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Court of AppealPartially AllowedCriminal Appeal No. 53 of 2017

L W W v Republic [2019] KECA 951 (KLR)

Court of Appeal of Kenya
6 March 2019
1,875 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 based on circumstantial evidence but replaced the mandatory death sentence with 20 years' imprisonment.

What this practically means

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Executive summary

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The Court of Appeal at Eldoret (Githinji, Okwengu and Mohammed, JJ.A.) disposed of a first appeal by L W W against his conviction for the murder of his one-and-a-half-year-old son and his death sentence. The child, handed into the appellant's custody on the evening of 23rd September 2008, was found dead by the roadside the next morning with neck and head injuries, a fractured cervical spine, and death caused by strangulation. The prosecution case was wholly circumstantial. Counsel for the appellant abandoned three of six grounds and argued that guilt was not proved beyond reasonable doubt, that motive and malice aforethought were not established, and that the defence was ignored. Applying its duty on a first appeal to re-evaluate the evidence, the Court found the trial judge's findings rested on credible evidence: several closely related witnesses confirmed the child was delivered personally into the appellant's custody, his account that he left the child in the house was disbelieved, and the circumstantial evidence irresistibly proved he strangled the child and dumped the body. The Court held motive need not be proved. The conviction was therefore affirmed. On sentence, the trial court had imposed the mandatory death penalty, holding its hands were tied. Following the Supreme Court's decision in Francis Karioko Muruatetu & another v Republic & 5 others, Petition No. 15 of 2015, that the death sentence is not mandatory, and noting the appellant was a first offender who had spent nearly seven years in custody before sentencing, the Court set aside the death sentence and substituted twenty years' imprisonment effective from 24th June 2015. The appeal was thus partially allowed.

Questions the Court framed

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

  1. 1.Whether the prosecution proved the appellant's guilt beyond reasonable doubt on circumstantial evidence
  2. 2.Whether motive, malice aforethought and intention were established
  3. 3.Whether the trial judge considered the appellant's defence
  4. 4.Whether the mandatory death sentence should stand in light of the Muruatetu decision

Key legal issues

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01

Sufficiency of circumstantial evidence to sustain a murder conviction

Holding

Circumstantial evidence that the deceased was in the physical custody of the appellant on the material night and was found dead the following morning was strong enough to prove guilt beyond reasonable doubt.

Reasoning

The trial judge found on credible, largely uncontroverted evidence that the appellant sent for the deceased, that the deceased was delivered into his custody, and that his account of leaving the child in the house was untruthful. Closely related witnesses who handed over the child had no reason to lie. The Court, re-evaluating the evidence on a first appeal, found the findings were based on credible evidence and the inference of guilt irresistible.

p. 2
02

Whether motive had to be proved

Holding

It was not necessary to prove motive; the circumstances, including absence of a motive on the part of others, supported the conviction.

Reasoning

The Court held that proof of motive is not an essential ingredient where circumstantial evidence otherwise points irresistibly to the accused. The circumstances indicated the appellant did not wish to assume parental responsibility over the child left in his custody, which was sufficient without formal proof of motive.

p. 2
03

Sentence: mandatory death penalty after Muruatetu

Holding

In light of Muruatetu, the mandatory death sentence was set aside and substituted with twenty years' imprisonment, considering the appellant's long pre-sentence custody and status as a first offender.

Reasoning

The trial court had held that its hands were tied by the mandatory death sentence. The Court of Appeal, applying the Supreme Court's holding in Muruatetu that death is not a mandatory sentence, took into account mitigation, that the appellant was a first offender, and that he had spent nearly seven years in custody before sentencing, and fixed a determinate term.

p. 3

Legal principles established

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  • On a first appeal, the Court of Appeal has a duty to reconsider and re-evaluate the evidence and arrive at its own independent findings.
  • Following Muruatetu, the death sentence for murder is not mandatory and an appellate court may substitute an appropriate term of years.

Court orders

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  1. 1.Appeal against conviction dismissed
  2. 2.Appeal against sentence allowed
  3. 3.Sentence of death set aside and substituted with a sentence of twenty (20) years imprisonment to take effect from 24th June, 2015

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 Eldoret
HCCRC No. 33 of 2008
Jurisdiction invoked
First appeal to the Court of Appeal against conviction and sentence for murder under sections 203 and 204 of the Penal Code

Relief refused

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Appeal against conviction

The circumstantial evidence irresistibly pointed to the appellant as the person who strangled the deceased

p. 2

Costs

No costs order made 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.

This being a first appeal, the Court has a duty to reconsider, re-evaluate the evidence and arrive at its independent findings.
p. 2Duty of a first appellate court
We are satisfied that the circumstantial evidence was strong and irrestibly proved the appellant to be the person who strangled the deceased to death and dumped his body by the roadside.
p. 2Circumstantial evidence sufficient for conviction
It was not necessary to prove motive.
p. 2Motive not essential in circumstantial evidence cases
For the foregoing reasons, the appeal against conviction is dismissed. However, the appeal against sentence is allowed. The sentence of death is set aside and substituted with a sentence of twenty (20) years imprisonment to take effect from 24 th June, 2015 when the appellant was sentenced.
p. 3Final orders - conviction upheld, sentence substituted

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, "L W W v Republic [2019] KECA 951 (KLR)", Case Analysis (2019). Criminal Appeal No. 53 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/951/eng@2019-03-06

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