Watulo & another v Republic (Criminal Appeal 218 of 2020) [2023] KECA 1541 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed two police officers' murder appeal, confirming that excessive force can prove murderous intent even without a lethal weapon like a knife.
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 charge of murder was proved against the appellants
- 2.Whether the fatal injuries sustained by the deceased were caused by the appellants
- 3.Whether the appellants acted with malice aforethought
- 4.Whether the doctrine of common intention applied to the appellants' case
- 5.Whether the failure to call the investigating officer was fatal to the prosecution case
Key legal issues
#Whether malice aforethought was established
Yes. The appellants beat the deceased on the head with a gun butt until he lost consciousness, deploying excessive force; as trained police officers they knew death or grievous harm was likely.
The court applied Section 206 of the Penal Code and the Tubere criteria: weapon used, manner of use, part of body targeted, injuries inflicted, and conduct before, during and after. The 1st appellant struck the head with a gun butt while the 2nd pinned the deceased down; they continued after subduing him and delayed medical attention. The prior refusal of drinks bore on motive. Their knowledge as trained officers of the lethality of gun-butt blows to the head established malice aforethought.
Whether the appellants were the perpetrators of the fatal injuries
Yes. The corroborated eyewitness evidence of PW7 placed both appellants at the scene and identified the sites of assault as matching the post-mortem injuries; the defence of mob action was disbelieved as an afterthought.
PW7's account of the 1st appellant striking the head with a gun butt matched the pathologist's findings of blunt force trauma to the head. PW5, PW8 and PW9 corroborated the appellants' presence and the deceased's condition. No witness mentioned members of the public, undermining the claim that villagers beat the deceased. The court found it implausible that a lone, tipsy man overpowered two trained police officers.
Whether the doctrine of common intention applied
Yes. The appellants prosecuted a common unlawful purpose: one pinned the deceased down while the other assaulted him, and both failed to secure him medical attention.
Section 21 of the Penal Code deems each participant to have committed the offence committed in prosecution of a common unlawful purpose where the offence was a probable consequence. Relying on Dickson Mwangi Munene and Stephen Ariga, the court held common intention may form during execution of the act. The coordinated assault and joint failure to obtain urgent medical attention evidenced shared intention to cause grievous harm.
Whether failure to call the investigating officer vitiated the prosecution case
No. It is good practice but its omission does not automatically result in acquittal where the called witnesses establish the ingredients of the offence.
The court adopted Haward Shikanga, Gatuiku Kiriungi and Reuben Gitonga Nderitu, holding that each case must be considered on its own circumstances. Since the prosecution discharged the burden of proving murder beyond reasonable doubt through the nine witnesses called, the absence of the investigating officer occasioned no failure of justice to the appellants.
Legal principles established
#- On a first appeal, the Court of Appeal is obliged to re-evaluate the evidence on record, bearing in mind that the trial court saw and heard the witnesses, and should be slow to reverse findings of fact unless unsupported by the evidence.
- Failure to call the investigating officer in a criminal trial is not fatal to the prosecution case so long as the witnesses called establish the ingredients of the offence; it is good practice but cannot automatically result in an acquittal.
- Malice aforethought may be inferred where the force deployed is excessive, the head is targeted with a dangerous weapon such as a gun butt, and the assailant knows death or grievous harm is likely.
- Common intention under Section 21 of the Penal Code may be formed in the course of the execution of the unlawful act and need not precede it.
Court orders
#- 1.The appeal against conviction is dismissed
- 2.The appeal is dismissed in its entirety
- 3.The sentence of ten years imprisonment imposed by the trial court is left undisturbed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated
- Jurisdiction invoked
- First appeal to the Court of Appeal under the appellate framework for convictions from the High Court (Court of Appeal jurisdiction over High Court criminal appeals); the judgment does not cite the specific provision.
Relief refused
#Quashing of convictions and setting aside of sentences
The prosecution proved the charge of murder beyond reasonable doubt; malice aforethought and common intention were established and the defence was an afterthought.
Acquittal on the ground that the investigating officer was not called as a witness
Failure to call the investigating officer is not fatal to the prosecution case where the witnesses called establish the ingredients of the offence.
Costs
No costs order was made in the judgment.
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 upshot of the foregoing is that the appeal herein is without merit and is dismissed in its entirety.
The appellants did not take aim against the sentence of ten years imprisonment imposed by the trial court and they were wise in that decision. There was also no cross-appeal in respect to that sentence. We will therefore hold our peace and let the sentence be.
This being a first appeal, this Court is obliged to re- evaluate the evidence on record to determine if the trial court's decision was based on evidence and is legally sound.
we find that the appellants were aware that their actions would result in grievous harm and therefore acted with malice aforethought.
failure to call the investigating officer in a criminal trial is not fatal to the prosecution case so long as the witnesses called to testify have established the ingredients of the offence
Issues in the judgment
#The judgment records dismissal of the appeal but makes no express order as to costs.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Langat alias Zachariah v Republic (Criminal Appeal 33 of 2019) [2026] KECA 734 (KLR)[2026] KECA 734 (KLR)10 Apr 2026applied
Cite this brief
#Cite this brief
Caselaw, "Watulo & another v Republic (Criminal Appeal 218 of 2020) [2023] KECA 1541 (KLR)", Case Analysis (2023). Criminal Appeal (not stated on record beyond Memorandum of Appeal dated 26th January 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1541/eng@2023-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.