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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCriminal Appeal (not stated in judgment)· [2021] KECA 302 (KLR)

Charo Kenga Shikari v Republic

Court of Appeal of Kenya
17 December 2021
4,523 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~18 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a first appeal to the Court of Appeal at Mombasa against conviction and sentence for the murder of Haluwa Shikari on 2nd June 2011 in Kwale County. The trial before the High Court began before Nzioka J, who heard four prosecution witnesses, and concluded before Muya J, who heard one further witness and the defence, convicting the Appellant on 9th December 2015 and imposing the then-mandatory death sentence. On appeal, the Respondent conceded the conviction as unsafe on the ground that it rested on the evidence of PW3, a hostile witness, and on alleged non-compliance with section 200(3) of the Criminal Procedure Code. The Court found that the succeeding Judge had personally explained section 200 to the Appellant, who was represented and present in court, and that no prejudice was established; the provision is also to be applied sparingly. On the evidence, the Court accepted that the evidence of a hostile witness is untrustworthy and of negligible weight, and that the trial court erred in relying solely on it. However, the consistent testimony of the two police officers and the recovery of the panga independently corroborated the Appellant's identification, satisfying the Sawe threshold for circumstantial evidence. The alibi was unsupported by cogent evidence, and malice aforethought was established by the severing of the deceased's trachea. The Court upheld the conviction but, applying Muruatetu, set aside the mandatory death sentence and substituted twenty-five years imprisonment from the date of conviction. The appeal therefore partially succeeded: conviction affirmed, sentence varied.

Key legal issues

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01

Compliance with section 200 of the Criminal Procedure Code on change of trial Judge

Holding

There was compliance; the succeeding Judge explained section 200 directly and the accused was not prejudiced.

Reasoning

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.

p. 6
02

Reliability of the evidence of a hostile witness

Holding

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.

Reasoning

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.

p. 7
03

Circumstantial evidence threshold

Holding

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.

Reasoning

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.

p. 6
04

Alibi

Holding

The alibi failed for lack of cogent supporting evidence and because no witness was called to confirm it.

Reasoning

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.

p. 7
05

Malice aforethought

Holding

Malice aforethought was established by the nature of the injuries, the deceased's windpipe being severed.

Reasoning

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.

p. 8
06

Sentence

Holding

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.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.Upheld the conviction of the Appellant for the murder of Haluwa Shikari contrary to section 203 of the Penal Code
  2. 2.Set aside the death sentence imposed by the trial Court
  3. 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

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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, "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.