Kokane & 3 others v Republic (Criminal Appeal 30, 31, 32 & 33 of 2015) [2019] KECA 960 (KLR)
The bottom line
#Kenya's Court of Appeal upheld four murder convictions, confirming that common intention can convict group members who didn't strike the fatal blow.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Were the appellants positively identified as some of the assailants and/or were they placed at the scene of crime?
- 2.Did the trial court err in invoking the doctrine of common intention?
- 3.Was the offence of murder established against the appellants?
Key legal issues
#Reliability of identification and recognition evidence and failure to give names in first reports
The failure by some witnesses to give names or descriptions in their initial reports was cured by Amos (PW1), who named the appellants to the police barely an hour after the attack, corroborating the recognition evidence.
The Court acknowledged that ideally witnesses should record names or descriptions in initial reports, as this tests the veracity of identification evidence. However, the recognition evidence of Phillip, John, Peter and Bruce was corroborated by Amos, who named the appellants in his first report to the police soon after the incident, and this evidence remained consistent at trial. The favourable conditions (daylight, unmasked attackers, prolonged attack) further supported reliability. The alibi defences were displaced.
Effect of contradictions as to the weapons the appellants were armed with
The contradictions as to weapons were minor and did not go to the root of the conviction or prejudice the defence.
The Court applied its settled position that human recollection is not infallible and some discrepancy must be expected; indeed, some inconsistency may signify honesty while unusual uniformity may signal fabrication. Applying that standard, the contradictions regarding whether particular appellants were armed with a panga, arrow or rungu did not undermine the recognition evidence placing the appellants at the scene, which remained intact.
Application of the doctrine of common intention under Section 21 of the Penal Code
The doctrine was properly invoked: the appellants formed a common intention to unlawfully bar the deceased and his agents from accessing the camp by any means, and the fatal stabbing was a probable consequence of that unlawful purpose.
Although none of the appellants inflicted the fatal stab (Salat did), the Court found the appellants formed a common intention to unlawfully block the deceased and his agents from accessing Scorpion Camp by any means possible, lay in wait and ambushed them while armed with weapons. In prosecuting that unlawful purpose a violent confrontation erupted leading to the deceased's death, satisfying the five ingredients of Section 21 of the Penal Code.
Malice aforethought
Malice aforethought was established from the weapons used and the injuries inflicted on the deceased and his companions.
Guided by the East African Court of Appeal's holding in Rex v Tuper s/o Ocher, the Court held that an inference of malice will flow more readily from the use of a spear or knife than a stick. The appellants viciously attacked the deceased and his companions with weapons including pangas, knives, spears and arrows, and the deceased was stabbed on the left side of his chest, from which malice aforethought could properly be inferred.
Sentence
The 40-year sentence was sound in law, having been imposed after consideration of mitigation in accordance with the Muruatetu decision.
The trial Judge considered the mitigation and victim impact statement and, noting the seriousness of the offence and the loss of the deceased's life, imposed a stiff and deterrent sentence of 40 years imprisonment on each appellant. The Court found the sentence had been imposed in the exercise of discretion consistent with the Supreme Court's holding in Francis Karioko Muruatetu & another v R and saw no reason to interfere.
Legal principles established
#- A first appellate court must conduct an exhaustive re-evaluation of the evidence, weigh conflicting evidence, and draw its own independent conclusions while bearing in mind that it did not see the witnesses' demeanour.
- Where the case against an accused depends wholly or largely on visual identification or recognition, the court must warn itself of the special need for caution before convicting.
- Witnesses should, ideally, give the name or description of an assailant they recognized in their initial report, as such description tests the veracity of identification and recognition evidence.
- Minor discrepancies in witness evidence that do not go to the root of the conviction or prejudice the defence do not invalidate a conviction; whether discrepancies are material depends on the circumstances of each case.
- An inference of malice aforethought may be drawn from the weapon used and the part of the body injured.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The convictions of the appellants for murder and the sentences of 40 years imprisonment each, as imposed by the High Court, remain undisturbed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Mombasa
- H.C.CR.C No. 21 of 2010
- Jurisdiction invoked
- First appellate jurisdiction over the High Court under the Constitution and the Court of Appeal's power to reappraise evidence in a first appeal
- Consolidated with
- Criminal Appeal No. 30 of 2015, Criminal Appeal No. 31 of 2015, Criminal Appeal No. 32 of 2015, Criminal Appeal No. 33 of 2015
Relief refused
#The appellants' prayer to have the conviction quashed on grounds of insufficient and contradictory evidence and inapplicability of the doctrine of common intention
The Court found the recognition evidence reliable, the contradictions non-prejudicial, and the doctrine of common intention properly invoked
Costs
No order as to costs is recorded in the judgment; the appeal having failed, no costs order was made.
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.
Accordingly, we find that the appeal herein lacks merit and is hereby dismissed.
Briefly put, it entails an exhaustive appraisal and re-evaluation of the evidence.
Common intention generally implies premeditated plan, but this does not rule out the possibility of a common intention developing in the course of events though it might not have been present to start with
we are of the view that the aforementioned discrepancies neither went to the root of the appellants’ conviction nor prejudiced their defence. The recognition evidence which placed them at the scene of the crime remained intact.
It (the court) has a duty to perform in considering the weapon used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established
Issues in the judgment
#The judgment states that the deceased obtained his Exclusive Prospecting Licence in 1973 under the Mining Act, Cap 306 (repealed by the Mining Act, 2016), yet the fatal incident occurred in 2009 and the trial judgment was delivered in 2014 - a repeal date of 2016 post-dates the events and trial, which appears anomalous on the face of the judgment.
Witness numbering in the judgment is internally inconsistent: Sgt. Kenneth Sulubu is referred to as PW3, but John Mumo is also earlier described as PW3.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kokane & 3 others v Republic (Criminal Appeal 30, 31, 32 & 33 of 2015) [2019] KECA 960 (KLR)", Case Analysis (2019). Criminal Appeal No. 30, 31, 32 & 33 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/960/eng@2019-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.