Anyula v Republic (Criminal Appeal 30 of 2019) [2025] KECA 68 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that everyone who joins a group assault can be guilty of murder, even without personally landing the fatal blow.
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 ingredients of the offence of murder, namely the death of the deceased, that the accused committed the unlawful act causing the death, and malice aforethought
- 2.Whether the appellant, who was not specifically seen assaulting the deceased, could be convicted on the doctrine of common intention
- 3.Whether the trial court failed to evaluate the evidence as a whole and to consider the appellant's defence
Key legal issues
#Ingredients of the offence of murder
The ingredients are the death of the deceased, that the accused committed the unlawful act causing the death, and malice aforethought; all were established against the appellant.
The court adopted the formulation in Anthony Ndegwa Ngari v Republic. Death was not in doubt, being confirmed by witnesses and the post-mortem report. The contested questions were causation and malice aforethought, both resolved against the appellant through the evidence of the group assault and the doctrine of common intention.
Doctrine of common intention where the accused did not personally assault the deceased
Even if the appellant only assaulted Collins, he would still be guilty of the murder of the deceased by operation of common intention, since death was a probable consequence of the joint unlawful plan.
The court found the appellant was a core participant who helped fish out both victims and made the phone call locating the deceased. The intention was at the very least to assault the victims unlawfully. Each participant is accountable for offences committed in executing the common plan as if committed alone, because he knew or ought to have realized the assault on the deceased would likely result.
Malice aforethought by operation of common intention
The manner of the assault showed an intention to cause at least grievous harm, which under section 206(a) of the Penal Code constitutes malice aforethought, and that intention is ascribed to all members of the group acting with common intention.
The court linked the common intention analysis to section 206(a) of the Penal Code, which deems malice aforethought established where the accused intends to cause grievous bodily harm. Because the intention to cause grievous harm was that of the group, it was ascribed to each participant, including the appellant, satisfying the third ingredient of murder.
Whether the trial court ignored the appellant's defence
The trial judge summarized the defence earlier in her judgment; failure to refer to it expressly in her analysis did not mean it was ignored, and the Court of Appeal found the defence displaced by the evidence.
The appellant's defence was that he was a mere observer who followed a crowd. The court held that the learned Judge had summarized the defence in the judgment, and that the cogent and compelling testimony of PW2, PW3, PW4 and PW6 placed the appellant at the scene as a key participant in the group of four, outrightly displacing that defence.
Legal principles established
#- On a first appeal, the appellate court must re-evaluate the evidence afresh and reach its own conclusions, making allowance for the trial court's advantage of seeing and hearing the witnesses.
- A participant in a group that acts with common intention to commit an unlawful assault is accountable for offences committed in execution of that common plan, even where he did not personally inflict the fatal injuries, provided death was a probable consequence of the plan.
Court orders
#- 1.Affirmation of the appellant's conviction for murder
- 2.Dismissal of the appellant's appeal in its entirety
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kakamega
- Criminal Case No. 14 of 2012
- Jurisdiction invoked
- First appeal to the Court of Appeal against conviction and sentence (Criminal Procedure Code appellate jurisdiction; judgment does not cite the specific section)
Relief refused
#Quashing of conviction and setting aside of sentence and release from custody
The court found the conviction safe, holding that the appellant participated in the assault with a common intention and that malice aforethought was established
Costs
No order as to costs is recorded 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.
In the end, therefore, we are satisfied that the conviction of the appellant was safe and we hereby afirm it. In doing so, we dismiss the appellant's appeal in its entirety.
Since the appellant jointly devised a joint intention to execute an unlawful action, to wit, the joint assault of Collins and the deceased, the appellant must be held accountable for all ofiences which are committed while executing the common plan even if he did not specifically assault the deceased.
It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions.
Issues in the judgment
#The judgment contains internal inconsistency in its description of the evidence, describing PW4 as male ('When they left his house, PW4 went to the appellant's home') although PW4, Memble Mwangangi, is elsewhere described as a woman in her own house, and the trial judge's excerpt refers to Membo's house as 'his (Membo's) house'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anyula v Republic (Criminal Appeal 30 of 2019) [2025] KECA 68 (KLR)", Case Analysis (2025). Criminal Appeal (not stated on record; appeal from Kakamega High Court Criminal Case No. 14 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/68/eng@2025-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.