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Court of AppealDismissedCriminal Appeal 265 of 2006

JULIUS KARISA CHARO v REPUBLIC [2007] KECA 216 (KLR)

Court of Appeal of Kenya
26 January 2007
2,105 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld a murder conviction built entirely on circumstantial evidence, confirming killers who leave no eyewitnesses can still be convicted.

What this practically means

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Executive summary

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The Court of Appeal at Malindi (Tunoi, Waki and Deverell, JJ.A) dismissed in its entirety the appeal of Julius Karisa Charo against his conviction for the murder of Peters Peter Karel Johan, a Belgian tourist, and the death sentence imposed by the High Court at Malindi (Ouko, J.) on 6th February 2006. The prosecution case was wholly circumstantial: the deceased, a friend of the appellant, visited him on 12th June 2001; the two were entertained at Jogolos Club and left together at about 8.30 p.m., after which the deceased vanished. About a month later the deceased's passport, Belgian identity card, driving licence and air ticket were found buried in a room of the appellant's house, and a body was exhumed from a shallow grave about 100 metres away. A post-mortem report, tendered under sections 33 and 77 of the Evidence Act, attributed death to severe multiple head injuries from a sharp object. The trial had been protracted, spanning several judges over about four years, a circumstance the court described as most unsatisfactory while praising Ouko, J.'s diligence. On appeal, Mr Mulongo argued that the death was not proved beyond reasonable doubt, that the skeletal remains were not identified as the deceased's, that the circumstantial facts admitted innocent explanations, and that motive was not proved. The court reiterated its first-appeal duty to re-evaluate the evidence and applied the circumstantial-evidence test drawn from Simoni Musoke, Teper, Kipkering arap Koske and Mkendeshwo: the inculpatory facts must be incompatible with innocence and incapable of explanation on any other hypothesis. It found the appellant's last-seen presence with the deceased, his feigned ignorance, and the burial of the deceased's documents in his house irresistible, holding that Joseph Karanja did not exist except in the mind of the appellant. It held the remains matched the deceased's passport particulars, and that under section 9 of the Penal Code unproved motive does not vitiate a conviction. The conviction under section 203 read with section 204 of the Penal Code was affirmed; the appeal was dismissed with no order as to costs.

Questions the Court framed

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

  1. 1.Whether the body exhumed from the shallow grave was that of the deceased, Peters Peter Karel Johan, given the contention that the post-mortem report was inconclusive.
  2. 2.Whether the circumstantial evidence on which the conviction rested irresistibly pointed to the appellant's guilt and was incapable of explanation on any other hypothesis, as the appellant submitted the instances cited were capable of innocent explanation.
  3. 3.Whether the prosecution's failure to prove motive for the killing vitiated the conviction.
  4. 4.Whether the appellant's conviction for murder was based on sound and credible evidence.

Key legal issues

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01

What is the test for founding a conviction exclusively on circumstantial evidence, and was it satisfied on the facts?

Holding

The inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of guilt, and there must be no co-existing circumstances weakening the inference; the court held the evidence met that test.

Reasoning

The court adopted the tests stated in Simoni Musoke and Teper, endorsed by Kipkering arap Koske and Mkendeshwo, and re-evaluated the evidence as a first appellate court. The appellant and the deceased left Jogolos Club together at 8.30 p.m.; when relatives later found the appellant home alone he feigned ignorance of the deceased's whereabouts; and the deceased's passport, Belgian identity card, driving licence and air ticket were buried in a room he occupied, which no stranger could have done without his knowledge. The court further found the person called Joseph Karanja did not exist except in the appellant's mind, and concluded the evidence excluded any innocent hypothesis.

p. 4
02

Whether the exhumed skeletal remains were proved to be those of the deceased.

Holding

Yes - given the circumstances of the case there could be no doubt that the exhumed body was that of Peters Peter Karel Johan, the deceased.

Reasoning

The pathologist deduced from remnants of soft tissue on the scalp, neck and hair that the remains were those of a Caucasian, the race to which the deceased belonged; from the long bones, skull dimensions and weight, that they were of a male aged between 43 and 48 years; and he estimated the time of death at four to six weeks. These characteristics matched the particulars in the deceased's passport, and the estimated time of death fell within the period the deceased was at Mkunguni Village, answering the complaint that the post-mortem report was inconclusive.

p. 3
03

Whether the prosecution's failure to prove motive vitiated the murder conviction.

Holding

No - failure to prove motive does not, per se, vitiate the conviction.

Reasoning

Counsel for the appellant submitted that the prosecution did not prove motive for the killing. The court held it trite that such failure does not, per se, vitiate the conviction, because by dint of the provisions of section 9 of the Penal Code, motive is not one of the elements necessary to prove in a criminal offence. The conviction therefore rested on the inculpatory circumstantial facts rather than on any demonstrated reason for the killing.

p. 3
04

What is the duty of a first appellate court in a criminal appeal?

