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Court of AppealPartially AllowedCriminal Appeal No. 10 of 2018· [2020] KECA 777 (KLR)

Faraji Konde Kazungu v Republic [2020] KECA 777 (KLR)

Court of Appeal
24 April 2020
5,844 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal upheld a murder conviction built on DNA and circumstantial evidence but replaced the death sentence with 40 years in prison.

What this practically means

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Executive summary

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The appellant, convicted jointly with three co-accused of the murder of Police Constable Harrison Maitha Mweni during an MRC-linked attack on a public rally at Mtomondoni, Mtwapa on 4th October 2012, appealed to the Court of Appeal at Mombasa against conviction and sentence. He was convicted by the High Court (M. Muya, J.) on 23rd March 2016 and sentenced to death, while his co-accused were acquitted. On appeal, counsel argued that the circumstantial evidence was unreliable, that the blood-stained exhibits did not belong to the appellant, that blood samples were improperly obtained in breach of Articles 50(2)(c) and 50(4) of the Constitution and the Evidence Act, and that the death sentence was excessive. The Court framed three issues: whether the prosecution proved its case to the required standard; whether the blood samples were illegally obtained; and whether the sentence should be interfered with. Reiterating the Okeno duty on a first appeal and the Sawe test for circumstantial evidence, the Court held that the evidence of PW5, the recovery of blood-stained shoes and shirt from the appellant's house, and the DNA match with the deceased's blood formed a complete chain pointing irresistibly to the appellant's guilt, with malice aforethought and common intention under Sections 21 and 206 of the Penal Code established. The complaint about the blood samples failed as they were taken with the appellant's consent. The appeal against conviction was dismissed, but applying Muruatetu, the Court set aside the death sentence and substituted 40 years' imprisonment from the date of the initial sentence. The appeal was accordingly partially allowed.

Key legal issues

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01

Whether the murder was proved to the required standard where the conviction rested entirely on circumstantial evidence

Holding

Yes. The testimony of PW5 placing the appellant at the oathing ceremony and equipping him with a panga, corroborated by the recovery of blood-stained items from his house and DNA match with the deceased's blood, formed a complete chain of circumstances. Malice aforethought and common intention under Sections 21 and 206 of the Penal Code were established.

Reasoning

The court reiterated the Sawe test for circumstantial evidence. Nobody saw the appellant strike the deceased, but PW5, who knew him well, saw him take the oath and receive a panga before proceeding to the rally. Blood-stained shoes and shirt were recovered from his house, and DNA profiling matched the blood to that of the deceased. Section 21 of the Penal Code deemed each participant with common intention to have committed the offence. The cumulative circumstances irresistibly pointed to guilt.

p. 5
02

Whether the blood samples taken from the appellant were illegally obtained evidence

Holding

No. The samples were taken with the appellant's consent and approval, and a certificate to that effect was produced without objection; Article 50(4) does not exclude the evidence.

Reasoning

The court applied Article 50(4) of the Constitution, which excludes evidence obtained in violation of rights only where admission would render the trial unfair or be detrimental to the administration of justice. PW15 testified that the appellant was informed of the intention to conduct DNA testing and the samples were taken with his consent and approval at Coast General Hospital. No cross-examination suggested otherwise, and no court order was required.

p. 6
03

Whether the mandatory death sentence should stand in light of Muruatetu

Holding

No. Following Muruatetu, the mandatory death sentence is unconstitutional; the court set it aside and substituted 40 years' imprisonment.

Reasoning

Relying on the Supreme Court's decision in Muruatetu, which held that the mandatory nature of the death sentence under Section 204 of the Penal Code deprives courts of judicial discretion and violates fair trial rights, the court found the trial judge's hands were tied. Although the offence was cruel and a severe sentence was warranted, the court interfered with the death sentence and substituted 40 years' imprisonment running from the original sentencing date.

p. 6

Legal principles established

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  • On a first appeal, the Court of Appeal must analyse and re-evaluate the evidence afresh and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses.
  • A conviction based on circumstantial evidence can stand only where the inculpatory facts are incompatible with the accused's innocence and incapable of explanation on any other reasonable hypothesis, with no co-existing circumstances weakening the chain of evidence.
  • Under Article 50(4) of the Constitution, evidence obtained in violation of a Bill of Rights is excluded only if its admission would render the trial unfair or be detrimental to the administration of justice; where samples are taken with the accused's consent, there is no impropriety.

Court orders

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  1. 1.Appeal against conviction dismissed
  2. 2.Death sentence set aside
  3. 3.Substituted with imprisonment for a term of 40 years from the date the initial sentence was passed on 23rd March 2016

Authorities

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Legislation

  • Penal CodeSection 203
  • Penal CodeSection 204
  • Penal CodeSection 21
  • Penal CodeSection 206
  • Constitution of Kenya, 2010Article 50(2)(c)
  • Constitution of Kenya, 2010Article 50(4)
  • Constitution of Kenya, 2010Article 25
  • Evidence ActSections 25(A), 26 and 29

Cases cited (9)

  • Antony Muriithi vs. O. C. S. Meru Police Station & 2 others
    [2012] eKLR
  • Joan Chebichii Sawe vs. Republic
    [2003] eKLR
  • Okeno vs. Republic
    [1972] EA 32
  • Pandya vs. Republic
    (1957) EA 336
  • Rex vs. Kipkering Arap Koske
    [1949] 16 EACA 135
  • Simoni Musoke vs. R
    [1958] EA 715
  • Sawe vs Rep
    [2003] KLR 364
  • Dickson Mwangi Munene & another vs. Republic
    [2014] eKLR
  • Francis Karioko Muruatetu & Another vs. Republic
    [2017] eKLR
On appeal from
High Court of Kenya at Mombasa
H.C.CR.C. No. 55 of 2012
Jurisdiction invoked
First appeal to the Court of Appeal against conviction and sentence (Criminal Procedure Code / Court of Appeal appellate jurisdiction over High Court criminal trials)

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, "Faraji Konde Kazungu v Republic [2020] KECA 777 (KLR)", Case Analysis (2020). Criminal Appeal No. 10 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/777/eng@2020-04-24

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