Ernest Opalu Okunja v Republic [2019] KECA 448 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a murder conviction but replaced the death sentence with 20 years' imprisonment, applying the Muruatetu decision on mandatory death sentences.
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 evidence was reliable and sufficient to prove the offence of murder beyond reasonable doubt
- 2.Whether the trial court improperly disregarded the appellant's defence and shifted the burden of proof to the appellant
- 3.Whether the appellant and his accomplices shared a common intention under section 21 of the Penal Code
- 4.Whether malice aforethought was established
- 5.Whether, in light of Muruatetu, the mandatory death sentence should be set aside and an appropriate sentence imposed
Key legal issues
#Duty of a first appellate court
The Court must re-appraise the evidence afresh, draw its own inferences of fact, and make allowance for the trial court's advantage in observing witness demeanour.
The Court invoked rule 29(1) of its Rules and the authorities of Isaac Ng'ang'a and Okeno v Republic, re-evaluating the testimony of all five scene witnesses before reaching its own conclusions on credibility and guilt.
Credibility of conflicting identification evidence
The evidence of Ellen, E and M placing the appellant at the scene was consistent and credible; Margaret's contrary evidence and the Chief's hearsay were rightly disbelieved.
The Court found Margaret untruthful because the trial judge who saw her testify disbelieved her, and the Chief's evidence was merely hearsay that he had heard some women attribute the killing to Okwero rather than the appellant.
Common intention under section 21 of the Penal Code
At least four armed assailants invaded the home with a common intention to execute an unlawful purpose; the cutting of Ellen and the deceased was a probable consequence, so each assailant is deemed to have committed the offence.
Applying section 21 of the Penal Code and the ingredients set out in Eunice Musenya Ndui, and Wanjiru d/o Wamerio on common intention developing in the course of events, the Court held all armed assailants liable regardless of who inflicted the fatal cut.
Malice aforethought
Malice aforethought under section 206 of the Penal Code was established by the armed invasion and the infliction of injuries known to be likely to cause death.
The post mortem established death from the inflicted injuries; the fact that all assailants were armed indicated intent to kill, satisfying the statutory definitions of malice aforethought.
Sentence following Muruatetu
The mandatory death sentence under section 204 of the Penal Code is unconstitutional per Muruatetu; this Court, the appeal not having been finalised, could lawfully substitute a term of imprisonment.
Relying on William Okungu Kittiny, Muruatetu binds all courts with immediate effect. The Court elected to finalise the matter itself rather than order a sentence rehearing, holding a 20-year term appropriate given the appellant's circumstances.
Legal principles established
#- A first appellate court must re-evaluate the entire evidence and draw its own conclusions, while allowing for the trial court's advantage of seeing and hearing the witnesses.
- Where persons with common intention prosecute an unlawful purpose and an offence is committed as a probable consequence, each is deemed to have committed the offence, and it is immaterial who struck the fatal blow.
- Muruatetu's declaration that the mandatory death sentence for murder is unconstitutional applies immediately and binds all courts, entitling a court with a pending appeal to impose an appropriate lawful sentence.
Court orders
#- 1.Appeal against conviction dismissed
- 2.Appeal against sentence allowed to the extent of setting aside the death sentence
- 3.Substituted sentence of 20 years imprisonment effective from 2nd December, 2009
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Busia
- HCCRC No. 7 of 2007
- Jurisdiction invoked
- First appeal under the Court of Appeal's appellate jurisdiction over High Court criminal convictions (rule 29(1) of the Court of Appeal Rules)
Relief refused
#Quashing of the conviction for murder
The evidence proved murder beyond reasonable doubt; the trial court properly directed itself
Reduction of sentence to time already served
The court found a 20-year term appropriate rather than time served
Costs
No costs order made in this criminal appeal.
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.
For the foregoing reasons, the appeal against conviction is dismissed. However, the appeal against sentence is allowed to the extent of setting aside the sentence of death and substituting thereto a sentenced of 20 years imprisonment to take effect from 2 nd December, 2009 when the appellant was sentenced.
It is therefore immaterial who among the four persons struck the fatal blow as all had a common intention and each is deemed to have committed the offence.
The first appellate court must itself weigh conflicting evidence and draw its own conclusion.
although the Supreme Court did not outlaw the death sentence, the death sentence was not appropriate herein, and that a term of imprisonment would serve the interest of justice.
Issues in the judgment
#Internal inconsistency in paragraph 19: the sentence states 'it was the deceased who cut both Ellen and the deceased child with a panga' where the context makes clear the intended subject is the appellant, not the deceased.
Typographical error in the final orders: 'a sentenced of 20 years imprisonment' appears instead of 'a sentence of'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ernest Opalu Okunja v Republic [2019] KECA 448 (KLR)", Case Analysis (2019). Criminal Appeal No. 113 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/448/eng@2019-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.