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Court of AppealDismissedCriminal Appeal Kisumu (High Court appeal from Kisii HCCR No. 96 of 2014)

Manini & 4 others v Republic (Criminal Appeal 26 of 2019) [2024] KECA 47 (KLR)

Court of Appeal of Kenya
25 January 2024
3,710 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 the murder convictions and 25-year sentences of five appellants, confirming that a murder weapon need not be recovered for a conviction to stand.

What this practically means

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Executive summary

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This is a first appeal to the Court of Appeal at Kisumu against conviction and sentence in Kisii HCCR No. 96 of 2014 (Majanja, J.), where the five appellants were convicted of the murder of Dennis Obwoga Kerema, committed on 17 April 2014 at Bogita sub-location, Kisii County, and each sentenced to 25 years' imprisonment on 5 December 2018. The appeal was heard by Okwengu, Omondi and Ngugi, JJA in a single judgment of the court, which condensed the five grounds of appeal into two broad issues: whether the prosecution proved its case beyond reasonable doubt, and whether the 25-year sentence was warranted. On the evidence, the Court held that PW1 and PW2 credibly identified the appellants by recognition, aided by lamplight and close proximity; that the prosecution was not obliged to call every witness, and Gladys and Moseti were not crucial; that non-recovery of the panga was not fatal; that the grudge over a goat established motive and the nature of the injuries established malice aforethought; and that the alibi defences failed because the medical documents predated the killing by months and were inconsistent with the Kenyatta Hospital claim. Relying on Muruatetu, the Court found the sentencing discretion had been properly exercised. The Court affirmed the decision below in full, dismissed the appeal against both conviction and sentence, and upheld the 25-year sentence. No costs order was made. This judgment binds subordinate courts and the High Court on first appellate duties, witness-calling discretion, non-production of a murder weapon, and post-Muruatetu sentencing for murder.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the prosecution proved its case beyond reasonable doubt, including whether failure to call certain crucial witnesses was fatal
  2. 2.Whether the ingredients of murder (death, unlawful act, malice aforethought) were proved, including whether non-recovery of the murder weapon was fatal
  3. 3.Whether the alibi defences were properly rejected
  4. 4.Whether the 25-year imprisonment sentence was warranted

Key legal issues

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01

Duty of the first appellate court

Holding

The Court conducted a fresh, exhaustive re-evaluation of the evidence as required on a first appeal

Reasoning

Citing Okeno v Republic, the Court restated that a first appellate court must submit the evidence as a whole to fresh exhaustive examination, weigh conflicting evidence, make its own findings and draw its own conclusions, while making allowance for the trial court's advantage of hearing and seeing the witnesses. The Court then re-analysed the identification evidence, the medical evidence, the alibi defences and motive before reaching its own conclusions.

p. 2
02

Failure to call crucial witnesses

Holding

Failure to call Gladys and Moseti did not prejudice the appellants; the prosecution has discretion over which witnesses to call

Reasoning

The Court acknowledged Bukenya v Uganda on calling crucial witnesses but held the discretion as to which witnesses to call rests with the prosecution, provided crucial witnesses are called. On the evidence, Gladys and Moseti were not present at the time of the assault, as PW1 clarified in cross-examination, so their evidence would not have been material and no prejudice was demonstrated.

p. 5
03

Non-production of the murder weapon

Holding

Conviction may stand without the weapon being recovered as an exhibit

Reasoning

The Court applied Karani v Republic and its own decision in Godfrey Wafula Simiyu, holding there is no legal requirement to produce the murder weapon. Given the lapse of time and the escort of the deceased to the police station by the assailants themselves, the Court found it safe to assume the weapon was disposed of, and the postmortem and medical testimony sufficiently proved the cause of death.

p. 6
04

Ingredients of murder and malice aforethought

Holding

Death, causation by the appellants' unlawful act, and malice aforethought were all proved beyond reasonable doubt

