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Court of AppealDismissedCriminal Appeal No. 164 of 2017

Ekiru Ikul & another v Republic [2019] KECA 531 (KLR)

Court of Appeal of Kenya
28 June 2019
2,206 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 two murder convictions and death sentences, ruling that small differences in witness accounts don't undermine otherwise solid evidence.

What this practically means

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Executive summary

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This is a first appeal to the Court of Appeal at Eldoret against the judgment of the High Court at Lodwar (Riechi, J.) dated 25 November 2016 in HC. CR. Case No. 2 of 2015. The two appellants were jointly tried with two co-accused (both acquitted) on four counts of murder contrary to section 203 as read with section 204 of the Penal Code. The charges arose from a shooting at a meeting convened under Turkana customary law to discuss compensation for the rape of the wife of Philip Ekakorone Eris; before the meeting commenced the 1st appellant shot the deceased in counts 1, 2 and 3 and the 2nd appellant shot Philip. The High Court convicted the 1st appellant on counts 1-3 and the 2nd appellant on count 4, sentencing each to death. On appeal, counsel for the appellants argued that the prosecution case was not proved beyond reasonable doubt, that the eyewitness evidence was riddled with inconsistencies and contradictions, and that the death sentences should be revisited in light of Muruatetu. The respondent maintained the eyewitness testimony was credible and reliable. The Court of Appeal, guided by Okeno v Republic on the duty of a first appellate court, re-evaluated the evidence and found that although minor contradictions existed, all witnesses were clear as to which appellant shot which deceased. Applying Joseph Maina Mwangi v Republic, it held the discrepancies were immaterial, the defences were rightly rejected, and malice aforethought could be inferred. The court declined to disturb the death sentences, finding the sentencing discretion properly exercised. The appeal was dismissed in its entirety on 28 June 2019.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the prosecution proved, beyond reasonable doubt, that the 1st appellant shot and killed the deceased in counts 1, 2 and 3
  2. 2.Whether the prosecution proved that the 2nd appellant shot and killed the deceased in count 4
  3. 3.Whether the witnesses' testimony contained material discrepancies and contradictions sufficient to vitiate the convictions
  4. 4.Whether malice aforethought was established
  5. 5.Whether the sentence of death should be set aside in light of Francis Karioko Muruatetu & Anor v Republic and the appellants subjected to re-sentencing

Key legal issues

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01

Proof of the murders beyond reasonable doubt

Holding

The charge in counts 1-3 was proved against the 1st appellant and count 4 against the 2nd appellant to the required standard, on the basis of consistent eyewitness evidence of the shootings.

Reasoning

The court, as a first appellate court, re-evaluated the eyewitness evidence of Lore Chara, Epul Lore, Nakomwa Elvis, Asinyen Lore, Nakam Eris and Lotera Eris. Although individual accounts contained minor contradictions, all witnesses agreed the 1st appellant was armed with a rifle and shot the deceased in counts 1-3, while the 2nd appellant shot Philip. The clinical officer confirmed death from gunshot wounds. The defences placing the appellants away from the scene were rightly rejected.

p. 3
02

Effect of contradictions in prosecution witnesses' evidence

Holding

The discrepancies in the eyewitness accounts were not material and did not prejudice the appellants.

Reasoning

Relying on Joseph Maina Mwangi v Republic, the court held that trials inevitably contain discrepancies and an appellate court interferes only where they are so fundamental as to cause prejudice or affect the conviction and sentence. Here the witnesses were agreed that the meeting to discuss customary compensation had been convened, that both appellants were present, and that each appellant shot specific deceased persons, so the contradictions were inconsequential.

p. 3
03

Sentence - death penalty and Muruatetu

Holding

The death sentence was lawful and merited; the trial judge properly exercised his sentencing discretion and took the circumstances into account.

Reasoning

Counsel had urged the court to apply Francis Karioko Muruatetu & Anor v Republic and remit the appellants for re-sentencing hearing. The court declined, finding that the learned judge properly exercised his discretion in sentencing after considering mitigation submissions and the circumstances, and that four needless deaths justified the death sentence imposed on each appellant.

p. 3

Legal principles established

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  • A first appellate court must itself weigh conflicting evidence, make its own findings and draw its own conclusions, while making allowance for the trial court's advantage of seeing and hearing the witnesses.
  • Discrepancies in witnesses' accounts warrant interference only if they are so fundamental as to cause prejudice to the appellant or affect the conviction and sentence.
  • Malice aforethought may be inferred from an accused shooting the deceased while fully aware that the action was likely to result in death.

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.The convictions of the 1st appellant on counts 1, 2 and 3 and of the 2nd appellant on count 4, and the sentences of death imposed on each appellant, are affirmed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Lodwar
HC. CR. Case No. 2 of 2015
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court in criminal matters (Appellate Jurisdiction Act / Article 164(1)(a) Constitution)

Relief refused

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Set aside the convictions on grounds of inconsistencies and contradictions in the prosecution evidence

The discrepancies were not material; all witnesses were clear as to which appellant shot which deceased

p. 3

Set aside the death sentence and order re-sentencing hearings per Muruatetu

The trial judge properly exercised sentencing discretion and the death sentence was merited

p. 3

Costs

No costs order made (criminal appeal; silent on costs)

Quotable passages

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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 first appellate court must itself weigh conflicting evidence and draw its own conclusion.
p. 2Duty of a first appellate court
In any trial there are bound to be discrepancies.
p. 3Treatment of contradictions in witnesses' evidence
malice can be inferred from the fact that the two appellants shot the deceased persons being fully aware that their action was likely to result in the death of the deceased.
p. 3Inference of malice aforethought
It is accordingly dismissed in its entirety. Those shall be the orders of this court.
p. 3Final orders - dismissal of the appeal

Issues in the judgment

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minor

Typographical errors in the judgment, e.g. 'the 1 st 6and 2nd appellant' and 'minor contractions' for 'contradictions', and an apparent misspelling of 'Muruatetu' in the counsel's citation ('Muruatetu' rendered inconsistently); these do not affect the substance.

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, "Ekiru Ikul & another v Republic [2019] KECA 531 (KLR)", Case Analysis (2019). Criminal Appeal No. 164 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/531/eng@2019-06-28

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