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Court of AppealPartially AllowedCriminal Appeal 95 of 2016· [2022] KECA 874 (KLR)

Macharia Kihara v Republic

Court of Appeal
22 July 2022
WKW. KaranjaJMJ. MohammedFTF. Tuiyott
4,258 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal upheld a murder conviction but struck down the DNA evidence taken from the accused without legal consent, sending him for re-sentencing.

What this practically means

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Executive summary

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The Court of Appeal at Nyeri (W. Karanja, J. Mohammed and F. Tuiyott, JJA) heard the appellant's first appeal against conviction for the murder of his father and the mandatory death sentence imposed by the High Court (Ngaah, J.). The court held that section 200(3) of the Criminal Procedure Code was adequately complied with: Wakiaga, J, who heard no witnesses, informed the appellant of his rights and the appellant elected to proceed, so Ngaah, J could properly complete the trial. On the forensic evidence, the court accepted that the absence of an inventory for the recovered fork jembe and blood-stained clothing was a weakness, but held that an inventory is not the only proof of recovery; PW10's unshaken testimony and the sketch plan sufficed. Critically, the court held that the blood sample taken from the appellant by a police constable without a section 122A order or recorded consent rendered the resulting DNA analysis inadmissible under section 122D of the Penal Code. However, the sampling provisions do not extend to blood taken from the deceased's body at post-mortem, and the match between the deceased's blood and stains on the jembe and the appellant's clothes, unexplained, amounted to strong and overwhelming circumstantial evidence. The conviction was upheld. On sentence, the matter was remitted to the High Court for re-sentencing, with a mention within 14 days for directions. The appeal therefore partially succeeded: conviction affirmed, sentence set aside for re-sentencing.

Key legal issues

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01

Compliance with section 200(3) of the Criminal Procedure Code on change of trial judge

Holding

Compliance was sufficient; the appellant, through counsel, elected to proceed after being informed of his rights, and the succeeding judge completed the hearing without prejudice.

Reasoning

The entire prosecution case was heard by Sergon, J; Wakiaga, J explained the section 200 rights and the appellant elected to continue. Wakiaga, J heard no witnesses, and counsel confirmed on record they would proceed with the defence hearing. The purpose of section 200 - protecting the accused from prejudice by re-summoning and re-hearing witnesses - was met.

p. 5
02

Effect of absence of inventory for recovered exhibits

Holding

Want of an inventory did not vitiate the recovery; PW10's unshaken testimony, the sketch plan and absence of objection made up for the weakness.

Reasoning

Standing Order 17 requires an officer to account for how an exhibit was discovered, possessed and safeguarded; an inventory is a helpful tool but not the sole proof of recovery. PW10's cross-examination evidence on the jembe's recovery was unshaken and corroborated by the sketch plan; no objection was raised to production of the clothing.

p. 5
03

Admissibility of DNA evidence obtained without compliance with sections 122A-122D Penal Code

Holding

The blood sample taken from the appellant by a police constable without a section 122A order or recorded consent was inadmissible, but the sample from the deceased's body taken during post-mortem was outside those provisions and admissible.

Reasoning

DNA sampling intrudes on the constitutional right to privacy under Article 31; the statutory scheme balances that right against the public interest in investigating serious crime. Non-compliant results are expressly barred by section 122D. However, the provisions govern sampling of suspects; blood removed by the doctor at post-mortem and collected by PW10, evidenced by the Exhibit Memo, was properly admitted.

p. 7
04

Sufficiency of circumstantial and forensic evidence for conviction

Holding

Even excluding the appellant's own DNA sample, the match between the deceased's blood and blood on the jembe and the appellant's clothes, unexplained, sustained the conviction.

Reasoning

The Government Analyst's analysis showed the deceased's blood matched stains on the fork jembe found in the appellant's house and on the clothes he wore at arrest. The appellant offered no explanation for this. The circumstantial evidence formed a complete picture pointing to guilt, justifying upholding the conviction.

p. 7
05

Constitutionality of the mandatory death sentence post-Muruatetu

Holding

The State did not fault the Muruatetu argument; as the sentence was imposed pre-Muruatetu without mitigation, the matter was remitted for re-sentencing.

Reasoning

The death sentence was imposed in the pre-Muruatetu era, which explains the absence of mitigation. Without a critical factor to review the sentence itself, the appropriate order was remittal to the High Court for re-sentencing, with a mention within 14 days for directions.

p. 8

Legal principles established

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  • An inventory is strong evidence of recovery of an exhibit but is not the only manner in which recovery can be proved; other credible evidence of discovery, recovery and safekeeping may make up for want of an inventory.
  • Results of a DNA test or analysis carried out on a sample obtained without adherence to sections 122A-122D of the Penal Code are inadmissible at the prosecution's instance.
  • The DNA sampling provisions of the Penal Code do not extend to blood samples taken from the body of a deceased person during post-mortem.
  • Compliance with section 200 of the Criminal Procedure Code by a judge who heard no witnesses suffices for a succeeding judge to take over and complete the hearing.

Court orders

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  1. 1.Conviction upheld
  2. 2.Matter remitted to the High Court for re-sentencing
  3. 3.Matter to be mentioned within 14 days at the High Court in Nyeri for directions on the re-sentencing hearing

Authorities

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Legislation

  • Penal Codesection 203 as read with section 204
  • Penal Codesections 122A, 122B, 122C, 122D
  • Criminal Procedure Codesection 200 (including subsection (3))
  • Police Act (repealed)section 5
  • Force Standing Orders (2001)Standing Order 17
  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 25(c)
  • Constitution of KenyaArticle 31

Cases cited (4)

  • Abdi Adan Mohammed vs Republic
    [2017] eKLR

    Section 200(3) Criminal Procedure Code compliance and fair trial rights on change of judge

  • Francis Karioko Muruatetu & Another vs Republic
    [2017] eKLR

    Mandatory death sentence abridges the right to a fair trial under Article 25(c)

  • Stephen Kimani Robe & 2 Others vs Republic
    [2013] eKLR

    Failure to produce an inventory does not vitiate the trial; witness confirmation of exhibits overrides its absence

  • Okeno vs. Republic
    [1972] EA 32

    Duty of a first appellate court to re-evaluate evidence afresh with allowance for not seeing or hearing witnesses

On appeal from
High Court of Kenya at Nyeri
HC.CR.C. No. 26 of 2008
Jurisdiction invoked
First appellate jurisdiction over a High Court murder conviction (Criminal Procedure Code; Article 163 appellate structure)

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, "Macharia Kihara v Republic", Case Analysis (2022). Criminal Appeal 95 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/874/eng@2022-07-22

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