GMM v Republic (Criminal Appeal 6 of 2021) [2023] KECA 218 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a second appeal against an attempted murder conviction, confirming a 30-year prison sentence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant's right under Article 50(2)(e) of the Constitution to a trial concluded within a reasonable time was violated by the delay occasioned by PW1's hospitalisation
- 2.Whether malice aforethought, the essential ingredient of attempted murder, was proved
- 3.Whether the P3 form was improperly admitted in contravention of section 77 of the Evidence Act having regard to the absence of its maker
- 4.Whether the courts below failed to consider the appellant's defence
- 5.Whether the sentence of 30 years' imprisonment was harsh and excessive
Key legal issues
#Whether delay in commencement of trial violated Article 50(2)(e)
No; the adjournments were occasioned by PW1's admission in hospital for over a year after the attack, beyond prosecution control, and the trial remained fair
The court found the delay was attributable to PW1's prolonged hospitalisation following the very injuries inflicted by the appellant, a matter outside the prosecution's control. It further noted the remedy for an established breach lies in compensation, not acquittal. On the facts, the appellant's fair-trial rights were not eroded such that the trial was rendered totally unfair.
Whether malice aforethought for attempted murder was proved
Yes; the appellant armed himself with a machete, struck PW1 alone in the kitchen severally on the head, and expressly blamed her for infecting him with HIV, showing an intention to kill
Applying R v. Whybrow and Cheruiyot, intent is the principal ingredient of attempted murder. The court found the appellant meticulously planned the attack: he armed himself, struck when PW1 was alone and most vulnerable, targeted the head, and made an incriminating statement connecting the attack to a grievance. The prosecution had to prove acts immediately, not remotely, connected with the murder, which was satisfied.
Admissibility of the P3 form without its maker
Properly admitted; the appellant did not object, cross-examined PW5 extensively, and section 77 of the Evidence Act caters for such production
PW5 testified on behalf of her colleague (the maker) who was conducting an operation. The appellant raised no objection to PW5 producing the document and cross-examined her at length. The court held no prejudice was occasioned and that section 77 of the Evidence Act provides for this scenario.
Whether the appellant's unsworn defence was considered
Yes; both courts below factored the defence into the verdict and found it did not shake the prosecution's case
The court reviewed the record and found that from the trial court through to the first appellate court the appellant's defence was considered before the verdict. The High Court found the defence did not displace the prosecution case, and that the appellant had a motive - blaming PW1 for infecting him with HIV. The grudge allegation was an afterthought raised for the first time on appeal.
Whether the 30-year sentence was harsh and excessive
No; section 220(b) prescribes up to life imprisonment, and the grievous injuries justified 30 years
The court noted the maximum penalty under section 220(b) is life imprisonment. Given the aggravated nature of the injuries - a machete penetrating PW1's hand and cuts to the head requiring over a year of hospitalisation including at Kenyatta National Hospital - the 30-year term could not be described as harsh. The court declined to interfere with the sentence.
Legal principles established
#- On a second appeal the Court of Appeal concerns itself only with matters of law and defers to concurrent findings of fact by the two courts below, interfering only where there was no evidence at all or no reasonable tribunal could have reached the finding
- In a charge of attempted murder, the intent to kill is the principal ingredient and must be strictly proved; nothing less than an intention to kill will do
- Acts alleged to constitute attempted murder must be sufficiently proximate to murder - more than mere preparation
- A breach of the right to a trial within a reasonable time, where the breach cannot be undone, is remedied by compensation rather than by allowing an appeal against conviction
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The conviction and 30-year sentence imposed by the trial court and upheld by the High Court stand
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Machakos
- Criminal Appeal No. 94 of 2015
- Jurisdiction invoked
- Second appeal to the Court of Appeal on matters of law only (Article 164, Constitution of Kenya; first appeal from High Court appellate decision)
Relief refused
#Interference with conviction on the ground of delay of trial
Delay was caused by PW1's hospitalisation, beyond prosecution's control, and did not render the trial unfair
Interference with conviction on the ingredient of intent
Evidence of the machete attack on the head established intention to kill
Exclusion of the P3 form
Appellant did not object to production by PW5, cross-examined at length, and no prejudice was occasioned
Reduction of the 30-year sentence
Sentence not harsh given the grievous, aggravated injuries sustained by PW1
Costs
No costs order recorded in the judgment; criminal appeal dismissed.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The appeal is devoid of merit, and, is accordingly dismissed in its entirety.
we are under legal duty to pay proper homage to the concurrent findings of facts by the two courts below and we would only be entitled to interfere if and only if, we were satisfied that there was no evidence at all upon which such findings were based
But if the charge is one of attempted murder, the intent becomes the principal ingredient of the crime.
Nothing less than an intention to kill will do.
an act is sufficiently proximate when the accused has done the last act which it is necessary for him to do in order to commit the specific offence attempted
the breach complained of by the appellant at this stage cannot be undone, and accordingly the appellant can only be compensated for that breach by way of damages.
no prejudice was occasioned to the appellant by PW5 producing the P3 form and not the maker.
It cannot be said that 30 years' imprisonment imposed on the appellant was harsh, granted the aggravated nature of the injuries that PW1 sustained at the hands of the appellant.
Issues in the judgment
#Judgment inconsistently identifies the complainant: particulars allege the appellant attempted to kill 'NM', but the evidence consistently refers to PW1 'JN'; paragraph 3 also refers to PW1 and PW2 both going to the victim's rescue where the earlier text describes PW2 and PW3 (PW3) as rescuers, and paragraph 21 says 'PW1 and PW2' did so. There is also an internal inconsistency in dates of the attack: November 1, 2009 in the particulars versus November 11, 2009 in PW1's testimony.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "GMM v Republic (Criminal Appeal 6 of 2021) [2023] KECA 218 (KLR)", Case Analysis (2023). Criminal Appeal (second appeal, from High Court Criminal Appeal No. 94 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/218/eng@2023-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.