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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCriminal Appeal 182 of 2016· [2022] KECA 626 (KLR)

Dan Slaus Murunga v Republic

Court of Appeal of Kenya
8 July 2022
2,372 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld a murder conviction but replaced the death sentence with 25 years' imprisonment, confirming judges can now choose sentences after Muruatetu.

What this practically means

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Executive summary

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The appellant, Dan Slaus Murunga, was convicted of murder contrary to section 203 as read with section 204 of the Penal Code and sentenced to death by the High Court at Kakamega (Sitati J) for killing Charles Kubai on 22nd July 2012. On appeal to the Court of Appeal at Kisumu (Kiage, Ngugi and Tuiyott, JJA), two issues arose: whether the evidence supported the conviction, particularly identification of the appellant, and whether the death sentence was lawful. The court, exercising its first-appeal duty per Okeno v R, re-evaluated the evidence and found that PW1 and PW5, who knew the appellant, saw him assault the deceased in broad daylight - first with fists, then with a panga concealed in his clothes - and that he was arrested while fleeing. Malice aforethought was established under section 206 of the Penal Code by the premeditated panga attack. The appeal against conviction was dismissed. On sentence, applying Muruatetu, the court held that the mandatory death sentence could no longer stand; the trial court had erred in treating the death penalty as the only option. Considering the appellant's mitigation as a remorseful first offender and young father, but also the unprovoked and premeditated nature of the attack, the court set aside the death sentence and substituted 25 years imprisonment running from the date of the trial sentence, declining to remit for re-sentencing as sufficient material was on record.

Key legal issues

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01

Sufficiency of evidence and identification of the appellant as the assailant

Holding

Identification was proper; two eyewitnesses who knew the appellant saw him assault the deceased in broad daylight, and the conviction cannot be faulted.

Reasoning

PW1 and PW5 both knew the appellant and the deceased and saw the attack at about 3.00 p.m., so identification posed no difficulty. PW1 gave a detailed and credible account. The appellant's defence that he was elsewhere and was injured while fleeing was rejected against this eyewitness evidence.

p. 3
02

Malice aforethought

Holding

Malice aforethought was established: the appellant returned with a concealed panga and cut the deceased, demonstrating intent to cause death or grievous harm under section 206 of the Penal Code.

Reasoning

The court applied section 206 of the Penal Code. The appellant first assaulted the deceased with fists in a quarrel over cows, then left, returned with a panga concealed in his clothes and cut the deceased. That premeditated recourse to a deadly weapon showed intent to cause death or grievous harm.

p. 4
03

Constitutionality of the mandatory death sentence and re-sentencing

Holding

The death sentence, imposed as mandatory, could not stand after Muruatetu; the court exercised its own discretion and substituted 25 years imprisonment.

Reasoning

The trial court had held it had no discretion in sentencing. Following Muruatetu, courts now have sentencing discretion subject to the Supreme Court guidelines. Considering the appellant's mitigation (first offender, remorse, young father of two) but also the unprovoked and premeditated panga attack, the court found a custodial sentence appropriate and re-sentenced itself rather than remitting.

p. 4

Legal principles established

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  • On a first appeal, the Court of Appeal must re-evaluate the evidence and reach its own conclusion while bearing in mind it did not see or hear the witnesses.
  • Following Muruatetu, courts have discretion in sentencing for murder, subject to the Supreme Court guidelines, and a mandatory death sentence can no longer be imposed.

Court orders

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  1. 1.Appeal against conviction dismissed
  2. 2.Sentence of death set aside and substituted with a sentence of 25 years imprisonment to run from the date of sentence by the trial court

Authorities

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Legislation

  • Penal Codesection 203
  • Penal Codesection 204
  • Penal Codesection 206

Cases cited (2)

  • Francis Karioko Muruatetu vs Republic
    [2017] eKLR

    Declared the mandatory death sentence for murder unconstitutional; courts now have sentencing discretion subject to guidelines.

  • Okeno v R
    [1972] EA 32

    Duty of a first appellate court to re-evaluate the evidence and reach its own conclusion.

On appeal from
High Court of Kenya at Kakamega
Criminal Case No. 27 of 2012
Jurisdiction invoked
First appellate jurisdiction over a High Court murder conviction and sentence (Court of Appeal, criminal appeal)

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, "Dan Slaus Murunga v Republic", Case Analysis (2022). Criminal Appeal 182 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/626/eng@2022-07-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.