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Court of AppealDismissedCriminal Appeal No. 219 of 2004

Muema Makali v Republic [2011] KECA 125 (KLR)

Court of Appeal of Kenya
7 October 2011
2,568 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 upheld a murder conviction and death sentence, finding intoxication by bhang was no defence without real evidence.

What this practically means

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Executive summary

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The appellant, a domestic worker employed by Raphel Nzioki, was convicted by the High Court at Machakos (Nambuye, J.) on 16th December 2003 of three counts of murder contrary to Sections 203 and 204 of the Penal Code and sentenced to death, for the killing by blunt head trauma and burning of three young children left in his care on 19th August 1999. Before the Court of Appeal (Bosire, Waki and Visram, JJ.A.) counsel advanced three arguments: intoxication by bhang and steladone warranting substitution of manslaughter under Sections 13(1) and (4) of the Penal Code; recording of the confessions in a language the appellant did not understand; and involuntariness of the confessions contrary to Section 77(7) of the former Constitution. The State, through Mr. O'Mirera, maintained that the evidence was overwhelming and the confessions properly obtained and corroborated. Applying the Okeno principle requiring fresh evaluation of the evidence on a first appeal, the court found overwhelming credible evidence that the appellant alone was with the children in the burning house, was seen escaping through a window, and had admitted the killings. It held there was no evidence of intoxication - the appellant's conduct showed presence of mind - and that the admissibility of the repudiated statements had been fully canvassed in a trial within a trial, their material particulars being independently corroborated. The appeal was dismissed in its entirety and the conviction and death sentence upheld.

Questions the Court framed

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

  1. 1.Whether the defence of intoxication (bhang and steladone) was available on the evidence so as to reduce murder to manslaughter
  2. 2.Whether the confession in the charge and cautionary statement and the statement under inquiry was recorded in a language the appellant did not understand and was therefore inadmissible
  3. 3.Whether the confession was involuntary, contrary to the protection against compulsion in Section 77(7) of the former Constitution
  4. 4.Whether the High Court's conviction and sentence of death should be upheld on a fresh evaluation of the evidence as a first appeal

Key legal issues

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01

Defence of intoxication reducing murder to manslaughter

Holding

Rejected; there was no evidence of intoxication at the material time and the defence was never raised at trial

Reasoning

The appellant relied on Section 13(1) and (4) of the Penal Code, but the court found no evidence of intoxication on the record. His conduct - sending the youngest child with money to buy bread and sodas, sharing the food with the children, and later jumping from the window - showed presence of mind inconsistent with a claim that he was unconscious of his actions.

p. 3
02

Admissibility and weight of repudiated confessions (charge and cautionary statement and statement under inquiry)

Holding

Confessions admitted after a trial within a trial were properly acted upon, being corroborated in material particulars by independent evidence

Reasoning

The voluntariness and language objections had been canvassed in a trial within a trial. The High Court applied the settled principles: a repudiated statement requires corroboration in material particulars, or may stand alone where it is so detailed that it could only have come from a participant. Here the purchases at the kiosk, the fire, the appellant's flight and recovery in the bush were all independently confirmed.

p. 4
03

Duty of the appellate court on a first appeal

Holding

The Court of Appeal re-evaluated the evidence afresh and agreed with the High Court's conclusions, upholding conviction and sentence

Reasoning

Guided by Okeno v. R, the court revisited the evidence, evaluated it and formed its own conclusion while making allowance for the trial court's advantage of seeing and hearing witnesses. It found overwhelming credible evidence that the appellant was alone with the children in the burning house, was seen escaping, and had admitted the killings.

p. 5

Legal principles established

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  • On a first appeal, the appellate court must revisit the evidence afresh, analyse and evaluate it and reach its own conclusion, while allowing for the fact that the trial court saw and heard the witnesses
  • A repudiated extrajudicial statement must be corroborated in material particulars by other independent evidence before it can support a conviction, or, if detailed enough to be demonstrably true from a participant, may be acted on without corroboration where the court is satisfied it is safe to do so
  • The defence of intoxication under Sections 13(1) and (4) of the Penal Code requires evidence that the accused was intoxicated at the time of the offence; conduct showing presence of mind negatives it

Court orders

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  1. 1.Appeal dismissed in its entirety
  2. 2.Conviction for murder and sentence of death upheld

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 Machakos
H.C.CR.C. No. 19 of 2000
Jurisdiction invoked
First appeal to the Court of Appeal against conviction and sentence under the Penal Code murder provisions (Criminal Procedure framework for first appeals)

Relief refused

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Substitution of a conviction for manslaughter on grounds of intoxication

No evidence of intoxication on the record; the defence was not raised at trial and the appellant's conduct showed presence of mind

p. 3

Exclusion of the confessions as involuntary or taken in a language the appellant did not understand

Admissibility was fully canvassed in a trial within a trial and the confessions were corroborated in material particulars

p. 3

Costs

No costs order made; appeal against the State in a criminal matter

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.

The law enjoins us to revisit the evidence afresh and analyse it, evaluate it, and come to our own conclusion but always bearing in mind that the trial court saw and heard the witnesses and giving allowance for that (Okeno v. R [1972] E.A. 32.
p. 3Standard of review on first appeal
Once repudiated they have to be corroborated in material particulars, by some other independent evidence before it can be acted upon by the court to support a conviction.
p. 4Repudiated confessions and corroboration
The facts clearly show that despite the appellant's claim that he had smoked bhang, he had the presence of mind to send Fidelis, the youngest child, to buy bread and sodas, giving Fidelis Shs.500/= for the same, and later sharing the food with the children.
p. 3Rejection of the intoxication defence
Accordingly, this appeal is dismissed in its entirety. Orders accordingly.
p. 5Disposition - final orders

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, "Muema Makali v Republic [2011] KECA 125 (KLR)", Case Analysis (2011). Criminal Appeal No. 219 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/125/eng@2011-10-07

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