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Court of AppealDismissedCriminal Appeal No. 80 of 1980· [1981] KECA 16 (KLR)

Kijiba v Republic [1981] KECA 16 (KLR)

Court of Appeal
20 November 1981
CMC.B MadanELE.J.E LawKPK.D Potter
2,458 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld a murder conviction, ruling that child witnesses can be reliable and that prosecutions must give detailed notice of extra evidence.

What this practically means

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Executive summary

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The Court of Appeal (Madan, Law and Potter JJA) dismissed the appellant's appeal against his conviction for the murder of John Kilonzo, a schoolboy abducted on September 5, 1979 and found dead six days later with injuries from which death resulted from brain haemorrhage due to injury with a blunt instrument. Three grounds of appeal attacked the doctor's evidence of cause of death, given after he refreshed his memory from a copy of his lost report and photographs. The court held the oral evidence admissible: only the document itself was inadmissible, not memory-based oral testimony. The court then considered the three additional prosecution witnesses called to disprove the appellant's alibi. It held their notices under section 301 of the Criminal Procedure Code were sketchy and non-compliant, affirmed the passage from Haining v Republic on the required content and timing of such notices, and disregarded their evidence. Even without that evidence, the court found the conviction sound: three child witnesses who knew the appellant previously recognised him abducting the deceased, the appellant effectively confirmed their recognition at the identification parades, the alibi raised by the appellant was properly investigated and the trial judge was justified in rejecting the testimony of the three army officers who supported it. The court concluded the proved facts were incompatible with innocence and affirmed the conviction. The judgment is a single judgment of the whole court and binds lower courts on section 301 notice requirements and on the treatment of memory-refreshing from inadmissible documents.

Key legal issues

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01

Admissibility of oral evidence following reference to an inadmissible document

Holding

The oral evidence of the doctor was admissible; only the copy of the report was inadmissible

Reasoning

The doctor gave evidence from memory and looked at photographs which were admissible. The copy report was inadmissible, but oral testimony derived from memory does not taint by reference to an inadmissible document. The first three grounds of appeal therefore failed.

p. 1
02

Compliance with section 301 of the Criminal Procedure Code on notices of additional evidence

Holding

All three notices were defective and the evidence of the three additional witnesses was disregarded

Reasoning

Section 301(2) requires the notice to state the witness's name, address and the substance of his evidence. The notices were sketchy and would not enable the defence to prepare rebuttal evidence. Following Haining v Republic, the notice should approximate a deposition. The judge erred in holding there had been compliance.

p. 3
03

Sufficiency of identification/recognition evidence of child witnesses

Holding

Recognition by three children who knew the appellant was reliable; two gave sworn evidence not requiring corroboration and the third was corroborated

Reasoning

The appellant himself confirmed at the identification parades that the children knew him. Children can make good witnesses. The unsworn evidence of the third child was corroborated by the other two and by the appellant's own remarks at the parades.

p. 4
04

The alibi and the duty to investigate it

Holding

Once an alibi is raised early, the police must investigate it; here the alibi was disproved and the discrepancies among the army officers justified rejection

Reasoning

The appellant raised the alibi on September 13, making it the police duty to investigate. The trial judge found discrepancies among the three army officers, disbelieved their demeanour and held the alibi untrue; the Court of Appeal saw no basis to interfere.

p. 2

Legal principles established

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  • Oral evidence does not become inadmissible merely because the witness refreshed memory from an inadmissible document
  • A notice of additional evidence under section 301 must disclose the substance of the witness's evidence with sufficient particularity to enable the defence to prepare
  • Inadequate notices under section 301 will render the additional evidence inadmissible and it may be disregarded on appeal

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The conviction for murder and the sentence imposed by the High Court are upheld
On appeal from
High Court at Nairobi
Jurisdiction invoked
First appellate/criminal appeal to the Court of Appeal under the Criminal Procedure Code (appeal against conviction for murder)

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, "Kijiba v Republic [1981] KECA 16 (KLR)", Case Analysis (1981). Criminal Appeal No. 80 of 1980. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1981/16/eng@1981-11-20

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