Harun Langat Makan & 5 others v Republic
The bottom line
#Kenya's Court of Appeal upheld four murder convictions but freed two men, ruling that prosecutors must prove each accused person's individual role in mob killings.
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 appellants participated with others in the joint unlawful killing of the two deceased persons
- 2.Whether the evidence of identification/recognition was sound to justify a conviction
- 3.Whether the trial court properly applied the test for conviction based on a single eyewitness
- 4.Whether the sentence of death should be revisited in view of the Supreme Court's decision in Muruatetu
Key legal issues
#Common intention under section 21 of the Penal Code in a mob killing
The 1st to 4th appellants intentionally assisted or encouraged Mohamed to kill the deceased by beheading; the 5th and 6th appellants were likely victims of capture and did not share the common intention.
The court re-evaluated PW6's testimony as first appellate court. She gave a detailed account of each appellant's role: the 1st appellant chased the 1st deceased armed with a gun and panga; the 2nd, 3rd and 4th armed with rungus and pangas chased him before the beheading. The 5th appellant stood outside armed but did not beat or agitate for assault; the 6th appellant did not enter the house nor chase the deceased. In a setting of multi-handed violence by over 200 raiders, the prosecution had to prove each appellant's common intention and rule out capture or mistaken identity.
Identification/recognition by a single eyewitness
PW6's evidence of recognition was cogent and persistent; the inconsistency about whether PW1 was held captive was not material; the trial court properly tested her recollection.
PW6 knew the attackers as neighbours and relatives of long standing, named them in her first statement to police, and spent close to four hours with the gang. Although the case involved a single eyewitness, the court applied the Maitanyi test and found her recollection was tested and reaffirmed. The variation between her account and PW1's testimony about PW1's whereabouts was a slight variation not going to the root of the identification evidence.
Sentence after Muruatetu
The trial court's imposition of the death penalty was not faulted because only the mandatory nature of the sentence was declared unconstitutional; the trial judge considered mitigation before sentencing.
The court noted the Supreme Court in Muruatetu held section 204 deprived courts of judicial discretion in matters of life and death. However, the trial judge here pronounced the sentence after considering mitigation, stating the appellants did not deserve mercy for beheading two human beings. Since the death penalty has not been abolished under the Constitution, the sentence did not offend Muruatetu.
Legal principles established
#- Where a gang of about 200 assailants was involved, the prosecution bore the burden of proving which appellants shared a common intention with the raiders and which were victims of capture.
- Conviction on the testimony of a single eyewitness respecting identification requires testing with the greatest care.
- Only the mandatory nature of the death penalty was declared unconstitutional in Muruatetu; the death penalty itself remains available for murder.
Court orders
#- 1.Appeals by the 1st, 2nd, 3rd and 4th appellants dismissed; judgment of the High Court affirmed and their convictions upheld
- 2.Appeals by the 5th and 6th appellants allowed; they are set free forthwith unless otherwise lawfully held
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal jurisdiction over appeals from the High Court (criminal appeal against conviction and sentence)
Relief refused
#Conviction appeals of the 1st, 2nd, 3rd and 4th appellants
PW6's evidence of recognition and their specific roles in the murders was cogent; prosecution proved common intention
Costs
No costs order made 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.
Accordingly the appeals by the 1st, 2nd, 3rd and 4th appellants are dismissed with the result that the judgment of the High court is affirmed. In regard to the 5th and 6th appellants their appeals are allowed with the result that they are set free forthwith unless otherwise lawfully held.
Going by this scenario we are inclined to allow the benefit of doubt in the case of the 5th appellant. There is a likelihood that he may or may not have been a participant of the execution of the two murders but he was a victim of capture.
Although it is trite law that a fact may be proved by the testimony of a single witness, this does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification
Death penalty has not been abolished under the Constitution, it is the mandatory nature that was declared unconstitutional.
Issues in the judgment
#PW6's testimony that PW1 was held captive contradicts PW1's own testimony that she was at the police station; court found the variation immaterial.
Cross-examination record attributes the parade identification of Jeshi to the '1st accused' although Jeshi is the 3rd accused.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Harun Langat Makan & 5 others v Republic", Case Analysis (2020). Criminal Appeal 42 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/955/eng@2020-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.