Bernard Reuta Masake v Republic [2019] KECA 412 (KLR)
The bottom line
#Kenya's Court of Appeal threw out a confession taken without a third party present, but upheld a manslaughter conviction resting on strong circumstantial evidence.
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 appellant's confession was admissible under Section 25A(1) of the Evidence Act given the absence of a third party of his choice
- 2.Whether the confession offended Section 33 of the Evidence Act because Chief Inspector Ali Ndiema was not called to testify
- 3.Whether the absence of a post mortem report proving the cause of death rendered the conviction unsafe
- 4.Whether the learned judge failed to properly re-analyse and re-evaluate the evidence on record
- 5.Whether this Court has jurisdiction to interfere with the sentence of 40 years' imprisonment imposed by the High Court
Key legal issues
#Admissibility of a confession recorded in the absence of a third party under Section 25A(1) of the Evidence Act
The confession was inadmissible because no third party of the appellant's choice was present when it was recorded, even though it was taken by a police officer other than the investigating officer of sufficient rank.
The court accepted that the confession was recorded by Chief Inspector Ali Ndiema at the request of the investigating officer, satisfying the rank and non-investigating-officer requirements. However, Section 25A(1) also requires a third party of the accused's choice to be present. Since no third party was present, the confession failed the statutory test and had to be discounted, despite the trial court having admitted it.
Whether a conviction can rest on circumstantial evidence despite exclusion of the confession
Yes. The conviction was safe because independent corroborative circumstantial evidence - the handwriting expert's evidence on the note, the recovery of the deceased's shoes from the pit latrine at the appellant's instance, and his conduct when confronted with the handwriting report - irresistibly pointed to guilt.
Applying the Koske and Teper tests for circumstantial evidence, the court found the inculpatory facts incompatible with innocence. The handwriting expert matched the roadside note to the appellant; the shoes were recovered from a pit latrine the appellant identified; and the appellant's visible reaction when shown the expert's report was telling. These matters survived the exclusion of the confession.
Whether the absence of a post mortem report proving cause of death is fatal to a homicide conviction
No. The absence of a post mortem report did not dent the prosecution case; the fact and cause of death may be proved by other evidence, including circumstantial evidence.
Following Ndungu v Republic, medical evidence on cause of death is vital unless the cause is too obvious, but comparative authority (Republic v Cheya, Mathias Bundala, Seif Selemani) establishes that death and its cause can be established otherwise than by medical evidence. Lay evidence of assault followed by death, without a novus actus interveniens, suffices. Here the remains, clothes and letter locating the body established the fact of death.
Whether the first appellate judge failed to re-evaluate the evidence
The judge properly re-evaluated the evidence, identifying the salient corroborative and circumstantial evidence rather than merely reproducing witness testimony.
The court found the judge did more than rehash the testimony: he considered the case as one resting on circumstantial evidence and the alleged confession, re-evaluated the evidence of PW5 and PW12 as corroborative, and gave weight to the handwriting evidence and the recovery of the shoes. Discrepancies in the handwriting expert's evidence were minor; expert evidence can only be controverted by other expert evidence, which the appellant did not adduce.
Jurisdiction over sentence on second appeal
The Court of Appeal has no jurisdiction to review the 40-year term because severity of sentence is a matter of fact under Section 361(1)(a) of the Criminal Procedure Code, and the sentence was not enhanced by the High Court.
Section 361(1)(a) and (b) confines second appeals to matters of law and bars appeals against sentence except where the High Court enhanced the sentence or the subordinate court lacked power to impose it. The High Court reduced, not enhanced, the life sentence. Resentencing does not arise where mitigation was already taken into account.
Legal principles established
#- A confession recorded without a third party of the accused person's choice present, as required by Section 25A(1) of the Evidence Act, is inadmissible notwithstanding that it was taken by an officer other than the investigating officer.
- The fact of death and its cause may be established without medical or post mortem evidence; homicide can be satisfactorily proved without first establishing the cause of death.
- On a second appeal, the Court of Appeal has no jurisdiction to review the severity of a sentence not enhanced by the High Court, as severity of sentence is a matter of fact under Section 361 of the Criminal Procedure Code.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The conviction for manslaughter and the sentence of 40 years' imprisonment imposed by the High Court are upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisii
- Kisii H C Cr. Appeal No. 119 of 2011
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal confined to matters of law)
Relief refused
#Quashing of the conviction for manslaughter
Even excluding the inadmissible confession, sufficient corroborative circumstantial evidence pointed to the appellant's guilt
Review of the 40-year sentence
Under Section 361(1)(a) and (b) of the Criminal Procedure Code, severity of sentence is a matter of fact on second appeal and the court had no jurisdiction to review it
Costs
No order as to costs is 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.
However, there was no third party present during the recording of the confession. That omission alone is sufficient to discount the confession.
In our considered view, even if the confession was discounted, there are other corroborative evidence that points to the guilt of the appellant.
It is not the requirement of the law that the cause of death must be established in every murder case. It is now established law that homicide can be satisfactorily proved without first establishing the cause of death.
The upshot is that this appeal has no merit and is hereby dismissed.
Issues in the judgment
#The judgment records that the confession was given to PW10 and recorded by CIP Ali Ndiema, but earlier names both Thoya and Ndiema inconsistently regarding who took the confession; the two courts below appear to differ on who recorded it.
The name of the doctor who prepared the post mortem report is rendered inconsistently in the judgment (Gachau, Kachao, Kacaho).
No costs order appears in the judgment despite the appeal being contested.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bernard Reuta Masake v Republic [2019] KECA 412 (KLR)", Case Analysis (2019). Criminal Appeal No. 26 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/412/eng@2019-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.