Katana & another v Republic (Criminal Appeal 14 & 53 of 2021 (Consolidated)) [2024] KECA 1163 (KLR)
The bottom line
#The Court of Appeal upheld two brothers' murder convictions and 35-year sentences, ruling that sworn child witnesses need no corroboration and minor evidence gaps don't defeat prosecutions.
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 was obliged to call Katana Mtawali as a witness and whether an adverse inference should be drawn from its failure to charge or call him
- 2.Whether the evidence of the minor eyewitnesses PW1 and PW2, given on oath, required corroboration
- 3.Whether discrepancies in the eyewitnesses' evidence were material enough to vitiate the conviction
- 4.Whether the failure to call the initial investigating officer and the alleged break in the chain of custody of the murder weapon were fatal to the prosecution case
- 5.Whether the learned Judge erred in rejecting the appellants' alibi defence
- 6.Whether the learned Judge's remarks concerning kinsmen and witchcraft-murder witnesses were unjustifiable
- 7.Whether malice aforethought was proved
- 8.Whether the sentence of 35 years' imprisonment was manifestly excessive
Key legal issues
#Duty of the prosecution to call all witnesses
The failure to charge or call Katana Mtawali did not entitle the court to draw an adverse inference because there was no evidence that his statement had been recorded or that his evidence was concealed, and the appellants could have called him themselves
The court affirmed the Cholmondeley and Bukenya principles but stressed that the adverse-inference rule applies where the prosecution's evidence is barely adequate and a readily available witness is withheld. Here the charge indicated joint commission with others not before the court, and it was unknown whether any statement was taken from Mtawali. The defence could have insisted on his availability as its own witness, per Mwangi v R on prosecutorial discretion.
Corroboration of sworn evidence of children of tender years
Since PW1 and PW2 testified on oath, their evidence did not as a matter of law require corroboration
Section 124 of the Evidence Act requires corroboration only where the evidence is admitted under section 19 of the Oaths and Statutory Declarations Act, which deals with unsworn statements of children. The court followed Isaack Kijiba v R that children can make good witnesses and sworn evidence of children requires no corroboration as a matter of law.
Discrepancies in prosecution evidence
The discrepancies between PW1 and PW2 regarding the weapon and who saw the attack were minor and did not vitiate the conviction
Applying John Cancio De SA v V N Amin and John Nyaga Njuki v R, the court held that discrepancies are inevitable in trials with many witnesses and only matter if they create doubt as to guilt. PW1's impression that she alone witnessed the attack was explained by PW2 being behind her, and PW2's confusion about other items at the scene did not detract from his clear identification of the iron bar as the weapon.
Alibi defence
The learned Judge properly considered and rejected the alibi defence, which was displaced by the strong recognition evidence of PW1 and PW2 and did not account for the appellants' whereabouts at the material time
The court re-evaluated the evidence, found the appellants were well known to the child eyewitnesses so the evidence was one of recognition rather than identification, which is more reliable per Anjononi v R. The appellants' evidence did not address the time the incident occurred, so the trial Judge was entitled to reject the alibi, applying Peter Kiambi Muriuki v R.
Judicial remarks on kinsmen and witchcraft
The trial Judge's remarks that witnesses readily come to the aid of kinsmen in witchcraft-murder cases were unjustifiable as they were unsupported by any evidence
The court agreed with the appellants that such generalised remarks were without evidentiary foundation. Following Keter v R, credibility is a matter of judicial discretion based on evidence, and there is no principle disbelieving a witness merely because of relationship to the accused. However, this finding did not vitiate the conviction given the strength of the eyewitness evidence.
Malice aforethought and sentence
Malice aforethought was readily inferred from the nature of the injuries, and the 35-year sentence was not open to interference
The deceased sustained head injuries and a fractured arm, injuries meant to cause death or grievous harm, so malice aforethought could be inferred per Bonaya Tutut Ipu v R and Ernest Asami Bwire Abanga v R. On sentence, the court applied Bernard Kimani Gacheru v R on the limited grounds for appellate interference and found none established.
Legal principles established
#- Sworn evidence of a child of tender years does not, as a matter of law, require corroboration
- The prosecution is obliged to call all witnesses necessary to establish the truth, but adverse inference arises only where the evidence adduced barely establishes the case and a readily available witness is withheld
- Failure to call a police officer, including the investigating officer, is not fatal to the prosecution case unless the circumstances of the particular case so demonstrate
- Non-recovery of a murder weapon is not fatal to the prosecution case if there is credible evidence that the offence was committed
- Courts may not make generalised statements unsupported by the evidence on record
- There is no principle of law entitling a court to disbelieve a witness merely because of a relationship to the accused
- An appellate court will not interfere with sentence unless it is manifestly excessive, or the trial court overlooked a material factor, took into account wrong material, or acted on a wrong principle
- Malice aforethought may be inferred from the part of the body injured, the type of weapon used, the type of injuries inflicted and the accused's subsequent conduct
Court orders
#- 1.The consolidated appeals are dismissed in their entirety
- 2.The convictions and sentences of 35 years' imprisonment imposed by the High Court are upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appellate criminal jurisdiction under the Court of Appeal's appellate powers over High Court convictions (Article 164(1)(a) of the Constitution, as an appeal from the High Court in its original criminal jurisdiction)
- Consolidated with
- Criminal Appeal No. 14 of 2021
Relief refused
#Quashing of the convictions on the ground that the prosecution withheld Katana Mtawali as a witness
No evidence that Mtawali's statement was recorded or that his evidence was concealed; the appellants could have called him as their own witness
Allowance of the alibi defence
The alibi was considered and rejected; the evidence of recognition by PW1 and PW2 displaced it
Interference with the 35-year sentence
The sentence was lawful and the court was not persuaded that the trial court's discretion was improperly exercised
Costs
No costs order is recorded in the judgment; being a criminal appeal, each party was to bear its own costs (not expressly addressed).
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.
We have re-evaluated the evidence on record as presented before the learned Judge. We find no merit in this appeal which we hereby dismiss in its entirety.
It is so ordered.
In the case before us, PW1 and PW2 testified under oath. Their evidence did not, as a matter of law, require corroboration.
the mere fact that a murder weapon is not traced is not necessarily fatal to the prosecution case as long as there is credible evidence that the offence was committed.
Courts ought not to make generalised statements not backed by evidence on record except in cases where the facts justify the court in taking judicial notice of particular circumstances.
the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle.
Issues in the judgment
#Witness numbering inconsistencies in the trial record noted by the appellate court itself: Dr. Swaleh was erroneously recorded as PW7 (referred to as PW8) and Henry Sang was erroneously recorded as PW8 (referred to as PW9)
The judgment inconsistently names the 2nd appellant: the opening paragraph names him Katana Kazungu Katana, while paragraph 17 names him Kazungu Katana Kazungu
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Katana & another v Republic (Criminal Appeal 14 & 53 of 2021 (Consolidated)) [2024] KECA 1163 (KLR)", Case Analysis (2024). Criminal Appeal No. 53 of 2021 (consolidated with Criminal Appeal No. 14 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1163/eng@2024-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.