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Court of AppealPartially AllowedCriminal Appeal No. 119 of 2018· [2020] KECA 341 (KLR)

Alexander Mbevo Mutemi v Republic [2020] KECA 341 (KLR)

Court of Appeal of Kenya
25 September 2020
5,411 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 circumstantial evidence but replaced the death sentence with 30 years' imprisonment.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Murgor, Sichale and ole Kantai, JJ.A) heard a first appeal by Alexander Mbevo Mutemi against his conviction for the murder of Stella Makaa Makuthu and the mandatory death sentence imposed by Dulu, J. of the High Court at Garissa on 23rd November 2017. The court framed five issues: whether a trial conducted by two judges occasioned a miscarriage of justice; whether murder was proved beyond reasonable doubt; whether the circumstantial evidence met the required threshold; whether the trial judge shifted the burden of proof; and whether the sentence was excessive. On the first issue, the court held that the succeeding judge complied with section 200(3) of the Criminal Procedure Code by informing the appellant, in the presence of his advocate, of his right to recall witnesses, and the appellant's election to continue the trial precluded any later complaint of a miscarriage of justice. On the evidence, the court found no eyewitness, but held that the circumstantial evidence - the appellant's presence with the deceased shortly before her death, his red t-shirt and the murder knife recovered at the scene, and the implausibility of his claim that one Nino Lengupaye was the attacker - formed a chain so complete as to exclude any other perpetrator, and that malice aforethought was established under section 206(b) of the Penal Code. The complaint of burden-shifting was rejected as the prosecution had verified Nino's alibi. The court dismissed the appeal against conviction but, applying the Supreme Court's decision in Muruatetu and considering the appellant's status as a first offender and his mitigation, allowed the appeal against sentence, setting aside the death sentence and substituting 30 years' imprisonment from the date of conviction. No costs order was made.

Key legal issues

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01

Whether a trial conducted by two judges under section 200 of the Criminal Procedure Code occasioned a miscarriage of justice

Holding

No miscarriage of justice arose; the succeeding judge informed the appellant of his right to recall witnesses in the presence of his advocate, and the appellant elected to continue from where the trial had reached.

Reasoning

Section 200(3) requires the succeeding judge to inform the accused of the right to demand that any witness be resummoned and reheard. The record showed Dulu, J. pointedly asked the appellant in the presence of his advocate whether the trial should proceed from where Mutuku, J. had reached, and the appellant asked for the case to proceed. Neither the appellant nor his advocate sought a recall or a trial de novo, so the complaint was rejected as an afterthought.

p. 4
02

Whether the circumstantial evidence proved murder beyond reasonable doubt

Holding

Yes; the chain of circumstantial evidence pointed solely to the appellant as the person who murdered the deceased.

Reasoning

No witness saw the killing, but the evidence showed the appellant left work, hired a boda boda to Kavililo, was seen with the deceased in a red t-shirt shortly before her body was found stabbed, his red t-shirt and the murder knife lay beside the body, and his claim that Nino Lengupaye attacked them was implausible given police verification that Nino was in Nanyuki. The cumulative circumstances formed a complete chain excluding any other perpetrator.

p. 6
03

Whether the learned judge shifted the burden of proof to the appellant

Holding

No; the complaint was unfounded because the prosecution's evidence displaced the appellant's claim that Nino was present, making it an unsuccessful attempt to displace strong culpatory evidence.

Reasoning

The prosecution verified through Cpl. Tunai that Nino was in Nanyuki on the material day, evidenced by a bus ticket and lodging receipt. The appellant's allegation of Nino's presence at the scene was never reported to the police and was unsupported by any other witness, so it was an afterthought. The recovery of the appellant's red t-shirt at the scene placed only a rebuttable presumption on him to explain, which he failed to do; that did not shift the burden of proving guilt.

p. 5
04

Whether malice aforethought was established and whether the death sentence should be reviewed

Holding

Malice aforethought was established under section 206(b) of the Penal Code; the mandatory death sentence was set aside and substituted with 30 years' imprisonment.

Reasoning

The appellant, a jilted lover, lured the deceased to a secluded place and stabbed her repeatedly, knowing stabbing with a knife would cause grievous harm or death, satisfying section 206(b). Because Muruatetu declared the mandatory death sentence unconstitutional, and the appellant was a first offender who showed remorse and pleaded for leniency in mitigation, the court substituted a custodial sentence of 30 years from the date of conviction.

p. 5

Legal principles established

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  • Where a succeeding judge takes over a trial under section 200(3) of the Criminal Procedure Code and informs the accused of the right to have witnesses resummoned and reheard, the accused or counsel who elects not to recall witnesses cannot later complain of a miscarriage of justice.
  • A case resting entirely on circumstantial evidence must satisfy the three tests in Abanga alias Onyango v Republic: the circumstances must be cogently and firmly established, of a definite tendency unerringly pointing towards guilt, and cumulatively form a chain so complete that there is no escape from the conclusion that the accused committed the crime and none else.
  • The mandatory death sentence for murder is no longer applicable following Muruatetu; a first appellate court may substitute it with a custodial sentence considering the offender's status as a first offender, remorse and mitigation.

Court orders

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  1. 1.The appeal against conviction is dismissed
  2. 2.The appeal against sentence is allowed
  3. 3.The death sentence imposed by the trial court is set aside and substituted with a custodial sentence of 30 years' imprisonment from the date of conviction by the High Court

Authorities

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Legislation

  • Penal Code, Laws of Kenyasection 203
  • Penal Code, Laws of Kenyasection 204
  • Penal Code, Laws of Kenyasection 206
  • Penal Code, Laws of Kenyasection 206(b)
  • Criminal Procedure Codesection 200
  • Criminal Procedure Codesection 200(3)

Cases cited (7)

  • Abdi Aden Mohammed vs Republic
    [2017] eKLR
  • Kalume Fondo Gona vs Republic
    [2018] eKLR
  • Okeno vs Republic
    [1972] EA 32
  • Makau & Another vs Republic
    [2010] 2 EA 283
  • Abanga alias Onyango vs Republic
    Cr. App. No. 32 of 1990
  • Sawe v. Republic
    [2003] eKLR
  • Francis Karioko Muruatetu & Another vs Republic
    [2017] eKLR
On appeal from
High Court of Kenya at Garissa
Criminal Case No. 18 of 2013
Jurisdiction invoked
First appeal to the Court of Appeal under the Criminal Procedure Code against conviction and sentence (Criminal Appeal No. 119 of 2018)

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, "Alexander Mbevo Mutemi v Republic [2020] KECA 341 (KLR)", Case Analysis (2020). Criminal Appeal No. 119 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/341/eng@2020-09-25

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