Kirwa & another v Republic (Criminal Appeal 230 of 2018) [2023] KECA 598 (KLR)
The bottom line
#Kenya's Court of Appeal upheld two murder convictions and confirmed the death sentence, even after the Muruatetu ruling on sentencing discretion.
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 appellants
- 2.Whether the trial Court considered the appellants' alibi defence
- 3.Whether the appellants acted with malice aforethought
- 4.Whether the sentence of death passed by the trial court was appropriate
Key legal issues
#Whether murder was proved against the appellants on circumstantial evidence
Yes. The corroborative evidence of PW1, PW4 and PW5 established that the appellants whisked the deceased away from his home; the absence of an eyewitness to the killing did not break the chain because the 'last seen with' doctrine applied to their unexplained custody of the deceased.
The court found that PW1, PW4 and PW5's evidence was corroborative in confirming the appellants among the group that abducted the deceased. Though no eyewitness testified to the killing itself, the appellants were the last persons seen with the deceased in his hands and restraint. Their alibi explanations were dismissed as an afterthought (1st appellant) and a failure to explain (2nd appellant), justifying the inference that they killed the deceased.
Whether the trial court erred in its treatment of the alibi defence
No. The alibi could not displace the direct sighting evidence placing both appellants with the deceased; the trial court properly rejected it as unbelievable and an afterthought.
The 1st appellant claimed to have been at his grandmother's place, but PW1, PW4 and PW5 saw him among the group that took the deceased. The 2nd appellant admitted being at the scene but claimed he left; PW4 saw him the following morning watching as the body burnt. The court concluded the appellants knew more about the death than they disclosed.
Whether malice aforethought was established
Yes. The killing arose from witchcraft accusations; the manner of the death — abduction, flogging, tying and burning — could only evidence an intention to cause death or grievous harm under section 206 of the Penal Code.
The court linked the witchcraft accusations against the deceased (confirmed by PW3, PW4 and even the 2nd appellant's own defence) to the appellants' abduction of him. Considering the manner of death, the perpetrators could have had no intention other than to cause death or grievous harm, satisfying section 206(a) of the Penal Code.
Whether the death sentence was appropriate in light of Muruatetu
Yes. Although the mandatory nature of the death sentence was declared unconstitutional, and the court exercised fresh discretion on sentence, the aggravating circumstances of this heinous, witchcraft-motivated killing by fire called for the maximum and deterrent sentence.
The court acknowledged the appellants were first offenders and remorseful, and that they were entitled to the benefit of Muruatetu as they were sentenced in 2016 before the change in the law. However, weighing the brutal manner of the killing against the mitigation, the court found the maximum and deterrent sentence of death appropriate even in the exercise of discretion.
Legal principles established
#- A first appellate court must re-evaluate the evidence and reach its own independent conclusion, while being slow to disturb trial court findings of fact on demeanour
- Circumstantial evidence justifying an inference of guilt must be incompatible with innocence and incapable of explanation on any other reasonable hypothesis; the burden of proving this remains on the prosecution and never shifts
- Before the 'last seen with' doctrine is invoked, the prosecution must first establish that the deceased was last seen in the hands and restraint of the accused; failure by the accused to explain the death permits an inference of guilt
- A postmortem is not essential to prove the fact of death where other evidence sufficiently proves it
- Accused persons sentenced before Muruatetu are entitled to benefit from the declaration that the mandatory death sentence is unconstitutional, but death remains a lawful sentence in appropriate circumstances after considering mitigating and aggravating factors
Court orders
#- 1.The appeal against conviction is dismissed and the conviction is upheld
- 2.The death sentence imposed by the trial court is retained as the appropriate sentence
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated in the judgment as provided
- Jurisdiction invoked
- Section 379(1) of the Criminal Procedure Act as read with Rule 31(1)(a) of the Court of Appeal Rules, 2022 (first appeal)
Relief refused
#Setting aside of the death sentence in light of Muruatetu
Aggravating factors (heinous, witchcraft-motivated killing by fire) justified the maximum and deterrent sentence; the court declined to vacate the death sentence despite the appellants being first offenders and remorseful
Costs
No costs order made in the judgment as provided
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.
We therefore find no merit on the appeal against conviction and the same is hereby dismissed and the conviction upheld.
It is so ordered.
In this case, even when exercising our discretion in sentence, we do not find it judicious to vacate the death sentence. It is the appropriate sentence based on the circumstances of this case and that is what the appellants herein must face.
The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution.
It follows that prior to invoking the doctrine of “last seen”, the prosecution must first establish that the deceased was last seen in the hands and restraint of the appellants.
As a first appellate Court, we are under obligation to delve into and consider the evidence as presented before the trial court before arriving at our own independent conclusion.
Issues in the judgment
#The judgment cites the Supreme Court decision in Muruatetu with two inconsistent years: '(2018) eKLR' in the appellants' submissions and '[2017] eKLR' in the court's own discussion.
The case citation for Charles Mathenge Mwangi & Another v Republic appears incomplete: 'CR Appeal No 1997' lacks a year of filing.
The judgment refers to 'section 379(1) of the Criminal Procedure Act', whereas the standard title of the governing statute is the Criminal Procedure Code; the judgment as provided uses 'Criminal Procedure Act'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kirwa & another v Republic (Criminal Appeal 230 of 2018) [2023] KECA 598 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/598/eng@2023-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.