CLK v Republic (Criminal Appeal 103 of 2023) [2024] KECA 536 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a mother's murder conviction for killing her two children but replaced her death sentence with 40 years' imprisonment per count.
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 prosecution proved the case of murder against the appellant beyond reasonable doubt, including malice aforethought and identity of the killer
- 2.Whether the evidence of the appellant's telephone calls was inadmissible hearsay given non-production of call data records
- 3.Whether an adverse inference should be drawn against the prosecution for failing to call the appellant's husband and PW2's wife as witnesses
- 4.Whether the trial judge shifted the burden of proof to the appellant by questioning her failure to raise the defence of insanity
- 5.Whether the mandatory death sentence should be reviewed in light of the Muruatetu decision
Key legal issues
#Proof of malice aforethought and identity of the killer
Malice aforethought and the appellant's guilt were proved beyond reasonable doubt on the circumstantial evidence, the locked room, the telephone calls and the nature of the injuries
The court weighed the appellant's alibi against the totality of the evidence. The single room was locked from the inside with no other exit, making the alleged retaliatory attack by strangers a nil probability. Telephone calls announcing the intention to kill and the stabbing of the children's chests indicated a premeditated plan. Applying R v Tubere s/o Ochen factors, malice aforethought under section 206 of the Penal Code was established.
Last seen doctrine and burden of explanation
As the last person seen with the deceased children, the appellant was obliged to offer a plausible explanation of their deaths; her failure meant the prosecution's circumstantial chain stood unrebutted
Relying on section 111 of the Evidence Act and the Supreme Court decision in Republic v Ahmad Abolfathi Mohammed, the court held that where the prosecution proves the offence and the remaining facts lie uniquely within the accused's knowledge, she must explain them. The appellant offered no plausible explanation, and no co-existing circumstance weakened the chain of circumstances.
Admissibility of telephone-call evidence as hearsay
Evidence of the calls to PW2's wife and PW3 was admissible; it went to the fact that the calls were made, and telephone conversations need not be proved by forensic/call-data records
Following Subramaniam v Public Prosecutor and Maina wa Kinyatti v Republic, a statement is hearsay only when tendered for the truth of its contents. Here the evidence established that the calls were made and the intention they communicated, not the truth of any third-party assertion. There is no rule requiring production of call data records.
Failure to call the husband and PW2's wife as witnesses
No adverse inference could be drawn against the prosecution; there was no gap in the evidence only those witnesses could fill and no oblique motive was shown
Citing Bukenya v Uganda, Julius Kalewa Mutunga v Republic and Fabre v Arenales, the court reaffirmed that calling witnesses is a matter for the prosecution's discretion under section 143 of the Evidence Act, subject only to interference where the evidence is barely adequate or an oblique motive exists. Neither condition was met on this record.
Defence of insanity and alleged shifting of the burden of proof
The burden of proving insanity rests on the accused under section 11 of the Penal Code; no evidence of insanity at the time of the offence was adduced, so the trial judge's remarks did not shift any burden
The presumption of sanity is rebuttable under sections 11 and 12 of the Penal Code. The appellant maintained her innocence throughout and never raised insanity; the only evidence, the P3 Form, showed stable mental status. The test is strictly the state of mind at the time of the offence, per Leonard Mwangemi Munyasia v R. No evidence supported the defence.
Mandatory death sentence post-Muruatetu
Guided by Muruatetu, the court interfered with the sentence and substituted the death sentence with forty years' imprisonment on each count, running concurrently from the date of arrest
The trial court was constrained by the then-mandatory death sentence. After Muruatetu, courts enjoy unfettered sentencing discretion. Considering the mitigation (the appellant's mother's death from breast cancer, time in custody, anger management courses) but also her continued denial of guilt and lack of remorse, the court reluctantly interfered with the sentence.
Legal principles established
#- Evidence of a telephone call is not hearsay where it is tendered to establish the fact that the call was made, rather than the truth of its contents
- The prosecution is not obliged to call a superfluity of witnesses; an adverse inference for an uncalled witness arises only where the evidence tendered is barely adequate or an oblique motive is shown
- A person last seen with a deceased bears an obligation to provide a plausible explanation of how the deceased met their death; failing which an inference of responsibility may be drawn
- Section 11 of the Penal Code places the burden of proving the defence of insanity on the accused person, and the defence must be assessed strictly at the time the offence was committed
Court orders
#- 1.The appeal against conviction is dismissed
- 2.The appeal against sentence on both counts is allowed
- 3.The death sentence imposed in respect of the two counts is substituted with a prison term of forty (40) years for each count
- 4.The sentences shall run concurrently from 11th March 2013 when the appellant was arrested and later remanded at Langata Women Prison
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya, Nairobi
- High Court Criminal Case No. 39 of 2013
- Jurisdiction invoked
- First appellate jurisdiction over a conviction and sentence from the High Court exercising original criminal jurisdiction (Penal Code ss. 203, 204; Criminal Procedure Code)
Relief refused
#Overturning of conviction on both counts of murder
Re-evaluation of the evidence showed malice aforethought proved and the appellant, as the last person seen with the deceased children, offered no plausible explanation; the facts were incompatible with her innocence
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.
In conclusion, we dismiss the appellant's appeal against the conviction. However, we hereby allow the appeal against sentence on both counts.
We hereby substitute the death sentence imposed in respect of the two counts with a prison term of forty (40) years for each count.
The sentences shall run concurrently from 11th March 2013 when the appellant was arrested and later on remanded at Langata Women Prison.
The facts cannot be reasonably explained upon any other reasonable hypothesis other than that of the appellant's guilt.
Reasonable doubt is not mere possible doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.
Issues in the judgment
#The judgment contains internally inconsistent dates for the offences, variously stated as 2013, 2021 and 2023
The second deceased child is inconsistently named, described as AA, AB and A in different passages
The judgment misattributes submissions, stating 'It was the appellant's position that malice aforethought can easily be inferred...' in a passage clearly presenting the respondent's argument
The judgment inconsistently describes the evidence of phone calls as establishing the truth of the calls rather than the fact that they were made, in a passage otherwise setting out the opposite rule
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.
- Elvis v Republic (Criminal Appeal E033 of 2022) [2026] KECA 196 (KLR)[2026] KECA 196 (KLR)30 Jan 2026followed
Cite this brief
#Cite this brief
Caselaw, "CLK v Republic (Criminal Appeal 103 of 2023) [2024] KECA 536 (KLR)", Case Analysis (2024). Criminal Appeal (Nairobi) — appeal against conviction and sentence in High Court Criminal Case No. 39 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/536/eng@2024-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.