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Court of AppealDismissedCriminal Appeal No. 123 of 2019· [2020] KECA 345 (KLR)

Aggrey Mang’ong’o Amugune v Republic [2020] KECA 345 (KLR)

Court of Appeal
25 September 2020
5,557 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal upheld a murder conviction and death sentence based entirely on circumstantial evidence, confirming flight and hiding can prove guilt.

What this practically means

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Executive summary

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The Court of Appeal (M'Inoti, Murgor and ole Kantai, JJ.A) dismissed the appellant's appeal against his conviction and death sentence for the murder of two siblings, Amina and Afzal, at their South C home on 24th October 2011. The appellant, a casual labourer who worked three days a week for the family, was convicted by Lessit, J of the High Court on wholly circumstantial evidence. The Court framed five issues: the sufficiency of the circumstantial evidence, evaluation of contradictions, the mode of arrest, the defence and alibi evidence, and compliance with section 200 of the Criminal Procedure Code. Applying the three-part test from Abanga alias Onyango and Makau, the Court found the evidence placed the appellant alone in the house with the deceased after Anwar left for the mosque at 1.00 p.m.; the absence of a signed final payment entry on Amina's payment schedule undermined his claim of an amicable departure at 11.00 a.m.; the alleged new job at Msafiri Hotel was a hoax given irreconcilable dates; and his eleven months in hiding portrayed a guilty mind. Malice aforethought was established under the Tubere criteria from the nature and targeting of the head injuries. The section 200 complaint failed because the record showed the appellant had elected to proceed without recalling witnesses. The date mis-recording of 2010 for 2011 was held non-fatal and curable under section 382. Although Muruatetu had declared the mandatory death sentence unconstitutional, the Court, noting the appellant's refusal to mitigate and absence of remorse, declined to review the sentence and upheld both conviction and sentence.

Key legal issues

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01

Whether the circumstantial evidence proved the appellant's guilt of murder beyond reasonable doubt

Holding

Yes; the evidence placed the appellant alone in the house with the two deceased after Anwar left for the mosque, and the chain of circumstances pointed conclusively to him

Reasoning

The court applied the three tests for circumstantial evidence. The appellant was at the scene; the absence of any record of final payment on the schedule he signed undercut his claim of amicable departure at 11.00 a.m.; discrepancies in the new-job story rendered it a hoax; and his disappearance and eleven months in hiding portrayed a guilty mind.

p. 4
02

Whether malice aforethought was established

Holding

Yes; the nature of the injuries, the weapon used and the manner of the attack established malice aforethought

Reasoning

Guided by Tubere, the court considered the weapon, the part of the body targeted and the manner of use. Both deceased suffered severe head injuries from blunt force trauma, with deep cuts on both sides of the head and blood splattered throughout the house, leaving no doubt that the appellant intended to cause grievous harm or death.

p. 5
03

Whether the trial court complied with section 200 of the Criminal Procedure Code on transfer to a new judge

Holding

Yes; the record shows the appellant was informed of his right to recall witnesses or have the case start afresh and elected to proceed, so the complaint was fallacious

Reasoning

The record of 3rd March 2015 showed that the matter was partly heard by Muchemi, J before his transfer, and that the accused opted for the case to proceed from where it had left off without recalling any witness. The appellant was thus afforded the statutory option and chose not to exercise it.

p. 3
04

Whether the discrepancy in the recorded date of the offence (24th October 2010 in some testimony versus 24th October 2011 in the charge sheet) was fatal

Holding

No; since it was undisputed that the offence occurred on 24th October 2011 and all evidence referred to that date, the mis-recording was curable

Reasoning

The error arose from the trial judge's recording of Anwar's and Remigio Vereva's evidence as '24th October 2010'. The court held such mis-recordings are not uncommon and are not necessarily fatal; where the charge sheet and all other evidence point to the correct date, the error is curable under section 382 of the Criminal Procedure Code.

p. 5

Legal principles established

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  • A first appellate court must evaluate the evidence afresh and reach its own independent conclusion, while making allowance for the trial court's advantage of seeing and hearing the witnesses
  • Circumstantial evidence resting entirely on inference must satisfy the three-part test of cogent establishment, definite tendency pointing to guilt, and a complete chain excluding any other reasonable conclusion
  • Flight from the scene, going into hiding and evading arrest for an extended period are conduct portraying a guilty mind and may corroborate circumstantial evidence
  • An erroneous date recorded in trial proceedings is not necessarily fatal where the charge sheet and all evidence point to the correct date, and such error is curable under section 382 of the Criminal Procedure Code

Court orders

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  1. 1.The appeal is dismissed as unmerited
  2. 2.The conviction for the murder of the two deceased and the sentence of death are upheld

Authorities

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Legislation

  • Penal CodeSection 203
  • Penal CodeSection 204
  • Penal CodeSection 206
  • Criminal Procedure CodeSection 200
  • Criminal Procedure CodeSection 201 (1)
  • Criminal Procedure CodeSection 382

Cases cited (6)

  • Kiilu & Another vs Republic
    (2005) 1 KLR 174
  • Makau & Another vs Republic
    [2010] 2 EA 283
  • Abanga alias Onyango vs Republic
    Cr. App. No. 32 of 1990
  • Sawe v. Republic
    [2003] eKLR
  • Republic vs Tubere S/O Ochen
    [1945] 12 EACA 63
  • Francis Karioko Muruatetu & Another vs Republic
    [2017] eKLR
On appeal from
High Court at Nairobi
High Court No. 21 of 2013
Jurisdiction invoked
First appellate jurisdiction over a conviction and sentence from the High Court exercising original criminal jurisdiction (Article 164(3) of the Constitution is the general basis of the Court's appellate jurisdiction, though the judgment itself does not cite the provision)

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, "Aggrey Mang’ong’o Amugune v Republic [2020] KECA 345 (KLR)", Case Analysis (2020). Criminal Appeal No. 123 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/345/eng@2020-09-25

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