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Court of AppealPartially AllowedCriminal Appeal No. 99 of 2019· [2020] KECA 594 (KLR)

Benjamin Kahindi Changawa & another v Republic [2020] KECA 594 (KLR)

Court of Appeal of Kenya
19 June 2020
William OukoW. OukoAMA.K. MurgorSISichale
3,634 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld two police officers' murder convictions but replaced their death sentences with ten years' imprisonment, finding the shootings were not self-defence.

What this practically means

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Executive summary

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The appellants, two police officers, were convicted of murder by the High Court (Mutuku, J) for the fatal shooting of three men, including an administration police officer, at M-Club in Kangemi on 6th October 2014 after responding to a report of an ongoing robbery. They were sentenced to death. Before the Court of Appeal, they raised some 15 grounds, which the court distilled into a single question: whether they were properly convicted for murder. The court, as a first appellate court, subjected the evidence to fresh evaluation and found that the deceased persons offered no resistance: two unarmed men had surrendered and were lying on the floor, and APC Onchuru handed over his pistol. Applying section 17 of the Penal Code and the subjective test for self-defence from DPP v Morgan as adopted in Ahmed Mohammed Omar, the court held there was no immediate or imminent threat and the violence used was unlawful and grossly disproportionate, contrary to statutory and manual requirements that police first use non-violent means and use only proportional force. The appeal on conviction failed. On sentence, the court found the mitigating circumstances - first offenders, long and unblemished public service, and family responsibilities - sufficient to interfere with the death sentence, which it substituted with ten years' imprisonment from the date of conviction. The judgment was delivered by Ouko (P) and Murgor, JA, with Sichale, JA declining to sign, being of a different opinion, producing a split bench.

Key legal issues

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01

Whether the killing of the three deceased persons amounted to lawful self-defence under section 17 of the Penal Code

Holding

No. The deceased offered no resistance; two were unarmed and lying on the floor, and APC Onchuru handed over his pistol. There was no immediate or imminent threat, so the violence was unlawful.

Reasoning

Applying the subjective test from DPP v Morgan as explained in Ahmed Mohammed Omar, the court re-evaluated the evidence as a first appellate court. Eye witnesses were unanimous that the deceased surrendered; scenes-of-crime evidence showed no pistol marks on walls or floor, and the pistol was apparently used on Onchuru by someone else. The force was disproportionate and unjustified.

p. 4
02

Whether the death sentence was properly imposed

Holding

No. Given mitigating circumstances (first offenders, long clean public service, family men), the court substituted the death sentence with ten years' imprisonment.

Reasoning

Counsel cited Muruatetu on mandatory sentences. The court found the mitigating factors sufficient to interfere with the sentence of death, while upholding the convictions.

p. 4

Legal principles established

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  • The burden is on the prosecution to disprove that the accused held the belief that he was being attacked or in imminent danger of being attacked, and that the violence used was unlawful.
  • Police officers effecting arrest must attempt non-violent means first, and any force used must be proportional to the objective, the seriousness of the offence and the resistance offered.

Court orders

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  1. 1.The appeal on conviction is dismissed
  2. 2.The sentence of death imposed by the High Court is set aside and substituted with a custodial sentence of ten (10) years from the date of conviction by the High Court

Authorities

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Legislation

  • Penal Codesection 203
  • Penal Codesection 204
  • Penal Codesection 206
  • Penal Codesection 17
  • Police Actsection 28
  • Kenya Police Manual
  • National Police Service ActSixth Schedule
  • Court of Appeal RulesRule 32(2)

Cases cited (4)

  • Palmer vs. The Queen
    [1971] AC 814, 832
  • Ahmed Mohammed Omar & 5 others vs. Republic
    (2014) eKLR
  • DPP vs. Morgan
    (1975) 2 ALL ER 347
  • Francis Karioki Muruatetu & another vs. Republic & 5 others
    (2016) eKLR
On appeal from
High Court of Kenya at Nairobi
HC.CR.C No. 66 of 2015
Jurisdiction invoked
First appellate criminal appeal to the Court of Appeal from the High Court (Court of Appeal Rules, Rule 32(2) referenced for delivery of judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Benjamin Kahindi Changawa & another v Republic [2020] KECA 594 (KLR)", Case Analysis (2020). Criminal Appeal No. 99 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/594/eng@2020-06-19

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