Moingo & another v Republic (Criminal Appeal 90 of 2018) [2022] KECA 6 (KLR)

The court held that the 12 prosecution witnesses testified to what they saw and did, and merely narrated reports of witnesses who themselves testified, which is not hearsay. On contradictions, applying Erick Onyango Odeng' v Republic, only grave unexplained contradictions warrant rejection of evidence; the discrepancies here (e.g. the precise date of disappearance) were minor. The Last Seen doctrine also operated against the appellants, who were the last to see the deceased and gave no explanation for his disappearance.

Relying on section 143 of the Evidence Act and Keter v Republic, the court held that no particular number of witnesses is required to prove any fact. The appellants could not identify who the alleged crucial witnesses were or who ought to have called them. The prosecution called the witnesses it considered sufficient to establish the charge, and the appellants themselves testified and called one witness, so the right under Article 50(2)(k) to adduce and challenge evidence was not infringed.

Both appellants testified and the 2nd appellant called a pathologist whose opinion was recorded and considered. The defence retracted the confessions and denied knowledge, but the evidence, including the confessions and exhumation findings of blunt trauma head injury, pointed inescapably to the appellants' culpability. The judge's finding that the defences did not displace the prosecution case disclosed no error warranting appellate interference.

Although counsel requested quashing of the sentence or substitution of manslaughter in submissions, no ground of appeal addressed sentence. The court noted the trial judge had regard to Muruatetu's declaration that the mandatory death sentence under section 204 deprives courts of judicial discretion, and properly imposed life imprisonment. Finding no basis to interfere, the court left both conviction and sentence undisturbed.