Jonathan Lemiso Ole Kini v Republic [2018] KECA 614 (KLR)
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
#Key legal issues
#Whether malice aforethought was established
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.
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.
Whether the death sentence could stand after Muruatetu
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.
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.
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.Conviction for murder upheld
- 2.Death sentence set aside
- 3.Substituted a jail term of thirty (30) years from 13th May 2015 when the initial sentence was passed
- 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.