Salim Tsofa Mkala v Republic [2018] KECA 237 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that joining a mob attack can make you guilty of murder, even if nobody saw you personally kill the victim.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the offence of murder was proved against the appellant beyond reasonable doubt, including whether the identification evidence was reliable
- 2.Whether the appellant was culpable for the deceased's death although there was no direct evidence that he personally assaulted or set the deceased ablaze (common intention under Section 21 of the Penal Code)
- 3.Whether the defence of provocation arising from an alleged belief that the deceased was a witch was available to the appellant
- 4.Whether the appellant's alibi was displaced
- 5.Whether the sentence of 25 years imprisonment was excessive
Key legal issues
#Elements of the offence of murder
The prosecution must prove the death of the deceased and its cause, that the accused committed the unlawful act causing death, and malice aforethought; all three were established against the appellant.
The court applied Section 203 of the Penal Code, citing Nyambura & Others v R, and found the three elements proved. Identification by recognition was positive, made in broad daylight by witnesses who knew the appellant, displacing his alibi. Malice aforethought was deduced from the heinous manner of the killing and the threats made against the deceased prior to his death.
Criminal culpability on the basis of common intention despite absence of direct evidence of the accused personally killing
The appellant's conduct in leading the crowd and accompanying it established a common intention to cause grievous harm, making him culpable for the death under Section 21 of the Penal Code even though no witness saw him assault the deceased.
Relying on Section 21 of the Penal Code and the authorities in Mabel Kavati, Rex v Tabula Yenka and Njoroge v R, the court held that common intention may be inferred from presence, actions and failure to dissociate. The appellant led the crowd to the deceased's compound and accompanied it to the attack on Kanze; the prior threats to the deceased fortified the inference. No express prior agreement was necessary.
Defence of provocation based on alleged witchcraft
The defence failed because it was not raised at trial and there was no evidence of circumstances directly affecting the appellant which he attributed to witchcraft.
The court invoked Thoya Kitsao v R, which summarised the requisites of the provocation defence where witchcraft is alleged. Mere repute of the deceased as a witch is insufficient; there must be evidence of circumstances negatively affecting the accused directly. The appellant tendered no such evidence and had not raised the defence before the trial court, so it carried no weight on appeal.
Identification by recognition versus mistaken identity and the alibi
The appellant's identification by recognition by three witnesses who knew him, in broad daylight, was positive and free from error and displaced his alibi.
Citing Anjononi & Others v R on the reliability of recognition evidence based on personal knowledge of the assailant, the court found the uncontroverted testimony of Alfred, Kanze and Patience established the appellant's presence in the crowd. The incident occurred in broad daylight, negating mistaken identity, and this evidence displaced the claim that he was loading sand at Timboni.
Legal principles established
#- On a first appeal, the Court of Appeal must re-evaluate the evidence exhaustively and draw its own conclusions, while appreciating it did not see the witnesses' demeanour.
- Common intention under Section 21 of the Penal Code need not be an express prior agreement; it may be inferred from presence, actions and omission to disassociate oneself from the assault.
- Belief in witchcraft alone, without evidence of circumstances negatively affecting the accused directly and attributed to witchcraft, is insufficient to establish the defence of provocation to murder.
Court orders
#- 1.The appeal is dismissed in its entirety, affirming the conviction for murder and the sentence of 25 years imprisonment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Malindi
- H.C.CR.C No. 25 of 2014
- Jurisdiction invoked
- First appeal to the Court of Appeal against conviction and sentence for murder under the Penal Code (Court of Appeal's appellate jurisdiction over High Court criminal appeals)
Relief refused
#Quashing of conviction and setting aside of sentence
The prosecution proved the elements of murder beyond reasonable doubt; identification by recognition was positive and the common intention was established
Defence of provocation
Not raised at trial and no evidence of circumstances directly affecting the appellant attributable to witchcraft
Reduction of the 25-year sentence
Taking into account Muruatetu on discretionary sentencing, 25 years was deemed reasonable
Costs
No costs order recorded in the judgment.
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 end, we find that the prosecution had established the aforementioned three elements against the appellant to secure his conviction for murder.
Accordingly, the appeal herein lacks merit and is hereby dismissed.
We equally see no reason to interfere with the sentence of 25 years imprisonment meted out to the appellant.
If several persons combine for an unlawful purpose and one of them in the prosecution of it kills a man, it is murder in all who are present whether they actually aided or abetted or not provided that the death was caused by the act of someone of the party in the course of his endeavours to effect the common object of the assembly.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Salim Tsofa Mkala v Republic [2018] KECA 237 (KLR)", Case Analysis (2018). Criminal Appeal No. 5 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/237/eng@2018-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.