Cosmas Mulwa Kitulya v Republic [2020] KECA 515 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that an unsigned dying declaration can secure a murder conviction when supported by strong surrounding evidence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court erred in admitting and relying on Maiyo's unsigned dying declaration without corroboration
- 2.Whether the appellant was properly identified in the absence of an identification parade
- 3.Whether the trial judge was biased in failing to consider the appellant's defence
- 4.Whether an adverse inference should have been drawn against the prosecution for failing to call material witnesses
- 5.Whether the prosecution could prove its case despite inconclusive ballistic evidence and the non-production of the murder weapon
- 6.Whether the contradictions and gaps in the prosecution evidence raised reasonable doubt
- 7.Whether the circumstantial evidence unerringly pointed to the appellant as the perpetrator of the two murders
Key legal issues
#Admissibility and sufficiency of an unsigned dying declaration
The statement was properly admitted as a dying declaration under section 33(a) of the Evidence Act despite being unsigned, and there was ample corroboration in the evidence of PW2, PW3 and PW9 and in the appellant's own defence
Section 33(a) permits a statement as to the cause of death whether written or oral; a signature is not a precondition. Although corroboration is not legally required, caution is necessary. Here the trial judge corroborated the declaration with the evidence of PW3 and PW9 who placed the appellant being ejected from the bar shortly before the shot, PW2's testimony, and the appellant's own admission of being armed at the bar.
Identification versus recognition
No identification parade was necessary because the appellant was well known to PW3 and PW9; this was a case of recognition, including voice recognition by PW9
PW9 had been the appellant's lover for about ten months and had spent the previous night with him; PW3 had met him on three previous occasions and spent the whole afternoon with him in daylight. In such circumstances a parade would have been a mere formality, consistent with Ajode v Republic and Githinji v Republic.
Failure to call material witnesses
No adverse inference was warranted because section 143 of the Evidence Act requires no particular number of witnesses and the totality of the evidence was not barely adequate
The Bukenya principle applies only where the prosecution evidence is barely adequate and the withheld witness is important and readily available. Here the postmortem report was admitted with the appellant's consent under section 77 of the Evidence Act, and ample evidence established the cause of death and the events at the bar without the witnesses the appellant identified.
Non-production of the murder weapon and inconclusive ballistics
The trial court did not rely on the ballistic evidence, and the failure to produce the revolver was not fatal since the case was proved on other evidence
The appellant did not dispute being armed with the Taurus revolver on the material day; PW5 testified he had issued the weapon to the appellant and it was never returned. The trial judge rejected the defence that the gun was stolen. Following Karani, Ekai and Ramadhan Kombe, failure to produce the weapon does not preclude conviction.
Sufficiency of circumstantial evidence
The circumstantial evidence satisfied the three-part test and excluded co-existing circumstances weakening the inference of guilt
The appellant was placed at the scene from 2.00 pm to 7.00 pm armed with the revolver; Maiyo was shot immediately after ejecting the appellant; Ngugi was found shot dead while PW9 hid from the appellant; the appellant fled and hid for ten days and failed to report the loss of his firearm, conduct inconsistent with innocence and amounting to corroboration.
Contradictions in the prosecution evidence
No material contradictions or gaps undermining the trial court's judgment were identified; contradictions must be assessed in the totality of the evidence
Following Philip Nzaka Watu, contradictions cannot be picked out in isolation; it is only after considering the evidence in totality that the court can determine whether contradictions are minor or go to the root of the case. The court found no material contradictions here.
Legal principles established
#- A dying declaration does not require a signature to be admissible under section 33(a) of the Evidence Act, and need not be corroborated to found a conviction, though courts must exercise caution in relying on it
- An identification parade is unnecessary in a case of recognition as opposed to identification
- An adverse inference for failure to call a witness is only available where the evidence adduced is barely adequate to establish the prosecution case
- Failure to produce the murder weapon is not necessarily fatal to a conviction if the court believes on the evidence that such a weapon existed at the time of the offence
- Circumstantial evidence must satisfy the three-part test of being cogently established, of definite tendency unerringly pointing to guilt, and forming a complete chain excluding any other person as the perpetrator
- On a first appeal the appellate court must re-appraise the evidence and reach its own independent conclusion, making allowance for the trial court's advantage of hearing and seeing the witnesses
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The conviction and death sentence imposed by the High Court are upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.CR.C. No. 63 of 2010
- Jurisdiction invoked
- First appellate jurisdiction over a conviction and sentence of the High Court under the Criminal Procedure Code
Relief refused
#Quashing of the conviction and setting aside of the death sentence
None of the grounds of appeal had merit; the circumstantial evidence pointed unerringly to the appellant and the conviction was safe and sound
Costs
No costs order is made in this criminal appeal
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.
We agree with the trial court that the statement did not require to be signed to be admitted as a dying declaration.
There need not be corroboration in order for a dying decla-ration to support a conviction but the exercise of caution is necessary in reception into evidence of such declaration as it is generally unsafe to base a conviction solely on the dying declaration of a deceased person.
That indeed is the reason why no identification parade is required in cases of recognition.
So long as the court believe, on the evidence before it, that such a weapon existed at the time of the offence, the court may still enter and has been entering conviction without the weapon being produced as exhibit.
the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all hu-man probability the crime was committed by the accused and none else.
We do not find merit in any of the grounds of appeal and the appeal is hereby dismissed in its entirety. It is so ordered.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cosmas Mulwa Kitulya v Republic [2020] KECA 515 (KLR)", Case Analysis (2020). Criminal Appeal No. 79 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/515/eng@2020-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.