Kadungo v Republic
The bottom line
#Kenya's Court of Appeal confirmed that a death occurring within a year and a day of an assault counts as murder, upholding a 30-year sentence.
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 proved the offence of murder against the appellant
- 2.Whether the evidence on record sufficiently links the appellant to the assault of the deceased on 3rd June 2017
- 3.Whether the failure to call certain critical witnesses (the deceased's mother and the motorcycle rider) dented the prosecution's case
- 4.Whether malice aforethought was established
- 5.Whether the trial court's sentence of 30 years' imprisonment should be interfered with
Key legal issues
#Causation of death nearly four months after the assault
The death was caused by the assault; sections 215(1) and 213(a) and (b) of the Penal Code deem the appellant to have caused the death occurring within a year and a day, including where medical treatment contributed.
The deceased was assaulted in June 2017 and died in September 2017, within a year and a day. The postmortem attributed death to increased intracranial pressure from chronic hemorrhage secondary to head trauma. Section 213(a) deems the inflictor of injury to have caused death even where medical treatment was the immediate cause, provided it was employed in good faith and with common knowledge and skill.
Identification of the appellant as the assailant by a single witness
PW1's vivid evidence of two encounters on the material day squarely placed the appellant at the scene; identification was not in doubt.
PW1 knew the appellant well and met him twice on the material day, the second encounter being when the appellant struck the deceased. The court found the evidence vivid and free of doubt. The appellant's alibi did not speak to the events of 3rd June 2017, and the defence witnesses confirmed the witchcraft dispute which supplied motive.
Dying declaration under section 33(a) of the Evidence Act
The deceased's statement to PW4 was a dying declaration; it was admitted with caution and corroborated by PW1's evidence placing the appellant at the scene.
Section 33(a) admits statements as to the cause of death regardless of expectation of death. The court applied Philip Nzaka Watu, holding that the declaration must be received with caution. Here there was history of bad blood, but the court found the deceased's perception was not questionable and the declaration was corroborated by PW1's eyewitness account.
Failure to call the deceased's mother and the motorcycle rider as witnesses
The prosecution has discretion over which witnesses to call; the uncalled witnesses would only have corroborated PW1 and their absence did not dent the case.
Section 143 of the Evidence Act requires no specific number of witnesses. Citing Julius Kalewa Mutunga, the court held it would not interfere with the prosecution's discretion absent an oblique motive. The evidence already adduced was sufficient to prove the attack and the identity of the assailants, so the ground failed.
Malice aforethought
Malice aforethought was established; the appellant knew or ought to have known that his actions were likely to cause grievous harm or death.
Applying section 206 of the Penal Code and Republic v. Tubere s/o Ochen, the court inferred malice from the part of the body targeted and the injuries inflicted. Although the weapon was not produced, the deceased suffered brain injuries, and the appellant's witchcraft accusations against the deceased's family supplied motive.
Sentence of 30 years' imprisonment
The trial judge considered the pre-sentence report, current jurisprudence on the death sentence and the appellant's lack of remorse; no basis for interference was shown.
Sentencing is a discretionary matter of the trial court. The court found that the learned judge took into account both mitigating and aggravating factors, and the appellant provided no reasons for interfering with that discretion. The appeal against sentence was accordingly dismissed.
Legal principles established
#- A first appellate court must subject the entire evidence tendered at trial to fresh and exhaustive examination and reach its own independent conclusions, while giving allowance for not having seen the witnesses.
- Death occurring within a year and a day of the causative act is deemed to have been caused by that act under section 215(1) of the Penal Code.
- A person who inflicts bodily injury is deemed to have caused death where the injured person undergoes medical treatment which causes death, if the treatment was employed in good faith and with common knowledge and skill.
- A dying declaration must be admitted with caution and, while corroboration is not a rule of law, the trial court must be assured the conviction founded on it is safe.
- Whether a witness should be called by the prosecution is a matter within the prosecution's discretion, which an appellate court will not interfere with absent an oblique motive.
Court orders
#- 1.The appeal against conviction is dismissed
- 2.The appeal against sentence is dismissed
- 3.The entire appeal is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kapenguria
- HCCRC No. 11 of 2017
- Jurisdiction invoked
- Section 379(1) of the Criminal Procedure Code and Rule 31(1)(a) of the Court of Appeal Rules, 2022 (first appeal)
Relief refused
#Allowance of the appeal against conviction
The prosecution proved the offence of murder; identification of the appellant and causation were established
Interference with the 30-year sentence
The trial judge considered mitigating and aggravating factors including the pre-sentence report and lack of remorse
Costs
No costs order was made in the judgment.
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 entire appeal has no merit and is dismissed.
In the end, we nd that the prosecution proved the oence of murder against the appellant. The appeal against conviction is therefore without merit and is dismissed.
Like the appeal against conviction, we nd the appeal against sentence to be without merit. We also dismiss it.
This vivid evidence squarely placed the appellant at the scene of the crime. In view of such evidence, no doubt can be entertained about the identication of the appellant as the person who attacked the deceased.
We therefore do not hesitate in agreeing with the trial Court that the evidence adduced by the prosecution suciently established that the deceased’s death arose from the assault suered in the hands of the appellant on 3rd June 2017.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kadungo v Republic", Case Analysis (2024). Criminal Appeal E054 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1899/eng@2024-06-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.