JOSEPH ERIC OWINO vs EUNICE ORARE WERE [1999] KECA 157 (KLR)
The bottom line
#Kenya's Court of Appeal quashed a manslaughter conviction because prosecutors failed to make the autopsy doctor available, leaving the cause of death unproven.
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 appellant was denied the right to be heard by the appeal in the superior court proceeding in his absence
- 2.Whether there was sufficient evidence in support of the conviction
- 3.Whether the prosecution's failure to call the doctor who performed the post mortem was fatal to the case, leaving the cause of death unclear
Key legal issues
#Right to be heard where appeal heard in appellant's absence
Ground failed; no injustice arose because counsel knew of the hearing and no attempt was made to attend.
The court accepted that an appellant must ordinarily be heard on appeal unless he waives attendance. However, on the facts, counsel was aware of the hearing and the appellant, being free on probation, made no attempt to attend. Since no injustice resulted from the hearing in his absence, the first ground of appeal could not succeed.
Scope of second appeal - sufficiency of evidence
Ground failed; sufficiency of evidence is a question of fact outside a second appeal.
The court reiterated that a second appeal is confined to points of law. Whether the evidence was sufficient to support the conviction is a matter of fact, and the first appellate court had already found the evidence of assault overwhelming. The ground therefore raised no point of law and failed.
Prosecution's duty regarding material witnesses not called
The prosecution must secure the presence of material witnesses, notably the autopsy doctor, so the defence may call them; failure here left the cause of death unclear and rendered the conviction unsafe.
The court held that in a criminal case the prosecution must take all reasonable steps to secure attendance of witnesses the defence would reasonably expect, especially the doctor in a homicide trial. Even where the prosecution does not intend to call such a witness, it must ensure presence in court unless absence is beyond its control. With State counsel conceding the cause of death was unclear, a reasonable doubt existed as to causation, and the benefit of that doubt accrued to the appellant, making the conviction unsafe.
Legal principles established
#- In a criminal case the prosecution must take all reasonable steps to secure the attendance of material witnesses whom the defence might reasonably expect to be present, including the doctor who performed the autopsy in a homicide trial.
- Where the prosecution does not intend to call a material witness, it must still ensure the witness is available in court for the defence to call if it wishes, the only exception being absence for reasons beyond the prosecution's control.
- On a second appeal the Court of Appeal may entertain only points of law; sufficiency of evidence is a matter of fact and does not lie on a second appeal.
- An appellant must be heard on appeal unless he indicates he does not wish to be present or heard; absence without such indication does not of itself invalidate the hearing absent injustice.
Court orders
#- 1.Appeal allowed
- 2.Conviction quashed
- 3.Probation order set aside
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kakamega
- Jurisdiction invoked
- Second appeal to the Court of Appeal on points of law only (Criminal Appeal jurisdiction; no specific provision quoted 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 a criminal case as a rule the prosecution must take all reasonable steps to secure the attendance of any of their witnesses whom the defence might reasonably expect to be present.
The only exception to this rule as to attendance of witnesses is if the witness is absent for reasons beyond the prosecution's control.
Consequently we allow the appeal, quash the conviction and set aside the probation order. Those shall be the orders of the Court.
Issues in the judgment
#The appeal number as printed ('Civil Appeal 172 of 89') appears incomplete or anomalous, given the High Court judgment was dated 13th November 1995.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JOSEPH ERIC OWINO vs EUNICE ORARE WERE [1999] KECA 157 (KLR)", Case Analysis (1999). Civil Appeal 172 of 89. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/157/eng@1999-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.