Gabriel Makhoha v Republic [2019] KECA 303 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a murder conviction based on eyewitness testimony but replaced the death sentence with fifteen years' imprisonment.
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 deceased died as a result of an act or omission on the part of the appellant
- 2.If so, whether the act or omission was committed with malice aforethought
- 3.Whether the appellant's sentence was proper
Key legal issues
#Whether the prosecution proved beyond reasonable doubt that the appellant caused the death of the deceased
Yes. Three eyewitnesses who knew the appellant well and recognised him under moonlight and lantern light consistently testified that they saw him stab the deceased; the absence of forensic evidence on the panga was not fatal to the case.
The Court re-evaluated the evidence as on a first appeal. Calisto, Chrispinus and Patrick were acquainted with the appellant and identified him by recognition. Their testimony was consistent that there was a full moon and a lantern and that the appellant stabbed the deceased with a panga. The trial court's misdirection on the distance between Calisto and the appellant did not invalidate the conclusion that the defence was false and the identification positive.
Whether malice aforethought was established
Yes. Malice aforethought was inferred under Section 206(b) of the Penal Code from the use of a double-edged panga to stab the deceased in the stomach, exposing his intestines, showing knowledge that death or grievous harm was probable.
Applying Section 206(a) and (b) and the subjective-intention test in Nzuki v Republic, the Court found that stabbing the deceased with a panga sharpened on both sides, to the extent that his intestines were exposed, demonstrated knowledge that the act would probably cause death or grievous harm. Express malice was unnecessary; implied malice sufficed and both actus reus and mens rea were proved to the required standard.
Whether the delay of three months in arraigning the appellant violated his constitutional rights so as to invalidate the trial
No. The alleged breach, even if established, gives rise only to a civil remedy for compensation; moreover, the complaint was an afterthought as it was not raised before the High Court.
Relying on Julius Kamau Mbugua v Republic, the Court held that an unlawful detention does not exonerate an accused from the serious offence charged; the appropriate remedy is compensation under Section 72(6) of the former Constitution, sought in a different forum. Since the issue was not raised at trial, it could not be entertained on appeal.
Whether the death sentence was proper
No. Following Muruatetu, the mandatory death sentence is unconstitutional. The trial judge failed to exercise sentencing discretion or give the appellant an opportunity to mitigate, so the Court substituted fifteen years' imprisonment.
The Supreme Court in Muruatetu declared the mandatory nature of the death sentence unconstitutional. The learned Judge, treating the sentence as mandatory, neither exercised his discretion nor allowed mitigation. The Court of Appeal therefore intervened, and taking into account the circumstances of the case, considered fifteen years an appropriate sentence, running from the date of the High Court judgment.
Legal principles established
#- On a first appeal, the appellate court must re-evaluate the evidence afresh, weigh conflicting evidence, and draw its own conclusions, while making allowance for the trial court's advantage of hearing and seeing the witnesses
- A first appellate court cannot interfere with findings based on the credibility of witnesses unless no reasonable tribunal could make such findings or the trial court erred in its findings or acted on wrong principles
- The absence of forensic evidence linking a weapon to the accused is not fatal to the prosecution case where there is sufficient eyewitness evidence establishing the nexus
- An unlawful detention does not exonerate an accused from the crime charged; the remedy for such breach is a civil claim for compensation, to be sought in a different forum
- Malice aforethought may be inferred under Section 206(b) of the Penal Code where the accused knows that the act causing death will probably cause death or grievous harm, even absent express malice
Court orders
#- 1.Dismissal of the appeal against conviction
- 2.Setting aside of the sentence of death imposed by the trial court
- 3.Substitution of a sentence of fifteen (15) years imprisonment to take effect from the date of the judgment of the High Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Busia
- Criminal Case No. 6 of 2006
- Jurisdiction invoked
- First appeal under Rule 29(1)(a) of the Court of Appeal Rules, 2010
Relief refused
#Appeal against conviction
The evidence of three eyewitnesses proved beyond reasonable doubt that the appellant was positively identified as the person who stabbed the deceased, and both actus reus and malice aforethought were proved to the required standard
Complaint of violation of constitutional rights due to delay in arraignment
The complaint was an afterthought, not raised in the trial court, and could only give rise to a civil remedy in a different forum
Costs
No costs order was made 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.
The upshot of the above is that we dismiss the appellant's appeal against his conviction, but allow the appeal against sentence, to the extent of setting aside the sentence of death that was imposed upon him by the trial court, and substituting thereto a sentence of fifteen (15) years imprisonment to take effect from the date of the judgment of the High Court.
It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions.
While the forensic evidence may have strengthened the prosecution's case, the absence of such forensic evidence was not fatal to the prosecution case as there was sufficient evidence implicating the appellant
While there was no evidence of the appellant having express malice towards the deceased, his action of stabbing the deceased with the panga on the stomach falls within the provisions of Section 206 (b) of the Penal Code and malice aforethought must therefore be inferred.
Issues in the judgment
#The judgment records the learned Judge's description of the distance between Calisto and the appellant inconsistently with the evidence, a misdirection the Court itself notes
The coram lists Criminal Case No. 6 of 2006 in the High Court but the events occurred in January 2007; the case number date precedes the offence date
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gabriel Makhoha v Republic [2019] KECA 303 (KLR)", Case Analysis (2019). Criminal Appeal No. 131 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/303/eng@2019-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.