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Court of AppealPartially AllowedCriminal Appeal No. 123 of 2016· [2019] KECA 235 (KLR)

Eric Opiyo Agunda & 3 others v Republic [2019] KECA 235 (KLR)

Court of Appeal of Kenya
31 October 2019
RNR. NambuyeASAsike-MakhandiaSKS. ole Kantai
3,723 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal upheld murder convictions for a mob lynching but replaced the death sentence 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 arising from the judgment of Majanja, J of the High Court at Homa Bay (HCCRC No. 47 of 2013, dated 7th July 2016), which convicted the four appellants of the murder of Michael Odhiambo Akuku and sentenced them to death. The deceased, suspected of stealing a motor cycle, generator and television, was beaten and set ablaze by a mob including the appellants at Mirogi Trading Centre on 4th June 2013. The appellants argued that mens rea was not proved and that conviction should be reduced to manslaughter, and invoked Muruatetu on sentence. In a single judgment of the Court, the Court of Appeal re-evaluated the evidence as required on a first appeal. It found the appellants were positively recognized by several witnesses in a well-lit area and admitted presence at the scene; their conduct of beating, dousing and burning the deceased proved malice aforethought under section 206 of the Penal Code, applying Nzuki v Republic. Although there was no pre-meditated plan, common intention under section 21 was properly inferred from their collective conduct, consistent with Dickson Mwangi Munene and Dracaku s/o Afia. On sentence, applying Muruatetu and Kittiny, the Court held it had jurisdiction to pass any lawful sentence itself without remitting for re-hearing, since mitigation was on record. The appeal against conviction was dismissed, but the appeal against sentence was allowed: the death sentence was set aside and substituted with 25 years imprisonment effective 19th July 2016. No costs order was made.

Key legal issues

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01

Whether the prosecution proved the offence of murder beyond reasonable doubt, including malice aforethought

Holding

Yes. Death, causation, unlawful act and malice aforethought were all proved; the appellants were positively recognized at the well-lit scene, admitted presence there, and their conduct of beating and burning the deceased established intention to kill or cause grievous harm.

Reasoning

The Court set out the four ingredients of murder under section 203 of the Penal Code. It found recognition evidence from PW2, PW3 and PW5 unchallenged and more reliable than identification of a stranger. All appellants admitted presence at the scene, eliminating mistaken identification. Their conduct - beating the deceased senseless, placing a tyre around him, dousing him with petrol and setting him ablaze - satisfied section 206(a) malice aforethought, applying Nzuki v Republic.

p. 3
02

Whether common intention under section 21 of the Penal Code was established despite absence of a pre-meditated plan

Holding

Yes. Common intention can be inferred from the appellants' collective conduct in the mob action lynching the deceased.

Reasoning

The trial judge found no evidence of an initial pre-meditated agreement but inferred common intention from the mob action, a finding the Court noted with approval. Relying on Dickson Mwangi Munene and Dracaku s/o Afia, the Court held that common intention can develop in the course of an offence where an intention to act in concert is inferred from the actions, such as where a number of persons take part in beating a thief.

p. 4
03

Whether the mandatory death sentence should stand and whether the Court could review sentence itself

Holding

No. Following Muruatetu and Kittiny, section 204's mandatory death sentence is unconstitutional; the Court, having the appellants' mitigation on record, substituted 25 years imprisonment instead of remitting for sentence re-hearing.

Reasoning

Muruatetu declared section 204 invalid to the extent it mandates death for murder, while retaining the death penalty as a discretionary maximum. Kittiny held that decision had immediate binding effect on all courts and did not prohibit sentence re-hearings in pending matters. The Court held it could pass any lawful sentence itself; given mitigation (first offenders, families, mob psychology, no planning), death was unwarranted and imprisonment would serve justice.

p. 4

Legal principles established

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  • A first appellate court must subject the entire evidence to a fresh and exhaustive re-evaluation and analysis and reach its own independent conclusions, while allowing for the fact that it did not see or hear the witnesses.
  • Recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger.
  • Common intention under section 21 of the Penal Code need not be pre-arranged; it can be inferred from the conduct of persons acting in concert during the offence.
  • Following Muruatetu, the mandatory death sentence for murder is invalid, and appellate courts have jurisdiction to direct a sentence re-hearing or pass any appropriate sentence the trial court could have lawfully imposed, without remitting the matter for re-hearing where mitigation is on record.

Court orders

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  1. 1.Appeal against conviction dismissed
  2. 2.Appeal against sentence allowed
  3. 3.Sentence of death set aside
  4. 4.Appellants to serve 25 years imprisonment with effect from 19th July, 2016 when they were initially sentenced

Authorities

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Legislation

  • Penal Codesection 203
  • Penal Codesection 204
  • Penal Codesection 206
  • Penal Codesection 206(a)
  • Penal Codesection 21
  • Evidence Actsection 107
  • Court of Appeal Rulesrule 29(1)
  • Constitution of KenyaArticle 165(3)(a)(b)
  • Constitution of KenyaArticle 159(2)(a)(b)
  • Constitution of KenyaArticle 22(4)

Cases cited (7)

  • Francis Karioko Muruatetu & Another v Republic
    (2017) eKLR
  • Issac Ng'ang'a alias Peter Ng'ang'a Kahiga v Republic
    Criminal Appeal No. 272 of 2005
  • Anjononi and others v Republic
    [1976 – 1980] KLR 1566
  • Nzuki v Republic
    [1993] KLR 171
  • Dickson Mwangi Munene & another v. Republic
    [2014] eKLR
  • Dracaku s/o Afia Vs R
    [1963] E.A. 363
  • William Okungu Kittiny v Republic
    Criminal Appeal No. 56 of 2013
On appeal from
High Court of Kenya at Homa Bay
HCCRC No. 47 of 2013
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules (rule 29(1) cited), murder conviction from the High Court

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, "Eric Opiyo Agunda & 3 others v Republic [2019] KECA 235 (KLR)", Case Analysis (2019). Criminal Appeal No. 123 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/235/eng@2019-10-31

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