Republic v Ayienga & 5 others (Criminal Appeal 242 of 2018) [2023] KECA 1545 (KLR)
The bottom line
#Kenya's Court of Appeal found the High Court wrongly acquitted six murder suspects, but its own legal powers limited it to a declaration, so the acquittal stands.
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 prosecution established a prima facie case against the respondents requiring them to be placed on their defence
- 2.Whether the learned Judge erred in fact and in principle in evaluating and discounting the prosecution evidence at the stage of the section 306(1) ruling, including on identification of a single witness and voice recognition
- 3.Whether the Court of Appeal, on a review under section 379(5) of the Criminal Procedure Code, has the liberty to reverse an acquittal entered by the High Court in the exercise of its original jurisdiction
Key legal issues
#Whether the learned Judge erred in finding no case to answer
The Judge erred in fact and on principle by delving into detailed evaluation and discounting of the prosecution evidence, including corroboration of the single identifying witness, at the section 306(1) stage instead of assessing whether there was evidence of a high degree of probability capable of sustaining a conviction.
The court noted the Judge undertook a thorough evaluation of the evidence, discounting it for lack of corroboration, and did not address voice identification. Such matters, the court held, could pragmatically be dealt with at the close of the entire case. On the Galbraith test, where there is some evidence upon which a court could convict, the accused should be called upon to answer. The burden never shifts to the accused, who retains the right to silence, so placing the respondents on their defence would not amount to self-incrimination.
The Court of Appeal's power on review of a High Court acquittal
Under section 379(5) and (6) of the Criminal Procedure Code, the Court of Appeal reviewing such an acquittal has no power to reverse the acquittal or reopen the case; it may only deliver a declaratory judgment, which binds subordinate courts.
The court invoked section 379(5), which requires a certificate from the DPP that the trial involved a point of law of exceptional public importance, and section 379(6), which provides that a declaratory judgment shall not operate to reverse an acquittal. Accordingly, despite finding error in the ruling below, the court could only declare that the Judge misdirected herself.
Accused's right against self-incrimination
An accused has a constitutional right to silence and not to give self-incriminating evidence under Article 50(2)(i) and 50(h), and is under no obligation to respond until the State has made out a prima facie case.
Relying on the maxim nemo tenetur seipsum accusare and the Supreme Court of Canada's articulation of the principle against self-incrimination, the court held that the accused need not assist the prosecution until a prima facie case is established; once it is, the accused may be expected to respond. This frames the significance of the prima facie threshold.
Legal principles established
#- On a review of a High Court acquittal under section 379(5) of the Criminal Procedure Code, the Court of Appeal may only deliver a declaratory judgment; such a judgment cannot reverse the acquittal or reopen the criminal case, though it binds all subordinate courts.
- At the close of the prosecution case, the trial court should not conduct a detailed evaluation and discounting of the evidence (such as weighing corroboration of a single identifying witness); a prima facie case requires only evidence of a high degree of probability, not proof beyond reasonable doubt, and weaknesses in evidence are for determination at the close of the whole case.
Court orders
#- 1.A declaratory judgment that the learned Judge misdirected herself and fell into error in how she arrived at her ruling that the respondents had no case to answer
- 2.No order reversing the acquittal and no order reopening the criminal case against the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya
- Kisii HCCRA No 54 of 2012
- Jurisdiction invoked
- Section 379(5) of the Criminal Procedure Code - review of an acquittal in the High Court's original jurisdiction where the trial involved a point of law of exceptional public importance
Relief refused
#Setting aside the ruling acquitting the respondents and remitting the matter to the High Court (before a different Judge) for defence hearing
Section 379(5) and (6) of the Criminal Procedure Code confine the Court of Appeal to a declaratory judgment which cannot reverse an acquittal or reopen the case
Costs
No costs order was 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.
The efiect of this provision is that we do not have the liberty to reverse the acquittal, nor can we order that the criminal case against the respondents be re-opened.
We can only make a declaration, which we hereby do, to the efiect that the learned Judge misdirected herself and fell into error in how she arrived at her ruling that the respondents had no case to answer.
A declaratory judgment under subsection (5) shall not operate to reverse an acquittal, but shall thereafter be binding upon all courts subordinate to the Court of Appeal in the same manner as an ordinary judgment of that court.
It is our considered view that the learned trial Judge erred in fact and on principle, when she delved into the details of the matter before her at the stage of making a ruling, and made a i nding that the respondents had no case to answer.
the degree need not reach certainty but it must carry a high degree of probability but not beyond reasonable doubt, that there exists evidence which can sustain a conviction.
Our role, therefore is to subject the entire evidence adduced before the trial Court to a fresh evaluation and analysis make our own conclusion as to whether there was suficient evidence establishing a prima facie case against the respondents.
Issues in the judgment
#The appeal is described in the opening line as by 'the Republic' against an acquittal, but the narrative identifies this as a first appeal while the ruling under challenge was delivered by the High Court (Okwany, J) in its original criminal jurisdiction; the judgment elsewhere treats the review as governed by section 379(5) rather than the ordinary first-appeal jurisdiction, creating a tension in the characterisation of the proceedings.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Ayienga & 5 others (Criminal Appeal 242 of 2018) [2023] KECA 1545 (KLR)", Case Analysis (2023). Criminal Appeal (declared under section 379(5) CPC arising from Kisii HCCRA No 54 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1545/eng@2023-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.