Charles Njonjo Gituro v Republic [2019] KECA 855 (KLR)
The bottom line
#Kenya's Court of Appeal reduced a murder conviction and death sentence to manslaughter with a 20-year prison term, clarifying how dying declarations work under Kenyan law.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether it was the appellant who burnt the deceased or did the deceased try to commit suicide
- 2.If we find the appellant responsible for the burns on the deceased, did he have the necessary mens rea?
- 3.Was the deceased’s statement properly admitted in evidence and what was it’s probative value?
- 4.Ultimately, what offence if any, was proved by the sum total of the evidence on record.
Key legal issues
#Whether the deceased's statement was admissible as a death declaration notwithstanding that she was not contemplating imminent death
The statement was admissible. Section 33 of the Evidence Act admits statements as to the cause of death whether or not the maker was under expectation of death; the English 'in extremity' test does not govern in Kenya. The declaration was corroborated by statements to Mercy and the deceased's mother.
The court distinguished the English common law requirement of settled hopeless expectation of imminent death from the Kenyan statutory position under section 33 of the Evidence Act, relying on Choge v Republic and East African Court of Appeal authority. It emphasised the statutory words admitting such statements 'whether the person who made them was or was not, at the time when they were made, under expectation of death.' Because the statement was consistent with declarations to PW1 and PW5, its probative value was very strong.
Whether malice aforethought was proved
Mens rea was not proved to the required standard. Although the appellant kicked a lit tin lamp towards the bed knowing fire is dangerous, the positioning of the lamp was not clear and the court could not be satisfied he anticipated the extent of harm; the benefit of doubt was given to the appellant.
Applying Nzuki v R, malice aforethought requires an intention to cause death or grievous bodily harm, or knowledge of a serious risk coupled with deliberate exposure of the victim to that risk. Factors such as the weapon used, the part of the body injured and the accused's conduct are relevant. The court found the appellant knew kicking a lit lamp was dangerous, but because the lamp's position was unclear, it could not exclude the possibility that he did not anticipate the extent of the harm, and gave him the benefit of doubt.
Who caused the burns that led to the deceased's death
The appellant caused the burns by kicking the lit tin lamp onto the bed; the suicide theory was rejected as defying logic, so actus reus was proved.
Re-evaluating the evidence as a first appellate court, the court compared the deceased's account, corroborated by her neighbour and mother and her hospital statement, against the appellant's suicide theory. The appellant's conduct - reporting a suicide at the police post, following the injured woman with fury, abusing her and failing to take her to hospital - was inconsistent with an attempted suicide by the deceased and consistent with someone punishing her for reporting a domestic dispute to the chief.
Legal principles established
#- In Kenya, admissibility of a dying declaration does not depend on the declarant having a settled, hopeless expectation of imminent death; it depends on section 33 of the Evidence Act, which admits statements as to the cause of death whether or not the maker was under expectation of death. Lower courts must apply the statutory test, not the English common law test.
- It is not a rule of law that a conviction must be corroborated by evidence independent of a dying declaration, but it is generally very unsafe to base a conviction solely on a dying declaration made in the absence of the accused unless there is satisfactory corroboration.
- Where the evidence establishes actus reus but falls short of proving malice aforethought to the required standard, the appropriate course is to substitute a conviction for the cognate offence of manslaughter rather than acquit.
Court orders
#- 1.Set aside the conviction for the offence of murder and the death sentence imposed by the trial court
- 2.Substitute therefor a conviction for the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code
- 3.Impose a sentence of 20 years imprisonment from the date of conviction
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.CR.C No. 69 of 2009
- Jurisdiction invoked
- First appellate jurisdiction over a conviction and sentence by the High Court sitting as a trial court in a criminal case (Criminal Appeal No. 512 of 2010)
Relief refused
#Complete acquittal on the basis that the deceased committed suicide and the evidence could not support any conviction
The court found the appellant responsible for the burns; the suicide theory was rejected and actus reus proved, so the appellant was convicted of the lesser offence of manslaughter instead of being acquitted.
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.
In Kenya the admissibility of a dying declaration does not depend, as it does in England, upon the declarant having at the time, a settled, hopeless expectation of imminent death
But it is, generally speaking, very unsafe to base a conviction solely on the dying declaration of a deceased person, made in the absence of the accused and not subject of crossexamination, unless there is satisfactory corroboration.
In determining a charge of murder whether malice aforethought has been proved, the court must take into account factors such as the part of the body injured, the type of weapon used if any, the type of injuries inflicted upon the deceased and the subsequent conduct of the accused person.
The mere fact that the accused’s conduct is done in the knowledge that grievous harm is likely or highly likely to ensue from his conduct is not by itself enough to convert a homicide into a crime of murder.
Accordingly, we set aside conviction for the offence of murder and the death sentence imposed by the trial court and substitute therefor a conviction for the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code.
Having considered the circumstances surrounding the matter we are persuaded that a sentence of 20 years imprisonment from the date of conviction is mete and just, and we impose the same.
Issues in the judgment
#The judgment at one point records the deceased's mother as PW4 but elsewhere refers to her as PW5 when describing corroboration.
Typographical confusion in the judgment referring to 'the appellant' where the deceased is meant in the analysis of the burns.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Njonjo Gituro v Republic [2019] KECA 855 (KLR)", Case Analysis (2019). Criminal Appeal No. 512 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/855/eng@2019-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.