore succeeded only on sentence; it was partially allowed. The judgment was signed and delivered by Musinga and M'Inoti, JJ.A., Kihara Kariuki having ceased office before delivery.

Key legal issues

#
01

Whether malice aforethought was established

Holding

Malice aforethought was inferred from the nature of the weapon (a pistol), the short distance between the appellant and the deceased, the absence of any attack by the deceased, and the part of the body shot.

Reasoning

Section 206 of the Penal Code deems malice aforethought established by proof of intention to cause death or grievous harm, or knowledge that the act will probably cause death or grievous harm. On the evidence of PW1 and PW2, the appellant shot the deceased without any conversation or scuffle, at close range, with an uncorked firearm. The rungu found at the scene belonged to the deceased and there was no evidence he used it against the appellant. The chain of events demonstrated intent to kill or inflict grievous harm.

p. 3
02

Whether the death sentence could stand after Muruatetu

Holding

The mandatory death sentence was unconstitutional per the Supreme Court; although the trial judgment predated Muruatetu, the Court of Appeal, being bound by the Supreme Court, interfered with the sentence and substituted thirty years' imprisonment.

Reasoning

The Supreme Court in Muruatetu declared the mandatory nature of the death sentence under section 204 of the Penal Code unconstitutional, without disturbing the validity of the death sentence under Article 26(3) of the Constitution. The trial judgment predated that decision, so the trial court had no discretion in sentencing. In resentencing, the Court weighed the cold-blooded nature of the murder against the appellant's mitigation as a first offender and family breadwinner.

p. 4

Legal principles established

#
  • For a conviction of murder, both mens rea (malice aforethought) and actus reus must be proved.
  • Malice aforethought is the mens rea for murder and its presence or absence determines whether an unlawful killing is murder or manslaughter; whether it is proved depends on the peculiar facts of each case, including the nature of the weapon used, the distance between the accused and the deceased, whether the deceased attacked the accused, and the part of the body shot.
  • The Court of Appeal is bound by decisions of the Supreme Court, including Muruatetu on the unconstitutionality of the mandatory death sentence.

Court orders

#
  1. 1.Conviction for murder upheld
  2. 2.Death sentence set aside
  3. 3.Substituted a jail term of thirty (30) years from 13th May 2015 when the initial sentence was passed

Authorities

#

Legislation

  • Penal CodeSection 206
  • Penal CodeSection 204
  • Constitution of KenyaArticle 26(3)
  • Court of Appeal RulesRule 32(2)

Cases cited (3)

  • JOSEPH KIMANI NJAU v REPUBLIC
    [2014] eKLR
  • FRANCIS KARIOKO MURUATETU & ANOTHER v REPUBLIC
    [2017] eKLR
  • BONAYA TUTU IPU & ANOTHER v REPUBLIC
    [2015] eKLR
On appeal from
High Court of Kenya at Nairobi
H.C. CR.C. No. 71 of 2013
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules against conviction and sentence for murder

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Jonathan Lemiso Ole Kini v Republic [2018] KECA 614 (KLR)", Case Analysis (2018). Criminal Appeal No. 51 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/614/eng@2018-05-11

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