Ezekiel Wakhwa Nandwa & another v Republic [2019] KECA 103 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a murder conviction but scrapped the death sentence, replacing it with 30 years in prison.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the prosecution proved its case beyond reasonable doubt and connected the appellants to the death of the deceased, including causation of death
- 2.Whether contradictions or inconsistencies in the prosecution evidence created doubt as to the appellants' guilt
- 3.Whether failure to produce the murder weapon as an exhibit was fatal to the conviction
- 4.Whether malice aforethought was proved
- 5.Whether the admissibility and weight of the deceased's statement affected the conviction
- 6.Whether the mandatory death sentence and the trial court's treatment of mitigation were lawful
Key legal issues
#Causation of death where medical treatment was not sought at a referral hospital
The appellants' infliction of head injuries was the cause of death; the family's inability to transfer the deceased to Moi Referral Hospital was not the primary cause, and reliance on subsequent medical intervention cannot deflect liability.
The deceased died less than a month after the assault. The pathologist established severe head injury secondary to blunt trauma consistent with a jembe blow. The Court held that accepting the appellants' argument would allow murderers to deflect liability by blaming medical care or the absence thereof, which is not the law on causation.
Effect of discrepancies and contradictions in prosecution evidence
The alleged discrepancies were of a minor nature and did not create doubt as to the appellants' guilt; the eyewitnesses were relatives who knew the appellants, the attack occurred in broad daylight and they were not shaken in cross-examination.
The Court applied its prior decision in John Nyaga Njuki, holding that discrepancies are inevitable in cases with many witnesses and are only material where they create reasonable doubt. It found no material contradiction between PW1, PW2 and PW4, and held nothing turned on the admission of the deceased's statement given the clear eyewitness evidence.
Production of the murder weapon as an exhibit
Failure to produce the jembe as an exhibit was not fatal to the conviction once the trial judge believed the eyewitness evidence that the fatal injuries were inflicted with a jembe.
Citing Karani v. Republic and Ekai v. Republic, the Court reaffirmed that a conviction may properly be entered where the court believes on the evidence that the weapon existed at the time of the offence, even though the weapon was not recovered or produced.
Proof of malice aforethought
Malice aforethought was established: the appellants hit the deceased on the head with a jembe with such force as to fracture and depress the skull, showing an intention to cause grievous harm within the meaning of section 206 of the Penal Code.
Whether malice aforethought is proved depends on the peculiar circumstances of each case. The Court considered the part of the body injured, the weapon used and the gravity of the injuries, concluding that the nature of the attack showed intention to cause grievous harm and the trial judge could not be faulted.
Sentence: mandatory death penalty and mitigation
Following Muruatetu, the mandatory death sentence is unconstitutional; the trial judge did not consider the appellants' mitigation because of the mandatory nature of the sentence, and the respondent conceded the appeal on sentence.
The record showed the appellants were first offenders and remorseful. The Court allowed the appeal against sentence, set aside the death sentence and substituted 30 years imprisonment effective from the date of arrest.
Legal principles established
#- In a first appeal, the appellate court is obliged to reappraise and re-evaluate the evidence and reach its own conclusions.
- The victim's family's inability to arrange treatment at a particular hospital does not break the chain of causation between the accused's unlawful injuries and the death.
- Minor discrepancies in prosecution evidence do not vitiate a conviction where they do not create doubt as to the guilt of the accused.
- Non-production of the murder weapon as an exhibit is not fatal to a conviction where the court believes on the evidence that such a weapon existed.
- Malice aforethought may be inferred from the part of the body injured, the type of weapon used, the nature of the injuries and the subsequent conduct of the accused.
Court orders
#- 1.Appeal against conviction dismissed in its entirety
- 2.Appeal against sentence allowed and the sentence of death set aside
- 3.Substitution of a sentence of 30 years imprisonment with effect from the date of the appellants' arrest
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kakamega
- H.C. Cr. C. No. 37 of 2010
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court in criminal matters, appeal both on matters of law and fact
Relief refused
#Setting aside of the conviction for murder
The Court re-evaluated the evidence and found the prosecution case proved beyond reasonable doubt; eyewitness evidence of PW1 and PW2 was corroborated by the pathologist and malice aforethought was established.
Costs
No costs order recorded in the judgment.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Taking into account all the circumstances of this case, we dismiss the appeal against conviction in its entirety. We, however, allow the appeal against sentence and set aside the sentence of death meted by the trial court. In lieu thereof, we substitute a sentence of 30 years imprisonment with effect from the date of the appellants’ arrest. It is so ordered.
This is a first appeal in which we are obliged to reappraise and re-evaluate the evidence, so as to come to our own conclusions thereon
In terms of causation, the injuries that the appellants inflicted on the deceased were the of cause his death; his family’s inability to have him treated at a particular hospital was not the primary cause of his death.
So long as the court believes, on evidence before it, that such a weapon existed at the time of the offence, the court may still enter and has been entering conviction without the weapon being produced as exhibit
However, where discrepancies in the evidence do not affect an otherwise proved case against the accused, a court is entitled to overlook those discrepancies and proceed to convict the accused.
Issues in the judgment
#Typographical error in the judgment: 'the of cause his death' instead of 'the cause of his death'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ezekiel Wakhwa Nandwa & another v Republic [2019] KECA 103 (KLR)", Case Analysis (2019). Criminal Appeal No. 138 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/103/eng@2019-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.