Pascal William Makokha v Republic
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Sufficiency of evidence and reliability of interested witnesses
Direct eyewitness evidence, including two independent witnesses, was sufficient to sustain the conviction; the evidence was neither circumstantial nor hearsay.
The killings occurred in broad daylight in a home setting, so family-member witnesses were inevitable. Two independent witnesses, Emily Lumumba (PW4) and Lucy Adhiambo (PW5), saw the appellant with the pistol and, in Emily's case, saw him shoot the deceased, untainted by the family feud.
Provocation
The defence of provocation was unavailable; the alleged death threats, the trench and the failure to assist did not amount to provocation in law.
Sections 207 and 208 of the Penal Code require a wrongful act or insult likely to deprive an ordinary person of self-control, done in the heat of passion before there is time to cool. The appellant's claims of prior threats and grievances did not meet this threshold, as the trial court found.
Malice aforethought
Malice aforethought was established: the appellant went armed with a pistol, his men attacked with clubs and pangas, and the deceased were shot in the chest.
Applying section 206 of the Penal Code and Tubere, the court found an intention to cause death or grievous harm, or indifference to it, from the weapon used, the part of the body targeted and the fatal injuries. There was no evidence the deceased were armed or attacked the appellant.
Failure to consider mitigation before sentencing
The record bore out the appellant's contention that the trial court did not consider his mitigation; the sentence was remitted for re-sentencing.
While the conviction stood, the sentencing process was flawed because no opportunity to mitigate was given. The court remitted the matter to the High Court for re-sentencing in line with the Muruatetu guidelines, with mention within fourteen days.
Legal principles established
#- On a first appeal, the Court of Appeal must re-evaluate the evidence and reach its own conclusion while making due allowance for not having seen or heard the witnesses.
- A land dispute, however emotive, does not justify or excuse murder.
- Malice aforethought may be inferred from the weapon used, the manner of its use, the part of the body targeted, the injuries inflicted and the conduct of the accused.
Court orders
#- 1.The appeal against conviction is dismissed
- 2.The matter is remitted to the High Court to consider the appellant's mitigation and sentence him upon consideration of the guidelines set out in Francis Karioko Muruatetu & Another v Republic
- 3.The matter be placed for mention before the High Court in Busia within fourteen (14) days of the date of the judgment for purposes of fixing a date for an expeditious re-sentencing hearing
- On appeal from
- High Court of Kenya at Busia
- High Court Criminal Case No. 20 of 2015
- Jurisdiction invoked
- First appeal to the Court of Appeal under section 379 of the Criminal Procedure Code
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pascal William Makokha v Republic", Case Analysis (2022). Criminal Appeal 31 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/506/eng@2022-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.