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Court of AppealDismissedCriminal Appeal No. 78 of 1997

Francis Kimtai Rono vs Republic [2000] KECA 278 (KLR)

Court of Appeal
3 November 2000
1,675 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that shooting someone at point-blank range presumes intent to kill, and defences raised too late in court will fail.

What this practically means

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Executive summary

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The appellant, a Police Sergeant, was convicted of murder contrary to section 203 as read with section 204 of the Penal Code and sentenced to the mandatory death sentence by Juma J of the High Court at Nairobi on 14 November 1997. On appeal to the Court of Appeal at Nairobi (Kwach, Bosire and O'Kubasu JJ.A), he condensed nine grounds into three: absence of malice aforethought, justification of the shooting, and conviction against the weight of evidence. The undisputed facts were that on the night of 2nd/3rd April 1995 the appellant entered Liban Bar in Eastleigh, where police officers were searching patrons following a robbery report, and without inquiry shot the deceased, also a police officer, twice at point-blank range while he knelt, having identified himself as a policeman. The court, conducting a full first-appeal re-evaluation, held that the appellant's conduct fell within section 206(b) of the Penal Code: firing a loaded gun twice at the deceased's chest and head showed knowledge that death or grievous harm would probably result. Point-blank shooting raised a rebuttable presumption of intent to kill, and under section 111 of the Evidence Act malice could be inferred from unexplained conduct. The appellant's claim that the deceased reached into his jacket pocket was rejected as an afterthought, never put to prosecution witnesses and contradicted by eyewitnesses. The appeal was dismissed in its entirety and the conviction and sentence affirmed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant killed the deceased with the necessary malice aforethought
  2. 2.Whether the shooting of the deceased was justified and therefore lawful
  3. 3.Whether the conviction was against the weight of the evidence

Key legal issues

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01

Whether malice aforethought was established

Holding

Malice aforethought was established under section 206(b) of the Penal Code; the appellant aimed a loaded gun at the deceased's chest and head and fired twice, knowing death or grievous harm would probably result.

Reasoning

The court applied section 206(b) of the Penal Code: knowledge that the act causing death will probably cause death or grievous harm suffices. The appellant cocked a loaded pistol and fired twice at the kneeling deceased's chest and head. His own cautionary statement showed he believed the bullets struck the chest or head. Point-blank shooting raised a rebuttable presumption of intent to kill, which his explanation failed to rebut.

p. 2
02

Whether the shooting was justified as self-defence

Holding

The claim that the deceased reached for his pocket was an afterthought contradicted by eyewitnesses and never put to prosecution witnesses; the shooting was unprovoked and unjustified.

Reasoning

The appellant's assertion that the deceased put his hand in his jacket pocket was not put to any prosecution witness, was absent from his cautionary statement, and was contradicted by eyewitness accounts including that of PW15 who had searched the deceased. Inspector Owuor's unchallenged evidence was that the circumstances did not warrant use of a firearm. The defence therefore raised no reasonable probability of absence of malice.

p. 3
03

Weight of the evidence against the appellant

Holding

The evidence was overwhelming and cogent; the trial judge and assessors were justified in convicting.

Reasoning

The court, exercising its first appellate duty, re-evaluated the evidence and found it overwhelming: the appellant ignored the presence of senior police officers, made no inquiry, and shot the kneeling deceased at point-blank range. The unchallenged testimony of Inspector Owuor that the circumstances did not warrant use of a firearm reinforced the conclusion that the conviction was sound.

p. 3

Legal principles established

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  • On a first appeal, the appellate court is obliged to reconsider and analyse all the evidence afresh, make its own findings, while bearing in mind that it did not see or hear the witnesses.
  • Shooting a person at point-blank range raises a rebuttable presumption of fact of intention to kill, and under section 111 of the Evidence Act a court may infer malice aforethought from unexplained conduct.
  • A defence raised for the first time on appeal, never put to prosecution witnesses, is an afterthought and does not raise a reasonable probability of absence of malice aforethought.

Court orders

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  1. 1.The appellant's appeal is dismissed in its entirety

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.CR.C. No. 76 of 1995
Jurisdiction invoked
First appellate jurisdiction over a High Court criminal conviction (Criminal Appeal No. 78 of 1997)

Relief refused

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Substitution of a conviction for manslaughter in place of murder

The court found the shooting unprovoked and unjustified and malice aforethought established beyond reasonable doubt

p. 3

Costs

No costs order was made in the judgment.

Quotable passages

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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 result the appellant's appeal has no merit and is therefore, dismissed in its entirety.
p. 3Disposition
where, as here, the appellant shot the deceased at point-blank range a rebuttable presumption of fact is raised that by doing so he intended to kill him.
p. 3Presumption of intent from point-blank shooting
We are obliged to consider and analyse all the evidence on record, make our own findings without overlooking the findings of the trial court and bearing in mind that unlike the trial court, we did not have the advantage of seeing and hearing the witnesses testify.
p. 2Duty of a first appellate court
We accordingly, hold that the appellant's reason for shooting the deceased was given as an afterthought and does not raise any reasonable probability of absence of malice aforethought.
p. 3Afterthought defence

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Francis Kimtai Rono vs Republic [2000] KECA 278 (KLR)", Case Analysis (2000). Criminal Appeal No. 78 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/278/eng@2000-11-03

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