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Court of AppealDismissedCriminal Appeal No. 287 of 2010

Joseph Chemasweti Lomulei v Republic [2011] KECA 331 (KLR)

Court of Appeal of Kenya
25 March 2011
2,213 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 a person found with a murder victim's property and no credible explanation can be convicted on circumstantial evidence alone.

What this practically means

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Executive summary

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The appellant was convicted of the murder of Patrick Juma, a bicycle taxi operator, and sentenced to death by the High Court at Kitale. The prosecution case rested wholly on circumstantial evidence: the deceased was last seen alive riding off with the appellant as pillion passenger; his body was later found in a maize plantation with multiple cut wounds; and the appellant was arrested three days later in possession of the deceased's distinctive bicycle. On this first appeal, counsel for the appellant abandoned all but one ground of the memorandum of appeal and added a ground complaining of reliance on circumstantial evidence and on allegedly contradictory evidence. The Court of Appeal (Omolo, Bosire and Onyango Otieno, JJ.A.), in a single judgment of the court, restated the test for circumstantial evidence from R v Kipkering Arap Koske, supplemented by Teper v Reginam, and confirmed that the burden of proof remains throughout on the prosecution. Re-evaluating the evidence as required on a first appeal, the Court found the appellant's explanation for possessing the bicycle - an unnamed seller and an unproduced sale agreement - not believable, and held that a rebuttable presumption under section 119 of the Evidence Act arose, which the appellant failed to rebut. The Court further held, going beyond the trial judge, that the severe injuries evidenced pre-meditation and hence malice aforethought. The Court affirmed the conviction and sentence and dismissed the appeal in its entirety, with no separate costs order.

Questions the Court framed

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

  1. 1.Whether the circumstantial evidence established the appellant's guilt beyond reasonable doubt
  2. 2.Whether the trial judge erred in convicting on the basis of contradictory evidence
  3. 3.Whether the appellant's explanation for possession of the deceased's bicycle was reasonable
  4. 4.Whether the killing was with malice aforethought

Key legal issues

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01

Sufficiency of circumstantial evidence

Holding

The chain of circumstances - appellant last seen with the deceased, unexplained failure to account for their separation, and possession of the deceased's bicycle days after the death - established guilt beyond reasonable doubt

Reasoning

The Court re-evaluated the evidence as a first appellate court. PW4 and PW6 placed the appellant with the deceased shortly before his disappearance; the appellant gave no explanation of how they parted company; and he was found with the deceased's distinctive bicycle three days later. His account of buying it was implausible - no named seller, no produced agreement, and a bicycle does not quickly change hands. A rebuttable presumption under section 119 of the Evidence Act arose and was not rebutted.

p. 4
02

Malice aforethought

Holding

The multiple serious cut wounds, one penetrating the chest and puncturing a lung, evidenced a pre-meditated killing with malice aforethought

Reasoning

The trial judge did not expressly consider malice aforethought. The Court filled the gap itself, holding that the nature and severity of the injuries - several serious cut wounds, one penetrating the chest and puncturing the lung - clearly showed pre-meditation and therefore satisfied the mens rea for murder.

p. 4
03

Duty of first appellate court

Holding

A first appeal is by right and the appellate court must re-evaluate the evidence and draw its own conclusions without overlooking the trial judge's conclusions

Reasoning

Relying on Okeno v Republic, the Court restated the settled principle that on a first appeal it must reconsider the evidence afresh and reach its own conclusions, while bearing in mind that it neither saw nor heard the witnesses and therefore cannot assess credibility as the trial court did.

p. 3

Legal principles established

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  • A first appellate court must re-evaluate the evidence and draw its own conclusions, while making allowance for the fact that it did not see or hear the witnesses
  • The test for conviction on wholly circumstantial evidence is that the inculpatory facts must be incompatible with innocence and incapable of explanation on any other reasonable hypothesis than guilt, with no co-existing circumstances weakening the inference, and the burden always remains on the prosecution
  • An accused may bear an evidential burden to explain facts especially within his own knowledge, and a rebuttable presumption may arise under section 119 of the Evidence Act from unexplained possession of the deceased's property

Court orders

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  1. 1.Conviction and sentence affirmed
  2. 2.Appeal dismissed in its entirety

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

Wrote the judgment

On appeal from
High Court of Kenya at Kitale
H.C.CR.C. No. 42 of 2003
Jurisdiction invoked
First appellate jurisdiction over a conviction and sentence of the High Court (murder trial)

Relief refused

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Allowance of the appeal against conviction and sentence

The Court found the circumstantial evidence established guilt and the explanation for possession of the bicycle was not believable; the sentence of death is the only sentence provided for murder

p. 4

Costs

No costs order stated 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 order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt." The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden which never shifts to the party accused.
p. 2Burden of proof in circumstantial evidence cases
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. 2Teper v Reginam additional test adopted
Having come to the foregoing conclusion that the appellant’s explanation as to how he came by the deceased’s bicycle is not believable, a rebuttable presumption arises under section 119 of the Evidence Act, that the appellant killed the deceased. He did not rebut that presumption.
p. 4Evidential presumption from unexplained possession of deceased's property
That being so, we affirm the conviction and sentence and consequently dismiss the appellant’s appeal in its entirety. It is so ordered.
p. 4Final orders

Issues in the judgment

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minor

The judgment repeatedly states the relevant events and the appellant's employment as occurring in 2002, whereas the charge particulars and the rest of the narrative date the murder to 11th September 2003

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Joseph Chemasweti Lomulei v Republic [2011] KECA 331 (KLR)", Case Analysis (2011). Criminal Appeal No. 287 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/331/eng@2011-03-25

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