Rajabu Kaingu Chengo & 2 others v Republic

The Court restated the Pandya principle: the appellant is entitled to the appellate court's own consideration and views of the evidence as a whole and its own decision thereon, carefully weighing but not disregarding the judgment below. Where credibility turns on demeanour, the appellate court is guided by the trial judge's impression, but other circumstances may warrant differing from that judge even on fact.

PW1, PW2, PW3 and PW5 each mentioned only the 1st and 2nd appellants. The trial court made no findings on the 3rd appellant's distinct role, contrary to the requirement in jointly charged cases. The arresting officer was not called, and where an accused's role is scanty that failure may be fatal, entitling the court to draw an adverse inference and give the appellant the benefit of doubt.

Relying on the Supreme Court's exposition in Ahmad Abolfathi Mohammed and Ram v State, the Court distinguished a direct acknowledgement of guilt (confession) from a statement of pertinent facts which with other evidence tends to prove guilt (admission). The statement here was not conclusive of guilt by itself and was therefore admissible as an admission, to be weighed with the rest of the evidence.

Section 206(a) of the Penal Code deems malice aforethought established by evidence showing intention to cause death or grievous harm. Arming with a panga and clubs and the admission of having 'finished' the deceased supported the inference of intent to cause grievous harm. Common intention may be inferred from presence, actions and failure to dissociate, without prior concerted agreement.

The witnesses knew the appellants and named them and others in the group. Recognition depends on personal knowledge of the assailant. Discrepancies in witness testimony are often inevitable; a court may overlook those that do not affect an otherwise proved case. Even if a sharp object inflicted the fatal wound, the appellants were armed and part of the assaulting group with common intention.

Following Robert Onchiri Ogeto, the court may presume the signature on a medical document genuine and may rely on section 77(1). Defence counsel did not object nor request the maker for cross-examination. Raising the complaint only on appeal, without a foundation laid at trial, could not invalidate the conviction.

Section 323 of the Criminal Procedure Code requires the accused to be asked to mitigate; mitigation is a necessary part of the trial and fair-trial principles apply to it, as the Supreme Court held in Muruatetu. The judgement should have restricted itself to the conviction. However, the defence counsel was aware of the judgment date but did not attend, the appellants mitigated without complaint, and the sentencing discretion was properly exercised, so no interference was warranted.

Applying S v Malgas, Mokela v The State, Ogola S/O Owoura and Bernard Kimani Gacheru, the Court reiterated that sentencing is pre-eminently for the trial court. The trial judge considered all relevant facts, no irrelevant factor, and did not act on a wrong principle. A pre-sentencing hearing is not mandated in every case; victim impact statements are not mandatory under section 329D(1).