Janet Karamana Gituma & 5 others v Republic [2015] KECA 3 (KLR)
The bottom line
#Kenya's Court of Appeal freed three of six murder appellants, confirmed three convictions, and ruled the only lawful sentence for murder is death.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.What caused the death of the deceased
- 2.Whether the unlawful acts of the night of October 2009 caused the death of the deceased
- 3.Whether each of the appellants was responsible for the unlawful actions that caused the death of the deceased
- 4.Whether the convictions of each appellant, founded on circumstantial evidence, were safe
- 5.Whether the sentences of 30 years imprisonment imposed by the trial court were lawful
Key legal issues
#Causation of death - whether the attack caused the deceased's death
The court found the death was caused by appendicitis (peritonitis from a ruptured appendix), and that the severe trauma of the attack directly contributed to the appendicitis; the deceased's managed diabetic condition was irrelevant.
The post mortem attributed death to peritonitis due to rupture of the appendix. Dr Muiruri testified a rupture could be caused by physical trauma or infection. Given the severe trauma inflicted during the attack, the court found the attack directly contributed to the appendicitis leading to death, and the well-managed diabetes did not affect causation.
Circumstantial evidence and the 1st appellant's participation
The circumstantial evidence pointed irresistibly to the 1st appellant leading the attackers to her house, acting in concert to maim the deceased, and aiding their escape; her conviction was safe.
The court noted her suspicious conduct: refusing a lift, walking home accompanied by attackers, persuading the captor not to undress or shoot the hostages, being told the job was finished, failing to raise the alarm at the gate, and driving to Thika before reporting two hours later. The trial judge's adverse credibility finding under section 119 of the Evidence Act supported the inference of her complicity.
The 2nd appellant's conviction on suspicious gate register entries
The suspicious entries were not sufficient to link the 2nd appellant to the attack; the trial court erred in shifting the burden of proof to him. His conviction was quashed.
Although the entry for vehicle KBH 657J was fraudulently made, there was no evidence the vehicle ferried the robbers or aided the attack. The burden of proving guilt rested on the prosecution, and the trial court wrongly required the 2nd appellant to explain away the suspicious entries. His subsequent conduct in helping the victim did not point to guilt.
Doctrine of recent possession - 3rd appellant
The 3rd appellant was squarely caught by the doctrine of recent possession; his mere denial without a plausible explanation of possession of the recently stolen Nokia 1208 could not absolve him. Conviction confirmed.
The chain of possession from the 3rd appellant to Virginia and then to Mutinda was unbroken. Once possession of recently stolen property was established, the evidential burden shifted to him under section 111(1) of the Evidence Act to give a plausible explanation, which he failed to do.
4th and 6th appellants' convictions
There was no evidence linking the 4th appellant to the crime; the only evidence was the unreliable word of the 3rd appellant. Once the 5th appellant's claim of getting the phone from the 6th appellant was rejected, no evidence tied the 6th appellant to the crime. Both convictions were unsafe.
The phone recovered was a Nokia 1208, not the Nokia 1200 the 3rd appellant claimed to have been given by the 4th appellant, so the 4th appellant's conviction based on the stolen phone was unsafe. The 5th appellant could not have procured the phone from the 6th appellant at 11:00 am on the day of the incident, leaving no evidence against the 6th appellant.
5th appellant's conviction on the Nokia 2630
Direct evidence placed the 5th appellant in possession of the phone the day after the incident; his version of acquiring it from the 6th appellant was rejected. Conviction confirmed.
Possession of the phone so soon after the 1st appellant lost it placed the 5th appellant at the scene; the only logical explanation was his involvement in the attack and the hurried sale of the phone to Lawrence the next day.
Lawfulness of the 30-year sentences
The sentences of 30 years imprisonment for murder were unlawful; the lawful sentence under section 204 of the Penal Code is death.
Section 204 of the Penal Code mandates the death sentence for murder, a position confirmed in Joseph Njuguna Mwaura & 2 others v Republic, and Article 26(3) of the Constitution permits deprivation of life to the extent authorized by written law. The court set aside the 30-year terms and imposed the death sentence on the 1st, 3rd and 5th appellants.
Legal principles established
#- A first appellate court must re-evaluate and re-examine the evidence and make its own conclusions, making allowance for the trial court's advantage of seeing and hearing the witnesses.
- Circumstantial evidence may sustain a conviction only where the inculpatory facts are incompatible with innocence and incapable of explanation on any other reasonable hypothesis than guilt.
- The doctrine of recent possession requires positive proof that the property was found with the suspect, that it was stolen from the complainant, and that it was recently stolen.
- Where an accused is found in possession of recently stolen property, the evidential burden shifts to him to give a plausible explanation of his possession, pursuant to section 111(1) of the Evidence Act.
- Murder requires proof of the death of the deceased and its cause, that the accused committed the unlawful act causing death, and malice aforethought.
- The lawful sentence for murder is death as prescribed by section 204 of the Penal Code.
Court orders
#- 1.Confirmation of the convictions of Janet Karamana Gituma (1st appellant), Clement Munyao (3rd appellant) and Anthony Mati (5th appellant)
- 2.Allowance of the appeals of the 2nd, 4th and 6th appellants; their convictions set aside, sentences quashed and they were ordered to be set at liberty unless otherwise lawfully held
- 3.Setting aside of the 30-year imprisonment sentences imposed on the 1st, 3rd and 5th appellants and substitution of the lawful sentence of death
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.Cr. Case 15 of 2010
- Jurisdiction invoked
- First appeal to the Court of Appeal against conviction and sentence on a murder charge (Criminal Appeal from the High Court)
Relief refused
#Appeals of the 1st, 3rd and 5th appellants against conviction
Their convictions were found to be safe; the circumstantial evidence linked them irresistibly to the crime
Costs
No costs order was made in the judgment; the judgment ends with 'It is so ordered.'
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 the event, we allow their appeals and set aside their convictions, quash their sentences and direct that they be set at liberty unless they be otherwise lawfully held.
As the sentences imposed by the trial court were unlawful, we hereby set them aside and in their place mete out the lawful sentence, and order that Janet Karamana Gituma (the 1st appellant), Clement Munyao (the 3rd appellant) and Anthony Mati (the 5th appellant) shall suffer death as by law prescribed.
In order to justify on circumstantial evidence 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 possession must be positively prove, that is there must be positive proof, first; that the property was found with the suspect, secondly; that the property was stolen from the complainant, and lastly; the property was recently stolen from the complainant
This being a first appeal, it is our duty to re-evaluate and re-examine the evidence and make our own conclusions only bearing in mind the fact that we have not had the opportunity of seeing and hearing the witnesses and give allowance for that.
Issues in the judgment
#Internal inconsistency in the vehicle registration number of the 1st appellant's car - recorded as both KAX 755 G and KAX 755 J in the same passages.
The judgment states the deceased died on 2nd March 2010, six months after the attack of 23rd October 2009, but six months after the attack would be April 2010; the dates do not align.
The 3rd appellant's account of when he was sent to search for a worker is internally inconsistent, dated 30th October 2011, after the trial and conviction timeline, likely a typographical error for 2009.
Counsel for the State is recorded as Mr Omirera in the submissions, and the trial court's note quotes section 119 of the Evidence Act; the judgment also mis-describes the stolen phone at one point as Nokia 2630 and elsewhere as Nokia 2360, an internal inconsistency in the model numbers.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Janet Karamana Gituma & 5 others v Republic [2015] KECA 3 (KLR)", Case Analysis (2015). Criminal Appeal No 88 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/3/eng@2015-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.