William Wekhulo Toroni & another v Republic [2020] KECA 921 (KLR)
The bottom line
#Kenya's Court of Appeal upheld two murder convictions but replaced the death sentences with 30 years' imprisonment each, applying the Muruatetu decision on mandatory death penalties.
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 prosecution case against the appellants was proved beyond reasonable doubt
- 2.Whether the Court should exercise its discretion and interfere with the sentence of death imposed on the appellants
Key legal issues
#Whether the prosecution proved the offence of murder beyond reasonable doubt
Yes. The fact of death was undisputed; PW4's eyewitness evidence of the attack was corroborated by PW5 and the recovered panga; recognition rather than stranger identification dispensed with any need for an identification parade; and malice aforethought was established from the nature of the weapon, the multiple head wounds, and the parts of the body targeted.
The Court accepted the trial judge's assessment of witness credibility, found PW4 able to recognise the appellants as relatives and PW5 as a neighbour, and held the incident occurring in broad daylight made recognition easy. Applying the Tubere factors - nature of weapon, manner of use, part of body targeted, and injuries inflicted - the seven panga cuts to the head and chopped fingers established an intention to cause death or grievous harm.
Whether the voire dire examination of the child witness PW4 was inadequate
No. The appellants did not identify what was not thoroughly done, and the Court was satisfied the trial court properly conducted the voire dire.
Section 19(1) of the Oaths and Statutory Declarations Act permits reception of a child's unsworn evidence where the court is satisfied the child possesses sufficient intelligence and understands the duty to speak the truth. On scrutiny of the record the Court found the requirement met and rejected the complaint as unspecified.
Whether contradictions in witness testimony vitiated the conviction
No. The alleged inconsistencies were variations from earlier police statements and were not material or prejudicial.
The Court held that discrepancies inevitably arise because witnesses perceive events differently, and the duty of the trial and first appellate courts is to determine whether they are fundamental and prejudicial or inconsequential. Following Joseph Maina Mwangi, the test is whether the discrepancies are so fundamental as to cause prejudice; the trial court found none and the Court agreed.
Whether the mandatory death sentence should stand in light of Muruatetu
The death sentence was set aside and substituted with 30 years imprisonment each, the Court taking into account the appellants' relationship to the deceased and their ten years in custody.
Relying on Francis Karioko Muruatetu, the Court noted that Section 204 of the Penal Code is invalid only to the extent that it prescribes a mandatory death sentence for murder, and that the death penalty remains available as a discretionary maximum. Tempering justice with mercy, it found imprisonment a fitting sentence given the familial relationship and time already served.
Legal principles established
#- A first appellate court must re-appraise the evidence and draw its own inferences of fact on the guilt or otherwise of the appellants
- The three essential ingredients of murder - death of the deceased, the accused caused the unlawful act causing death, and malice aforethought - must all be proved beyond reasonable doubt
- Recognition of an assailant, as opposed to identification of a stranger, does not require an identification parade
- In assessing discrepancies in witness testimony, the test is whether they are so fundamental as to cause prejudice or are inconsequential to the conviction and sentence
- The prosecution is not required to prove motive to sustain a conviction for murder, though evidence of motive is admissible where relevant
Court orders
#- 1.Appeal against conviction dismissed
- 2.Appeal against sentence allowed
- 3.Sentence of death set aside
- 4.Appellants sentenced to 30 years imprisonment each with effect from 31st July, 2015
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kakamega
- HCCRC No. 39 of 2009 as consolidated with HCCRC No. 43 of 2009
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Rules, rule 29(1); the trial court's decision was of 23rd June 2015, predating Muruatetu (2017), and the appeal was heard under the Court's Rules
Relief refused
#Quashing of the convictions for murder
The Court found all ingredients of murder proved beyond reasonable doubt, including malice aforethought
Costs
No costs order recorded in the judgment
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.
It is our mandate as set out in rule 29(1) of this Court’s Rules to re-appraise the evidence and draw our own inferences of fact on the guilt or otherwise of the appellants.
This, however, was a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.
An appellate court in considering those discrepancies must be guided by the working of Section 382 of the Criminal Procedure Code, viz whether such discrepancies are so fundamental as to cause prejudice to the Appellant or they are inconsequential to the conviction and sentence.
The nature of the weapon used; the manner in which it was used; the part of the body targeted; the nature of the injuries inflicted either a single stab/wound or multiple injuries; the conduct of the accused before, during and after the incident.
Consequently, we find no reason to interfere with the trial court’s finding on conviction. The appeal against conviction is accordingly dismissed. However, the appeal against sentence is allowed. The sentence of death is set aside and in substitution thereof the appellants are sentenced to 30 years imprisonment each with effect from 31st July, 2015 when they were sentenced.
Issues in the judgment
#Internal inconsistency in the date of the offence: the opening particulars and witness evidence variously state 1st September 2008 and 1st September 2009
The judgment refers to a co-accused 'Elizabeth' in relation to common intention although the third accused is elsewhere named Florence
Odek, J.A. is listed on the coram but died before signing the judgment, so the panel composition and the delivery of the judgment under rule 32(2) may raise questions about the effective bench
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "William Wekhulo Toroni & another v Republic [2020] KECA 921 (KLR)", Case Analysis (2020). Criminal Appeal No. 31 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/921/eng@2020-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.