Reasoning

The Court restated the three ingredients of murder and found each proved: death was confirmed by the postmortem report and PW3; PW1 and PW2 credibly identified the appellants by recognition under lamplight and close proximity; and the revenge motive, the vulnerability of the head targeted, the weapon used and the manner of attack established an intention to cause grievous harm or death.

p. 6
05

Alibi defence

Holding

The alibi defences were properly rejected as the medical documents predated the incident by months

Reasoning

The 1st appellant's treatment documents showed admission on 30 October 2013 and discharge on 7 November 2013, more than five months before the April 2014 killing. The 2nd appellant claimed he was caring for the 1st appellant at Kenyatta National Hospital, yet the documents produced were not from that hospital. The defences were therefore properly rejected when weighed against the positive recognition by PW1 and PW2.

p. 6
06

Sentence

Holding

The 25-year sentence was lawful and properly exercised in light of Muruatetu and is upheld

Reasoning

Although section 204 of the Penal Code prescribes a mandatory death sentence for murder, the Supreme Court in Muruatetu declared that mandatory nature unconstitutional, restoring judicial sentencing discretion. The learned Judge exercised that discretion, and considering that a life was lost through a cut wound inflicted on the head, the Court found no reason to disturb the sentence.

p. 7

Legal principles established

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  • A first appellate court must re-evaluate the whole evidence, make its own findings and draw its own conclusions, while allowing for the trial court's advantage of seeing and hearing the witnesses
  • The prosecution is not obliged to call a multitude of witnesses; it need only call witnesses sufficient to establish the charge beyond reasonable doubt
  • Non-recovery of the murder weapon is not fatal to a murder conviction where the court believes on the evidence that such weapon existed at the time of the offence
  • Following Muruatetu, a court sentencing for murder is not bound to impose the mandatory death sentence under section 204 of the Penal Code

Court orders

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  1. 1.The appeal against both conviction and sentence is dismissed in its entirety
  2. 2.The sentence of 25 years' imprisonment is affirmed and upheld

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Kisii
Kisii HCCR No. 96 of 2014
Jurisdiction invoked
First appeal to the Court of Appeal under the Criminal Procedure Code (Cap 75)

Relief refused

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Setting aside of conviction

Identification by PW1 and PW2 was credible and all ingredients of murder were proved beyond reasonable doubt

p. 7

Review of the 25-year sentence

The trial judge properly exercised his sentencing discretion in line with Muruatetu

p. 7

Costs

No costs order was made in the judgment.

Quotable passages

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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 appellants appeal on both conviction and sentence is without merit and is dismissed in its entirety.
p. 7Disposition - dismissal of appeal
There would be no reason to disturb the sentence of 25 years. The same is hereby afirmed and upheld.
p. 7Final orders - sentence affirmed
The prosecution is not obliged to call a superfiuity of witnesses but only such witnesses as are suficient to establish the charge beyond any reasonable doubt.
p. 5Number of prosecution witnesses
whereas it might have been important to produce the murder weapon, it is our considered view that failure to produce the same was not fatal to the prosecution’s case.
p. 6Non-recovery of murder weapon
It is not the function of the first appellate court to merely scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions.
p. 2Duty of first appellate court

Issues in the judgment

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minor

The case number of the present appeal before the Court of Appeal is not stated in the judgment; it is inferred only from the delivery station and the trial case number

minor

The names of the individual appellants are not set out in a coram or title; they appear only in the narrative as the 1st to 5th appellants (e.g. the 4th appellant is named as Joseph Mandela Manini alias Tom)

minor

Citations in the judgment contain typographical errors ('ofience', 'afirmed', 'Pandya v Republic (195) EA (336)') affecting accuracy of quoted citations

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, "Manini & 4 others v Republic (Criminal Appeal 26 of 2019) [2024] KECA 47 (KLR)", Case Analysis (2024). Criminal Appeal Kisumu (High Court appeal from Kisii HCCR No. 96 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/47/eng@2024-01-25

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