Adogo & 3 others v Republic (Criminal Appeal E240 of 2022) [2024] KECA 1587 (KLR)
The bottom line
#Kenya's Court of Appeal freed four men, ruling a murder charge cannot end in conviction for helping after the killing.
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 evidence of PW2 and PW3 on identification was sufficiently error-free to sustain a conviction
- 2.Whether the court was in error to rely on the testimonies of PW2 and PW3, who were minors, in view of the legal requirement for corroboration
- 3.Whether, in a criminal case in which an accused person has been charged with murder, it is open for the trial court to convict the accused person of the offence of accessory after the fact to murder as a lesser but cognate offence through the modality of section 179(2) of the Criminal Procedure Code
- 4.Whether the totality of evidence presented by the prosecution yielded the conclusion that the appellants were guilty of the offence of being an accessory after the fact
Key legal issues
#Sufficiency of night identification/recognition evidence
The identification evidence of PW2 and PW3 was error-free and ironclad: it was recognition evidence of persons known to the witnesses, under moonlight and torchlight, at close range, promptly reported the next day.
As a first appellate court the bench re-evaluated the identification evidence, applying the caution in Turnbull and Paul Etole. Both witnesses had long personal knowledge of the appellants, watched from a window less than ten metres away for a reasonable length of time, and gave remarkably similar, internally consistent accounts. Early reporting to relatives and in first police statements added probative value and guarded against embellishment.
Corroboration of minors' testimony
PW2, aged fourteen, was not a child of tender years and her evidence needed no corroboration; PW3, aged eleven, required corroboration, which was supplied by PW2's own evidence. There was no legal infirmity in accepting both testimonies.
Relying on Kibageny v Republic, the Court adopted fourteen years as the threshold for a child of tender years. The learned Judge had conducted voir dire for both children, though this was unnecessary for PW2. PW3's evidence was corroborated by that of PW2, which required no corroboration under section 124 of the Evidence Act, and both witnesses' accounts withstood thorough cross-examination.
Conviction under section 179(2) CPC of an uncharged cognate offence - accessory after the fact of murder
Accessory after the fact of murder is not a cognate offence to murder; conviction under section 179(2) on a murder charge was an error of law and is reversible.
Section 179(2) permits conviction of a minor offence proved by facts that reduce the major offence, but the minor offence must be cognate - of the same genus or species - to give the accused notice and a fair opportunity to defend. Following Ndecho v R and Kashizha s/o Madagede v R, the accessory takes no part in, and need not be present at, the murder and may know nothing of it until after its commission; it is therefore not a reduced form of murder.
Legal principles established
#- A conviction under section 179(2) of the Criminal Procedure Code may only be entered where the minor offence is both lesser and cognate - of the same genus or species - as the offence charged; accessory after the fact of murder is not cognate with murder.
- Convicting an accused of accessory after the fact of murder on a charge of murder under section 179(2) of the Criminal Procedure Code is a reversible error.
- The cognate-offence requirement in section 179(2) serves the constitutional function of ensuring the accused has sufficient notice of the case faced and a fair opportunity to make a defence.
Court orders
#- 1.The appeal is allowed
- 2.The conviction of the appellants of being accessories after the fact of murder is quashed
- 3.The appellants shall be set at liberty forthwith unless otherwise lawfully held in custody
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisii
- High Court Criminal Case No. 27 of 2018
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate criminal jurisdiction (Constitution Article 164; Criminal Procedure Code)
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.
The upshot is that the appeal herein succeeds. The conviction of the appellants of the offence of being accessories after the fact of murder (contrary to section 222 of the Penal Code) in a trial in which they had been charged with murder (contrary to section 202 as read with section 204 of the Penal Code) by dint of section 179(2) of the Criminal Procedure Code is a reversible error. We allow the appeal and quash the conviction. The appellants shall be set at liberty forthwith unless otherwise lawfully held in custody.
This is because one cannot be convicted under section 179(2) of the Criminal Procedure Code unless the offence of which he is convicted is not only lesser (arrived at through substraction) but is also cognate of the principal offence with which he was charged. “Cognate” in this sense has been defined to mean that the two offences must be of the same “genus” or “type”.
It is clear that the offence of being accessory after the fact is not cognate with murder, though in some cases evidence admissible to prove murder may establish that the accused, while not a murderer, was accessory after the fact of murder.
This is a first appeal. Accordingly, the role of this Court is to re- evaluate evidence, assess it, weigh it as a whole and reach our own independent conclusions. In doing so, we are required to bear in mind that we neither saw nor heard the witnesses, for which we must make allowance.
Issues in the judgment
#The charge is stated inconsistently: the murder charge is described as contrary to section 203 as read with section 204 of the Penal Code in the opening paragraphs, but later the Court states the appellants were charged under section 202 as read with section 204.
The judgment repeatedly states the learned Judge invoked section 179(2) of the Penal Code, whereas the provision invoked is section 179(2) of the Criminal Procedure Code; the trial court's holding is described both ways.
The judgment gives inconsistent citations for Turnbull, first as Republic vs. Turnbull [1976] 3 ALL ER 549 and later as R vs. Turnbull (1956) 3 All ER 549 at 552.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Adogo & 3 others v Republic (Criminal Appeal E240 of 2022) [2024] KECA 1587 (KLR)", Case Analysis (2024). Criminal Appeal (Court of Appeal, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1587/eng@2024-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.