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Court of AppealPartially AllowedCriminal Appeal No. 46 of 2016· [2019] KECA 163 (KLR)

Henry Mulamba Bwire & another v Republic [2019] KECA 163 (KLR)

Court of Appeal
21 November 2019
RNR. N. NambuyeAMAsike MakhandiaSKS. ole Kantai
7,730 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal upheld two murder convictions based largely on a dying declaration, but replaced the death sentences with 25 years' imprisonment.

What this practically means

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Executive summary

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This is a first appeal against conviction and sentence before the Court of Appeal at Kisumu (Nambuye, Makhandia and Kantai JJA) from the High Court at Busia (Tuiyot, J.), which on 20th November 2014 had convicted the two appellants of the murder of Dennis Wandera Ouma and sentenced them to death. The prosecution case rested entirely on circumstantial evidence and the deceased's dying declaration, there being no eyewitness: PW1 and PW4 identified the appellants by voice and sight outside their homes on the night of 31st August 2012, and the deceased, found fatally injured, named 'Mulamba' and 'Caleb' among his attackers before dying the next morning. Counsel for the appellants attacked the reliability of the dying declaration, the inconsistencies in the witnesses' accounts, and the rejection of the alibi defences, and alternatively invoked Francis Karioko Muruatetu against the mandatory death sentence. The Court re-evaluated the whole record as required on a first appeal, held that corroboration of a dying declaration is not mandatory and that the inconsistencies were immaterial, and found that the trial court properly rejected the alibis, which had been raised too late to be authenticated. The appeal against conviction was dismissed and the convictions affirmed. On sentence, the Court held that Muruatetu is not a panacea for setting aside every death sentence and that each case turns on its own facts; considering the mitigation, first-offender status and the operation of common intention, it allowed the appeal against sentence, set aside the death sentence and substituted twenty-five years' imprisonment effective the date of the trial court's sentence. The judgment was delivered at Kisumu on 21st November 2019.

Key legal issues

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01

Whether the conviction could rest on the deceased's dying declaration and related witness testimony notwithstanding alleged inconsistencies

Holding

The dying declaration was properly admitted under section 33(a) of the Evidence Act; inconsistencies were immaterial and the conviction was safe.

Reasoning

The Court held that the deceased need not use exact words to each witness; the declaration related to the cause of death, was voluntary, without concoction or distortion, and repeated consistently to PW2, 4 and 5. Corroboration is not mandatory. The trial court, having seen the witnesses, believed their testimony, and the appellate court gave deference to that assessment.

p. 7
02

Whether the trial court properly rejected the appellants' alibi defences

Holding

The alibis were rightly rejected; the burden of displacement lay on the prosecution and was discharged.

Reasoning

The defences were not raised at the investigation stage and thus could not be authenticated by the investigators. PW1 and PW4 knew the appellants well and identified them by voice and sight; the deceased named them in his dying declaration. The supporting defence witnesses' evidence did not vouch for the appellants' whereabouts throughout the night.

p. 7
03

Whether the mandatory death sentence should be tampered with in light of Muruatetu

Holding

Yes. The Court exercised its discretion, set aside the death sentence and substituted 25 years' imprisonment, considering mitigation, first-offender status, common intention and the inability to measure individual contribution to the fatal injuries.

Reasoning

The Court acknowledged Muruatetu declared the mandatory nature of the death sentence under section 204 unconstitutional but held that it is not a panacea for every death sentence. Each case is considered on its facts; the trend is to set aside and substitute, remit for resentencing, or affirm. Mitigation and the circumstances here justified interference.

p. 7

Legal principles established

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  • In Kenya, corroboration of a dying declaration is not a rule of law, but caution is necessary and it is generally unsafe to base a conviction solely on a dying declaration.
  • On a first appeal, the appellate court must subject the entire record to exhaustive re-examination and reach its own conclusions, while allowing for the trial court's advantage of seeing and hearing the witnesses.
  • Where contradictions and inconsistencies are alleged in the prosecution case, the court's duty is to reconcile them and determine whether they vitiate the prosecution case or are inconsequential.
  • The burden of proving the falsity of an accused's alibi lies on the prosecution, and the court should consider whether the alibi was raised at the earliest opportunity or is an afterthought.
  • Muruatetu is not a basis for setting aside every death sentence; each case must be considered on its own facts, and appellate courts may set aside, remit for resentencing, or affirm a death sentence.

Court orders

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  1. 1.Appeal against conviction dismissed and conviction affirmed.
  2. 2.Appeal against sentence allowed; death sentence set aside and substituted with a sentence of Twenty-Five (25) years imprisonment effective the date of sentence by the trial court.

Authorities

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Legislation

  • Penal Codesection 203
  • Penal Codesection 204
  • Penal Codesection 206
  • Evidence Actsection 33(a)
  • Criminal Procedure Codesection 382
  • Constitution of Kenya 2010Article 26(3)
  • Constitution of Kenya 2010Article 165(3)(a)(b), 159(2)(a)(b) and 22(4) - cited in grounds of appeal

Cases cited (16)

  • Pius Jasunga S/O Akumu versus R.
    [1954] 21 EACA 333
  • Wangombe versus Republic
    [1980] KLR 149
  • Victor Mwenda Mulingi versus Republic
    [2014] eKLR
  • Choge versus Republic
    [1985] KLR 1
  • Francis Karioko Muruatetu & another versus Republic
    [2017] eKLR
  • David Njuguna Wairimu V Republic
    [2010] eKLR
  • Dinkerrai Ramkrishan Pandya vs. R
    [1957] EA 336
  • P.V. Radhakrishna v State
    AIR 1989 SC of Karnataka
  • Republic v Andrew
    [1987] AC 281
  • Republic v Eligu S/O Odel & Another
    [1943] 10 EACA 9
  • Joseph Maina Mwangi versus Republic
    Criminal Appeal No. 73 of 1993
  • Josiah Afuna Angulu Vs. Republic
    Cr. Appeal No. 227 of 2006 (UR)
  • Charles Kiplangat Ng'eno Vs. Republic
    CR. Appeal No. 77 of 2009 (UR)
  • Joseph Njuguna Mwaura and 2 others vs Republic
    [2013]
  • Juma Antony Kakai versus Republic
    Nairobi Criminal Appeal No. 48 of 2015
  • Julius Mutei Muthama versus Republic
    Nairobi Criminal Appeal No. 189 of 2016
On appeal from
High Court of Kenya at Busia
Busia H.C. RA. No. 11 of 2012
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court, exercising its original criminal jurisdiction on a murder charge (Article 164(1)(a) of the Constitution)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Henry Mulamba Bwire & another v Republic [2019] KECA 163 (KLR)", Case Analysis (2019). Criminal Appeal No. 46 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/163/eng@2019-11-21

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