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Court of AppealPartially AllowedCriminal Appeal No. 12 of 2017· [2020] KECA 8 (KLR)

Julius Macharia Muriuki & another v Republic [2020] KECA 8 (KLR)

Court of Appeal
6 November 2020
2,714 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 a murder conviction based on eyewitness recognition but replaced the death sentence with 25 years' imprisonment, citing the Muruatetu decision.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Ouko, P., Murgor and Kantai, JJ.A) delivered a single joint judgment in this first appeal from the High Court (Ombija, J.), which had convicted the appellants of the murder of Bernard Bari Mwangi and sentenced the 1st appellant to death, the 2nd appellant, a minor at the material time, being detained at the President's pleasure. The 2nd appellant's appeal was withdrawn, his release having been ordered by the High Court in a separate petition, leaving only the 1st appellant's appeal. The appellant challenged the reliability of PW1's single-eye-witness identification at night, the rejection of his alibi, the sufficiency of proof beyond reasonable doubt, and the constitutionality of the death sentence invoking Muruatetu. The Court, exercising its first-appeal jurisdiction under section 379(1)(a) of the Criminal Procedure Code, re-evaluated the entire evidence. It held that PW1's evidence was one of recognition of a person well known to her, made under favourable electric lighting, reinforced by her calling the appellant by name during the attack and naming him to the police at the first opportunity, and found malice aforethought proved from the vicious knife attack on the abdominal area. The appeal against conviction failed. On sentence, applying Muruatetu and considering the appellant's age of 23 years at the time of the offence, the Court set aside the death sentence and substituted 25 years' imprisonment from the date of conviction. The appeal therefore succeeded only on sentence.

Key legal issues

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01

Sufficiency of identification by recognition at night

Holding

The evidence of PW1, who recognized the appellant under favourable lighting and called him by name during the attack, was safe to sustain a conviction.

Reasoning

Although the attack occurred at night, PW1 and PW7 found the electric lighting at the scene sufficient. PW1 had known the appellant previously as a customer at the bar where she worked and as PW2's ex-boyfriend, saw him peeping into the bar before the attack, identified him by his clothes, called him by name during the attack, and named the assailants to the police at the first opportunity. Post mortem findings were consistent with her account. Nothing was presented to displace the trial court's finding.

p. 3
02

Proof of malice aforethought

Holding

Mens rea for murder was proved beyond reasonable doubt from the vicious nature of the armed attack concentrated on the abdominal area.

Reasoning

There was no evidence of any disagreement or prior confrontation between the deceased and the appellant, yet the attack was vicious. Both appellants appeared to have armed themselves with knives and concentrated their attacks on the abdominal area of their victims, from which the Court inferred the intention to cause grievous harm or kill.

p. 3
03

Sentence in light of Muruatetu

Holding

The death sentence was set aside and substituted with 25 years' imprisonment, taking into account the appellant's youth (23 years at the time of the offence) following Muruatetu.

Reasoning

Counsel urged the Court, drawing on Francis Karioko Muruatetu & another vs. Republic, to reduce the death sentence. Though the attack was vicious, the Court considered the appellant's age of only 23 years at the time of the offence a relevant factor in deciding whether the death sentence was the most appropriate punishment, and substituted a term of 25 years from the date of conviction.

p. 3

Legal principles established

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  • On a first appeal, the Court must subject the entire evidence to a fresh examination and arrive at its own independent conclusions, while bearing in mind that it did not see or hear the witnesses.
  • Evidence of visual identification or recognition must be received with the greatest care, especially where conditions favouring correct identification are difficult, and the circumstances of the identification must be scrutinized.
  • Recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger.
  • To prove murder, the prosecution must establish the death and cause of death, that the accused caused the death through an unlawful act or omission, and malice aforethought.

Court orders

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  1. 1.The appeal against conviction is set aside (conviction for murder upheld)
  2. 2.The death sentence is set aside and substituted with a sentence of imprisonment of 25 years from the date of conviction
  3. 3.The 2nd appellant's appeal marked as withdrawn, having been released by the High Court in H.C Petition No. 250 of 2017

Authorities

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Legislation

  • Penal Codesection 203
  • Penal Codesection 204
  • Penal Codesection 25(2)
  • Criminal Procedure Codesection 379(1)(a)

Cases cited (6)

  • Francis Karioko Muruatetu & another vs. Republic
    [2017] eKLR
  • Okeno vs. Republic
    (1972) E.A. 32
  • Abdala bin Wendo & Another vs. R.
    (1953) 20 EACA 166
  • Cleophas Otieno Wamunga vs. R
    (1989) eKLR
  • Paul Etole & Reuben Ombima vs. R
    (2001) eKLR
  • Anjononi & Others vs. Republic
    (1976-80) 1 KLR 1566
On appeal from
High Court of Kenya at Nairobi
H.C.CR.C No. 54 of 2010
Jurisdiction invoked
Section 379(1)(a) of the Criminal Procedure Code (first appeal on grounds of law or fact, or of mixed law and fact)

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, "Julius Macharia Muriuki & another v Republic [2020] KECA 8 (KLR)", Case Analysis (2020). Criminal Appeal No. 12 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/8/eng@2020-11-06

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