Paul Ng’ang’a Wanjiru v Republic [2020] KECA 473 (KLR)

The Court observed that Muia was in the car and gave direct testimony that the appellant and another person assaulted the deceased. Circumstantial evidence authorities require exclusion of co-existing circumstances weakening the inference of guilt, but that test was not the governing one where direct evidence exists. The question became whether other evidence corroborated the accomplice evidence, which the Court found it did: the dying declaration, the bloodstains, the DNA profile and the appellant's flight.

The Court applied the statutory definition of a confession, holding that the statement must lead to a reasonable inference that its maker committed the offence. Muia's statement exculpated himself and implicated the appellant. Relying on Pakala Narayana Swami, self-exculpatory statements are not confessions. It was a statement under inquiry, produced in support of sworn testimony subject to cross-examination, distinguishing Kanini Muli where a confession made at an inquest was sought to be used at trial.

The Court read sections 122A to 122D as protecting the dignity and bodily integrity of a suspect guaranteed by Article 28 of the Constitution, since the listed samples are extracted invasively by a medical practitioner, with provision for force and written consent. No such invasion occurred here, as the analysis compared bloodstains already at the scene with the deceased's DNA profile. Abiud Muchiri Alex, where samples were taken by a police corporal, was distinguished as not an authority for invalidating crime-scene samples.

Section 33(a) admits statements by a dead person as to the cause of death or the circumstances of the transaction resulting in death, whether or not made under expectation of death. The deceased, bleeding profusely, identified the assault in the appellant's car and died some 15 hours later. The trial judge cautioned herself per Choge v Republic and found corroboration in the appellant's own admission that the deceased was in his car, the fresh profuse bleeding, and her identification of Muia.

Applying Michael Murithi Kinyua, the Court noted corroboration is a rule of practice, not law. The trial judge warned herself, found Muia credible, and did not rely on his evidence alone. Independent photographic evidence of blood concentrated on the front left of the car matched Muia's account. The appellant's flight when pretending to lock his car was, per Alex Wafula, not the conduct of an innocent person and supplied corroboration.

The motive ground rested on the mistaken premise that the case was purely circumstantial, the context in which Libambula treats motive as important. In any event section 9(3) declares motive immaterial, as reaffirmed in Karukenya and Ogeto. Malice aforethought was inferable from the attempt to strangle the deceased, the severe blunt-force head injuries causing death, following Daniel Muthee where malice was inferred from vicious panga cuts.

The record showed the trial judge carefully considered the appellant's unsworn statement and rejected it on its merits without adverse inference merely because it was unsworn, consistent with May v Republic. A party must expect adverse rulings; the remedy is appeal, not withdrawal of counsel. No gaps in the prosecution case undermining the conviction were identified.