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Court of AppealDismissedCriminal Appeal (name not stated in judgment)· [2024] KECA 1169 (KLR)

Kenga Kajembe v Republic

Court of Appeal of Kenya
20 September 2024
AMA. K. MurgorKLDR. K. I. LaibutaGOG. V. Odunga
3,459 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 a 27-year murder sentence, ruling that slitting a victim's throat with a knife proves intent to kill and that self-defence failed.

What this practically means

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Executive summary

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The appellant was convicted by the High Court of the murder of Kea Katana, committed on 14th February 2019 at a palm wine club in Burangi Village, Magarini Sub-County, and sentenced to 27 years' imprisonment. On appeal, counsel for the appellant argued that there was no malice aforethought because the appellant acted in self-defence during a sudden fight, and challenged identification. The Court of Appeal, comprising Murgor, Laibuta and Odunga, JJ.A, framed three issues: malice aforethought, identification, and self-defence. On self-defence, the Court found no evidence that the deceased attacked the appellant; PW1 had described the appellant as the aggressor who walked over, grabbed the deceased's head and slit his throat. On malice aforethought, applying the factors of weapon used, part of the body injured and nature of the injuries, the Court held that the willful slitting of the deceased's neck with a knife supported the inference of malice. Identification was by recognition, as the appellant was well known to the eyewitnesses, and he admitted being at the scene. The Court, mindful of its duty on a first appeal to re-examine the evidence afresh, found the conviction safe and declined to interfere with the sentence given the callous manner of the attack. The appeal was dismissed in its entirety on 20th September 2024 in Nairobi.

Key legal issues

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01

Whether self-defence was established

Holding

No. Both the prosecution and defence evidence pointed to no attack by the deceased warranting the appellant's vicious response.

Reasoning

PW1 testified the appellant was the aggressor who walked over to the deceased, grabbed his head and slit his throat. Nothing showed the deceased sought to harm the appellant. The Court therefore agreed with the trial judge that the defence of self-defence was not established.

p. 5
02

Whether malice aforethought was established

Holding

Yes. The use of a knife to willfully slit the deceased's neck supported an inference of malice aforethought.

Reasoning

Relying on the factors in Chesakit vs UG and Rex vs Tuper S/O Ocher - the weapon used, the part of the body injured and the type of injuries inflicted - the Court held the willful slitting of the neck showed the attack was aimed at causing grievous harm or death, proving malice beyond reasonable doubt.

p. 7
03

Whether the appellant was properly identified

Holding

Yes. Identification was by recognition, and the appellant admitted being at the scene.

Reasoning

PW1 and PW2 knew the appellant well, PW1 being a club owner who served him as a frequent customer. Further, the appellant admitted to having been at the scene and attacking the deceased, albeit claiming self-defence.

p. 7

Legal principles established

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  • Malice aforethought may be inferred from the weapon used, the part of the body targeted and the viciousness of the attack
  • Self-defence fails where there is no evidence of an attack on the accused that would have led him to believe his life was in danger
  • A first appellate court must re-examine and analyse the evidence afresh while allowing for the trial court's advantage of seeing the witnesses

Court orders

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  1. 1.Appeal dismissed in its entirety
On appeal from
High Court of Kenya
Jurisdiction invoked
First appeal to the Court of Appeal under the Criminal Procedure Code (specific section not stated in the judgment)

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, "Kenga Kajembe v Republic", Case Analysis (2024). Criminal Appeal (name not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1169/eng@2024-09-20

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