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Court of AppealDismissedCriminal Appeal 101 of 2019· [2022] KECA 647 (KLR)

Kago v Republic

Court of Appeal of Kenya
28 April 2022
DMD. K. MusingaFSF. Sichale
2,215 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld a murder conviction and death sentence, confirming eyewitness identification and that fleeing a crime scene must be explained.

What this practically means

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Executive summary

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The appellant, Edward Waithiru Kago, was convicted of the murder of his paternal uncle, Peter Kamau Waithiru, by the High Court at Nairobi (Lesiit, J.) on 22 March 2017 and sentenced to death. He appealed to the Court of Appeal, contending that the identification evidence was insufficient, that the prosecution and circumstantial evidence were inconclusive, and alternatively seeking variation of the death sentence relying on the Supreme Court's decision in Muruatetu. The Court of Appeal, as a first appellate court, re-evaluated the evidence in line with Okeno v Republic. It found that PW1, an eyewitness walking with the deceased, saw the appellant emerge from a banana plantation and behead him in sufficient daylight, and that her evidence was corroborated by PW2, who saw the appellant fleeing at top speed. The Court held that under section 111(1) of the Evidence Act the appellant bore a statutory burden to explain why he was running from the scene, which he failed to discharge. Although the appellant made incriminating utterances at the police station, the Court confirmed the conviction rested on direct and circumstantial evidence, not the alleged confession. On sentence, the Court accepted that Muruatetu did not abolish the death sentence but removed its mandatory character; given the appellant's lack of remorse and the brutality of the beheading, the trial judge's discretion was properly exercised. The appeal was dismissed in its entirety, affirming both conviction and sentence. The judgment was rendered under rule 32(2) of the Court's Rules, Lady Justice Koome having ceased to hold office as Judge of Appeal upon her appointment as Chief Justice.

Key legal issues

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01

Sufficiency of identification evidence

Holding

Identification by PW1, an eyewitness, in sufficient daylight and corroborated by PW2 who saw the appellant fleeing, was sufficient.

Reasoning

The offence occurred around 6 p.m. in sufficient daylight. PW1 walked with the deceased and saw the appellant emerge from a banana plantation and behead him. PW1 is a close relative of both parties and denied any grudge. PW2, a first cousin who held the appellant by the collar, corroborated the identification. The Court found no reason to doubt this evidence.

02

Statutory burden on the accused to explain flight from the scene

Holding

Under section 111(1) of the Evidence Act, an accused seen running from a murder scene shortly after the offence must explain himself; failure to do so supports conviction.

Reasoning

The Court reproduced section 111(1) of the Evidence Act, which places the burden of proving facts especially within the accused's knowledge upon him, while preserving acquittal where a reasonable doubt arises. The appellant denied being at the scene, but evidence placed him fleeing at top speed, a fact especially within his knowledge that he did not satisfactorily explain.

p. 3
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Sentence in light of Muruatetu

Holding

The death sentence remains available for murder; on the facts, the trial judge's exercise of discretion in imposing it was proper and would not be disturbed.

Reasoning

Counsel correctly submitted that Muruatetu did not outlaw the death sentence but removed its mandatory nature. The appellant declined to mitigate, showed no remorse before either court, and beheaded his paternal uncle without apparent reason. The Court found the trial judge's observations correct and declined to vary the sentence.

p. 4

Legal principles established

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  • On a first appeal, the Court of Appeal must reconsider the evidence adduced before the trial court, evaluate it itself and draw its own conclusions.
  • An accused seen running away from the scene of murder shortly after the offence bears a statutory burden under section 111(1) of the Evidence Act to explain his conduct.
  • Muruatetu did not outlaw the death sentence for murder; it only held that death is not the mandatory sole sentence.

Court orders

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  1. 1.Appeal dismissed in its entirety
  2. 2.Conviction and death sentence as by law prescribed upheld

Authorities

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Legislation

  • Penal Codesection 203 as read with section 204
  • Evidence Actsection 111(1)
  • Evidence Actsection 119
  • Court of Appeal Rulesrule 32(2)

Cases cited (2)

  • Okeno v Republic
    [1972] EA 32

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

  • Francis Karioko Muruatetu & 2 Others v Republic
    [2014] eKLR

    Death sentence not outlawed; it is not the only sentence for murder.

On appeal from
High Court of Kenya at Nairobi
HC.CR. Case No. 21 of 2014
Jurisdiction invoked
First appeal to the Court of Appeal against conviction and sentence for murder under the Penal Code, rendered under rule 32(2) of the Court of Appeal Rules

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, "Kago v Republic", Case Analysis (2022). Criminal Appeal 101 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/647/eng@2022-04-28

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