Charo Kenga Shikari v Republic
The bottom line
#Kenya's Court of Appeal upheld a murder conviction but replaced the mandatory death sentence with 25 years' imprisonment, applying the Muruatetu resentence principles.
What this practically means
#Executive summary
#Key legal issues
#Compliance with section 200 of the Criminal Procedure Code on change of trial Judge
There was compliance; the succeeding Judge explained section 200 directly and the accused was not prejudiced.
The record shows the Judge explained section 200 of the Criminal Procedure Code, counsel responded that the matter could proceed, and the Appellant was personally present and never objected. Counsel is deemed the accused's agent under Article 50(2), and the provision is to be applied sparingly even where resummoning is demanded.
Reliability of the evidence of a hostile witness
The hostile witness's evidence was of little value and weakened the chain of circumstantial circumstances, but was corroborated by the two police officers' testimony and recovery of the panga.
PW3 recanted his police statement and was declared hostile; such evidence is untrustworthy and of negligible weight. However, the two investigating officers consistently testified to the report they received, the scene, the panga, and the Appellant's arrest, corroborating the identification and the murder weapon.
Circumstantial evidence threshold
Circumstantial evidence may sustain a conviction only where the inculpatory facts are incompatible with innocence and exclude any other reasonable hypothesis; the threshold was met here.
Relying on Sawe v Republic, the court held that the uncontradicted evidence of the police witnesses and recovery of the panga independently corroborated the Appellant's identification, so the only reasonable inference was that he caused the death of the deceased.
Alibi
The alibi failed for lack of cogent supporting evidence and because no witness was called to confirm it.
The Appellant claimed to be burning charcoal at Kulalu forest throughout the night but called no witnesses; moreover, evidence showed he went into hiding after the offence, which was inconsistent with innocence.
Malice aforethought
Malice aforethought was established by the nature of the injuries, the deceased's windpipe being severed.
Under section 206 of the Penal Code, malice aforethought is established by an intention to cause death or grievous harm. The severing of the trachea evidenced such intention.
Sentence
Following Muruatetu, the mandatory death sentence could no longer stand; the court resentenced the Appellant to 25 years imprisonment considering his mitigation, first-offender status and time in custody.
Although the death sentence was mandatory at sentencing in 2015, Muruatetu deprived courts of the mandatory sentence, requiring individualized sentencing; the court exercised fresh discretion on mitigation and circumstances.
Legal principles established
#- The evidence of a witness declared hostile is untrustworthy, unreliable and of negligible weight, and cannot solely sustain a conviction without corroboration.
- Once a succeeding judge personally informs an accused of his rights under section 200(3) of the Criminal Procedure Code, an appellate court will not infer that counsel's response to proceed was made without instructions.
- An alibi must be raised at the earliest opportunity and supported by cogent evidence capable of raising a reasonable doubt.
Court orders
#- 1.Upheld the conviction of the Appellant for the murder of Haluwa Shikari contrary to section 203 of the Penal Code
- 2.Set aside the death sentence imposed by the trial Court
- 3.Substituted a sentence of twenty-five (25) years imprisonment from the date of conviction
- On appeal from
- High Court of Kenya
- null
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Constitution and the Court of Appeal Act (first appeal against conviction and sentence for murder)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charo Kenga Shikari v Republic", Case Analysis (2021). Criminal Appeal (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/302/eng@2021-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.