Holding

It must re-evaluate the evidence and draw its own conclusions, without ignoring the findings and conclusions of the trial court.

Reasoning

Framing the matter as a first appeal from the High Court's original jurisdiction, the court stated its duty to re-evaluate the evidence and draw its own conclusions while giving due weight to the trial court's findings. It then independently assessed the identification of the remains, the last-seen evidence and the burial of the deceased's personal effects, before endorsing the trial judge's conclusion that the circumstances pointed irresistibly to the appellant's participation in the murder. The court also noted, though without deciding a separate point, that the four-year trial had been commenced in a most unsatisfactory manner.

p. 2

Legal principles established

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  • A conviction founded exclusively on circumstantial evidence can stand only where the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of guilt.
  • Before drawing an inference of guilt from circumstantial evidence, the court must be sure there are no other co-existing circumstances which would weaken or destroy the inference.
  • Failure to prove motive does not, per se, vitiate a criminal conviction, motive not being an element necessary to prove under section 9 of the Penal Code.
  • On a first appeal, the appellate court is under a duty to re-evaluate the evidence and draw its own conclusions, without ignoring the findings and conclusions of the trial court.

Court orders

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  1. 1.The appellant's appeal fails and is dismissed in its entirety, the conviction for murder and the sentence of death imposed by the High Court thereby standing.

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 Malindi
H.C. CR.C. No. 7 of 2006
Jurisdiction invoked
First appeal to the Court of Appeal against a conviction and sentence imposed by the High Court in the exercise of its original criminal jurisdiction; the judgment does not cite the enabling provision, recording only that 'this being a first appeal, it is our duty to re-evaluate the evidence'

Relief refused

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Quashing of the conviction for murder and setting aside of the death sentence

The court found the conviction was based on sound and credible evidence and that the circumstantial evidence irresistibly pointed to the appellant while excluding any co-existing circumstances.

p. 4

Submission that the death of the deceased was not proved beyond reasonable doubt because the post-mortem report was inconclusive and the skeletal remains were not shown to be those of the deceased

The pathologist's findings from the remnants of soft tissue and bones (Caucasian race, male aged between 43 and 48 years, death four to six weeks earlier) matched the deceased's passport particulars and the period he was at Mkunguni Village.

p. 3

Submission that the instances cited as constituting circumstantial evidence were capable of innocent explanation, the deceased not having spent time with the appellant alone

The appellant was last seen leaving Jogolos Club with the deceased, later feigned ignorance of the deceased's whereabouts, and the deceased's passport, Belgian identity card, driving licence and air ticket were buried in a room he occupied, which no stranger could have done without his knowledge.

p. 4

Submission that the prosecution failed to prove motive for the killing

By dint of section 9 of the Penal Code, motive is not one of the elements necessary to prove in a criminal offence.

p. 3

Costs

No costs order was made. The judgment ends with the dismissal of the appeal and contains no order as to costs.

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, we come to the inevitable conclusion that the appellant’s conviction for the offence of murder contrary to section 203 as read with section 204 of the Penal Code was based on sound and credible evidence. His appeal, therefore fails and is dismissed in its entirety. It is so ordered.
p. 4Final orders - conviction for murder affirmed and appeal dismissed in its entirety
To found a conviction exclusively upon circumstantial evidence the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of guilt.
p. 2Test for conviction founded exclusively on circumstantial evidence
It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances, which would weaken or destroy the inference.
p. 2Exclusion of co-existing circumstances weakening the inference of guilt
It is trite that the failure to prove motive does not, per se, vitiate the appellant’s conviction as by dint of the provisions of section 9 of the Penal Code, motive is not one of the elements necessary to prove in a criminal offence.
p. 3Motive is not an element necessary to prove - section 9, Penal Code
We reiterate that this being a first appeal, it is our duty to re-evaluate the evidence, draw our own conclusions, without of course ignoring the findings and conclusions of the trial court.
p. 2Duty of a first appellate court
There was overwhelming evidence that the deceased met his demise in the hands of the appellant, alone or with the aid of others only the appellant would know.
p. 3Application of the circumstantial-evidence test to the facts
We would agree with the learned trial Judge that there cannot be any doubt, given the circumstances of this case, that the body that was exhumed was that of Peters Peter Karel Johan, the deceased.
p. 3Identity of the exhumed remains with the deceased

Issues in the judgment

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minor

The deceased's name is inconsistently rendered within the judgment: the information filed by the Attorney General charges the murder of 'Peters Peter Karel Johan', while the recital of counsel's submissions refers to 'Peter Peters Karel Johan'.

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, "JULIUS KARISA CHARO v REPUBLIC [2007] KECA 216 (KLR)", Case Analysis (2007). Criminal Appeal 265 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/216/eng@2007-01-26

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