Gordon Odhiambo Shem v Republic
The bottom line
#Kenya's Court of Appeal upheld a murder conviction built on circumstantial evidence, but replaced the mandatory death sentence with 25 years' imprisonment.
What this practically means
#Executive summary
#Key legal issues
#Whether the death of the deceased was proved
The fact and cause of death were not in dispute; the post mortem established death by lack of oxygen from compression of the spinal code inflicted by a sharp object
PW6's post mortem established that death resulted from arrest of the heart and lungs due to lack of oxygen from compression of the spinal cord, with injuries caused by a sharp object, likely the blood-stained axe recovered at the scene. Neither the witnesses nor the appellant disputed that the deceased was found dead in a pool of blood.
Whether the circumstantial evidence proved that the appellant caused the death
The chain of circumstantial evidence - opportunity, unexplained absence between 8.30pm and 10.00pm, blood-stained clothes matching the deceased's DNA, and the hidden blood-stained trouser - irresistibly pointed to the appellant's guilt
No eyewitness placed the appellant at the scene, so the case depended on circumstantial evidence. The appellant was the last person with the deceased; there was no forced entry; his clothes bore the deceased's blood which he failed to credibly explain; the trouser was hidden under a mattress and PW5 saw him wearing the stained clothes the previous night. The three circumstantial-evidence tests were satisfied.
Whether inconsistencies in witness testimony undermined the prosecution case
Any inconsistencies were immaterial and did not prejudice the appellant or go to the root of the prosecution case
The appellant failed to identify specific inconsistencies. Contradictions are commonplace in criminal trials; the correct test, guided by section 382 of the Criminal Procedure Code, is whether they are so fundamental as to cause prejudice or are inconsequential. Here they were inconsequential against an otherwise watertight case.
Whether malice aforethought was established
Malice aforethought was proved under section 206 of the Penal Code: the appellant attacked the deceased with an axe and must have known the act would cause death or grievous harm
Applying the Tubere criteria - the nature of the weapon, manner of use, part of the body targeted and injuries inflicted - the appellant attacked the deceased with an axe found at the scene. Following Lawrence Mukaria, one who cuts a person on the head with a sharp instrument must know the act will probably cause death or grievous harm, satisfying section 206.
Whether the mandatory death sentence should be interfered with
Taking into account that the appellant was an orphan, a grandson of and dependent on the deceased, and had been in custody for eight years, a sentence of imprisonment would serve the interests of justice
The Supreme Court in Muruatetu declared the mandatory death sentence for murder unconstitutional and left sentencing discretionary. Weighing the appellant's mitigation - his orphanhood, his dependence on the deceased, his time in custody - and the record, the Court concluded a custodial sentence was appropriate and substituted 25 years imprisonment.
Legal principles established
#- A first appellate court must re-examine and analyse afresh the evidence on record and reach its own conclusions while allowing for the trial court's advantage of observing the witnesses' demeanour
- A case resting entirely on circumstantial evidence must satisfy three tests: the circumstances must be cogently and firmly established, have a definite tendency unerringly pointing to guilt, and form a complete chain excluding any conclusion that the crime was committed by anyone else
- Where an accused bears an evidential burden under section 111(1) of the Evidence Act to explain facts especially within his knowledge, an incredible explanation permits the court to presume facts under section 119 of the Evidence Act
- Discrepancies in prosecution testimony do not vitiate a conviction unless they are so fundamental as to cause prejudice to the accused or go to the root of the case
- Following Muruatetu, the mandatory death sentence for murder under section 204 of the Penal Code is unconstitutional, and an appellate court may substitute an appropriate determinate sentence after considering mitigation
Court orders
#- 1.The appeal against conviction is dismissed
- 2.The appeal against sentence succeeds and is allowed
- 3.The sentence of death is set aside
- 4.In substitution, the appellant shall serve 25 years imprisonment with effect from 10th June, 2015 when he was sentenced
- On appeal from
- High Court of Kenya at Homa Bay
- HCCRC No. 16 of 2012
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal's statutory mandate, including rule 29(1) of the Court of Appeal Rules to re-appraise evidence on a first appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gordon Odhiambo Shem v Republic", Case Analysis (2019). Criminal Appeal No. 109 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/232/eng@2019-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.