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Court of AppealPartially AllowedCriminal Appeal No 197 of 2017· [2023] KECA 1103 (KLR)

Abok v Republic (Criminal Appeal 197 of 2017) [2023] KECA 1103 (KLR)

Court of Appeal of Kenya
22 September 2023
2,643 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 based on dying declarations, but sent the death sentence back to the High Court for fresh sentencing under Muruatetu.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Karanja, Tuiyott and Ngugi, JJ.A) dismissed the appellant's appeal against his conviction for the murder of Kenneth Jared Odhiambo Abuto, committed on 27th March 2014 at Kochieng village, Kisumu, but remitted the matter to the High Court for resentencing. The appellant had been convicted by Majanja, J on the strength of direct testimony by PW2, who saw him fighting with the deceased who was locked in a kitchen, and of multiple dying declarations in which the deceased, shortly before dying of head injuries, said that 'Musa' or 'Akina Musa' had assaulted or killed him. On appeal, counsel argued that the dying declaration did not identify a specific person, that the evidence was merely circumstantial, and that the trial court shifted the burden of proof, particularly in its treatment of the alibi first raised in the defence case. The Court, restating the Okeno jurisdiction to re-evaluate evidence on a first appeal, held that PW2's evidence supplied the link between the 'Musa' named by the deceased and the appellant, so the declarations were corroborated; that even if a mob was responsible, section 21 of the Penal Code (common intention) attached liability to the appellant as a member of that mob; and that a late-raised alibi is simply tested against the whole prosecution case, so no burden was shifted. On sentence, because it was imposed before Muruatetu and no mitigation had been offered at trial, the Court could not itself review it and remitted the matter to the High Court at Kisumu for expedited resentencing, with a mention before the Deputy Registrar within 14 days.

Key legal issues

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01

Sufficiency and corroboration of dying declarations under section 33(a) of the Evidence Act

Holding

The dying declarations to PW1, PW3, PW5 and PW6, though the reference was to 'Musa' or 'Akina Musa', were sufficiently linked to the appellant by PW2's evidence placing him in the kitchen with the deceased; corroboration was in any event present

Reasoning

The Court held there was unshaken evidence that the deceased, shortly before death, stated that Musa had assaulted or killed him. Although PW6's evidence referred to 'Akina Musa' (a group), PW2's testimony that the appellant was locked in the kitchen with the deceased just before he was found injured supplied the link, so the declaration was corroborated even if corroboration were required.

p. 5
02

Doctrine of common intention (section 21, Penal Code)

Holding

Even if a mob assaulted the deceased, the appellant, being part of that mob, could not escape liability under the doctrine of common intention; the charge particulars in any event alleged the appellant murdered with others not before the court

Reasoning

The Court invoked section 21 of the Penal Code, under which persons who prosecute a common unlawful purpose are each deemed to have committed an offence that was a probable consequence. The information itself particularised that the appellant, with others not before the court, murdered the deceased, so group liability did not defeat the conviction.

p. 5
03

Treatment of an alibi raised for the first time in the defence case and the alleged shifting of the burden of proof

Holding

An alibi first raised in the defence case is tested against the entire prosecution case; the trial court did so and did not shift the burden of proof to the appellant

Reasoning

Because the alibi was raised only during the defence case, the prosecution had no opportunity to confront or investigate it; the proper approach, per Karanja v Republic, is to test the alibi against the whole prosecution case. The trial court's impugned passage merely examined the veracity of the dying declaration and evaluated the alibi, so the complaint of a reversed burden was without merit.

p. 5
04

Sentence in light of Muruatetu

Holding

As the sentence predates Muruatetu, the appellant should benefit from that jurisprudence, but the Court could not itself review sentence because no mitigation was offered at trial, and remitted the matter for resentencing

Reasoning

The Court acknowledged the parties' common position that the appellant should benefit from the Muruatetu jurisprudence. However, the absence of any mitigation at trial - perhaps because the death sentence was then routinely imposed - meant the appellate court lacked a basis to substitute its own sentence, necessitating remittal to the High Court for expedited resentencing.

p. 5

Legal principles established

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  • On a first appeal, the appellate court must re-evaluate the evidence afresh and draw its own conclusions, while making allowance for the trial court's advantage of seeing and hearing the witnesses
  • Where an alibi is raised for the first time during the defence case, the court simply tests it against the entire prosecution case rather than expecting the prosecution to have investigated it
  • A dying declaration need not name a single specific person where other evidence links the person referred to to the offence; and a participant in a mob acting with common intent cannot escape liability under section 21 of the Penal Code

Court orders

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  1. 1.Appeal against conviction dismissed
  2. 2.Matter remitted to the High Court at Kisumu for an expedited hearing on resentencing
  3. 3.Matter to be mentioned before the Deputy Registrar, High Court, within 14 days for directions on resentencing

Authorities

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Legislation

  • Penal Codesection 203
  • Penal Codesection 204
  • Penal Codesection 21
  • Evidence Actsection 33(a)

Cases cited (6)

  • Okeno V. Republic
    [1972] EA 32
  • Pandya v. R.
    [1957] E.A. 336
  • Shantilal M. Ruwala v. R.
    [1957] E.A. 570
  • Peters v. Sunday Post
    [1958] E.A. 424
  • Karanja V Republic
    [1983] KLR 501
  • Francis Karioko Muruatetu & another v Republic
    [2017] eKLR
On appeal from
High Court of Kenya
Not stated in judgment
Jurisdiction invoked
First appeal to the Court of Appeal under the Criminal Procedure Code (provision not specified in judgment)

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, "Abok v Republic (Criminal Appeal 197 of 2017) [2023] KECA 1103 (KLR)", Case Analysis (2023). Criminal Appeal No 197 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1103/eng@2023-09-22

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