Faraji Konde Kazungu v Republic [2020] KECA 777 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the murder was proved to the required standard where the conviction rested entirely on circumstantial evidence
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.
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.
Whether the blood samples taken from the appellant were illegally obtained evidence
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.
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.
Whether the mandatory death sentence should stand in light of Muruatetu
No. Following Muruatetu, the mandatory death sentence is unconstitutional; the court set it aside and substituted 40 years' imprisonment.
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.
Legal principles established
#- 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
#- 1.Appeal against conviction dismissed
- 2.Death sentence set aside
- 3.Substituted with imprisonment for a term of 40 years from the date the initial sentence was passed on 23rd March 2016
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.