Abok v Republic (Criminal Appeal 197 of 2017) [2023] KECA 1103 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Sufficiency and corroboration of dying declarations under section 33(a) of the Evidence Act
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
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.
Doctrine of common intention (section 21, Penal Code)
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
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.
Treatment of an alibi raised for the first time in the defence case and the alleged shifting of the burden of proof
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
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.
Sentence in light of Muruatetu
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
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.
Legal principles established
#- 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
#- 1.Appeal against conviction dismissed
- 2.Matter remitted to the High Court at Kisumu for an expedited hearing on resentencing
- 3.Matter to be mentioned before the Deputy Registrar, High Court, within 14 days for directions on resentencing
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.