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Court of AppealDismissedCriminal Appeal (not stated in judgment)

Makasi v Republic (Criminal Appeal E004 of 2022) [2024] KECA 743 (KLR)

Court of Appeal of Kenya
21 June 2024
4,473 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal upheld a 15-year murder sentence, ruling self-defence fails where the attacker controls events and uses excessive force.

What this practically means

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Executive summary

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The appellant, Abraham Sindani Makasi, was convicted by the High Court of the murder of Evans Wafula Wafukho, committed on 8th May 2016 at his home in Bungoma County, and sentenced to 15 years imprisonment. On a first appeal to the Court of Appeal at Nakuru (Sichale, Ochieng and Korir, JJA), he raised nine grounds summarised as failure to consider his defence, failure to prove the case beyond reasonable doubt, contradictions in the prosecution evidence, and failure to consider his mitigation. The prosecution relied on circumstantial evidence: independent witnesses (members of Nyumba Kumi and a village elder) found the appellant locked in his house with the dying deceased, armed with a machete, club and knife, and forensic analysis matched the deceased's blood on the appellant's clothing. The court re-affirmed that on a first appeal it must re-evaluate the evidence, that a murder conviction requires proof of death, causation and malice aforethought, and that circumstantial evidence must exclude every other reasonable hypothesis of innocence. It held that the evidence pointed to no one but the appellant. The claim of self-defence under section 17 of the Penal Code failed because the appellant was in control of events, the deceased was unarmed and already subdued, and the force used was neither necessary nor reasonable. Malice aforethought was inferred from the multiple injuries inflicted on sensitive parts of the body and the appellant's prevention of rescue. On sentence, applying Bernard Kimani Gacheru v Republic, the court held the trial Judge had considered the appellant's mitigation and time in custody, and declined to interfere. The appeal against both conviction and sentence was dismissed in its entirety.

Questions the Court framed

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

  1. 1.Whether the appellant's conviction was backed by the evidence on record
  2. 2.If so, whether the appellant established grounds for interference with the sentence

Key legal issues

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01

Whether the conviction was supported by the evidence (causation via circumstantial evidence)

Holding

The evidence established that the deceased was assaulted at the appellant's house; his blood on the appellant's clothing and the testimony of independent witnesses pointed to the appellant alone as the assailant.

Reasoning

No witness saw the appellant injure the deceased, so the case rested on circumstantial evidence. PW3, PW5 and PW6 found the appellant locked in the house with the deceased, armed with a machete, club and knife, and the deceased lying in a pool of blood after the appellant fled. Forensic analysis matched the deceased's blood on the appellant's clothes. The appellant's claim of a gang attack was unsupported by the independent witnesses and rejected.

p. 5
02

Whether the defence of self-defence was available to the appellant

Holding

Self-defence failed because the appellant was in control of events, the deceased had no weapon, and the force used was neither necessary nor reasonable.

Reasoning

Section 17 of the Penal Code incorporates common-law principles of self-defence, requiring imminent danger and reasonable, proportionate force. Here the deceased had already been subdued and was nursing multiple injuries; the appellant threatened the rescuers rather than facing an imminent attack. The appellant's own claim that he only hit the deceased with his fist could not account for the fatal injuries.

p. 7
03

Whether malice aforethought was established

Holding

Malice aforethought was inferred from the nature and multiplicity of the injuries inflicted on sensitive parts of the deceased's body and the appellant's conduct in barring rescuers.

Reasoning

Malice aforethought may be inferred from intention to cause death or grievous harm, and from repeated blows. The stab wounds to the shoulders, arm and leg, the fractured rib and head wound, and the appellant's blocking of the door to prevent rescue demonstrated an intention to cause death or grievous harm, satisfying section 206 of the Penal Code.

p. 7
04

Whether the sentence of 15 years should be disturbed

Holding

The trial court considered the appellant's mitigation and time spent in custody; no basis for appellate interference was shown.

Reasoning

Interference with sentence is warranted only where the trial court overlooked a material factor, considered irrelevant factors, acted on wrong principles, or the sentence is manifestly excessive. The sentencing record shows the Judge expressly considered the appellant's first-offender status, mitigation, and five years in custody. The sentence is legal and the appeal against it fails.

p. 8

Legal principles established

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  • On a first appeal the Court of Appeal must re-evaluate the evidence on record and reach its own conclusion, while bearing in mind that the trial court saw and heard the witnesses.
  • For a murder conviction to be sustained, the prosecution must prove death, that the accused caused it by an unlawful act, and malice aforethought; without malice aforethought the offence would be manslaughter.
  • Circumstantial evidence can sustain conviction only where the inculpatory facts are incompatible with innocence and incapable of explanation on any other reasonable hypothesis; the burden never shifts to the accused.
  • Self-defence requires an imminent or apprehended attack and the force used must be both necessary and reasonable in the circumstances.
  • An appellate court will not interfere with a trial court's discretion on sentence unless the sentence is manifestly excessive or the court overlooked a material factor, took into account wrong material, or acted on a wrong principle.

Court orders

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  1. 1.The appeal against conviction is dismissed
  2. 2.The appeal against sentence is dismissed
  3. 3.The appeal is dismissed in its entirety

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya (Bungoma)
Jurisdiction invoked
Section 379(1) of the Criminal Procedure Code (first appeal on matters of law and fact)

Relief refused

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Acquittal on the ground of self-defence

The appellant was not under imminent threat; he was in control of events and the force used was not reasonable or proportionate

p. 7

Reduction of the 15-year sentence on the ground that mitigation was not considered

The trial Judge took into account the appellant's mitigation and his 5 years in custody; the sentence is legal and there were no grounds for interference

p. 8

Costs

No order as to costs appears in the judgment (criminal appeal; no costs order made).

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.

This being a first appeal, our jurisdiction as provided under section 379(1) of the Criminal Procedure Code encompass both matters of law and fact.
p. 3Jurisdiction on first appeal
In order to justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt.
p. 5Circumstantial evidence
It is therefore apparent that for an accused person to successfully invoke the defence of self-defence, the circumstances must be sufficient to establish, at least, an imminent danger.
p. 6Self-defence
The appeal against conviction is therefore without merit and is hereby dismissed.
p. 7Final orders - conviction
Like the appeal against conviction, we similarly find the appeal against sentence to be without merit and we dismiss it.
p. 8Final orders - sentence
The upshot of the foregoing is that this appeal lacks merit and is hereby dismissed in its entirety.
p. 8Final orders - disposition

Issues in the judgment

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minor

The judgment does not state the case number of the appeal or of the High Court trial, nor the date of the trial court's judgment or the identity of the trial Judge; only the sentencing date of 30th July 2021 is given.

minor

The judgment refers to the circumstances of the appellant's case as a 'brawl' in the quoted passage from Roba Galma Wario v Republic, which does not match the facts found by the court.

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, "Makasi v Republic (Criminal Appeal E004 of 2022) [2024] KECA 743 (KLR)", Case Analysis (2024). Criminal Appeal (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/743/eng@2024-06-21

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