Manini & 4 others v Republic (Criminal Appeal 26 of 2019) [2024] KECA 47 (KLR)
The bottom line
#Kenya's Court of Appeal upheld the murder convictions and 25-year sentences of five appellants, confirming that a murder weapon need not be recovered for a conviction to stand.
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 proved its case beyond reasonable doubt, including whether failure to call certain crucial witnesses was fatal
- 2.Whether the ingredients of murder (death, unlawful act, malice aforethought) were proved, including whether non-recovery of the murder weapon was fatal
- 3.Whether the alibi defences were properly rejected
- 4.Whether the 25-year imprisonment sentence was warranted
Key legal issues
#Duty of the first appellate court
The Court conducted a fresh, exhaustive re-evaluation of the evidence as required on a first appeal
Citing Okeno v Republic, the Court restated that a first appellate court must submit the evidence as a whole to fresh exhaustive examination, weigh conflicting evidence, make its own findings and draw its own conclusions, while making allowance for the trial court's advantage of hearing and seeing the witnesses. The Court then re-analysed the identification evidence, the medical evidence, the alibi defences and motive before reaching its own conclusions.
Failure to call crucial witnesses
Failure to call Gladys and Moseti did not prejudice the appellants; the prosecution has discretion over which witnesses to call
The Court acknowledged Bukenya v Uganda on calling crucial witnesses but held the discretion as to which witnesses to call rests with the prosecution, provided crucial witnesses are called. On the evidence, Gladys and Moseti were not present at the time of the assault, as PW1 clarified in cross-examination, so their evidence would not have been material and no prejudice was demonstrated.
Non-production of the murder weapon
Conviction may stand without the weapon being recovered as an exhibit
The Court applied Karani v Republic and its own decision in Godfrey Wafula Simiyu, holding there is no legal requirement to produce the murder weapon. Given the lapse of time and the escort of the deceased to the police station by the assailants themselves, the Court found it safe to assume the weapon was disposed of, and the postmortem and medical testimony sufficiently proved the cause of death.
Ingredients of murder and malice aforethought
Death, causation by the appellants' unlawful act, and malice aforethought were all proved beyond reasonable doubt
The Court restated the three ingredients of murder and found each proved: death was confirmed by the postmortem report and PW3; PW1 and PW2 credibly identified the appellants by recognition under lamplight and close proximity; and the revenge motive, the vulnerability of the head targeted, the weapon used and the manner of attack established an intention to cause grievous harm or death.
Alibi defence
The alibi defences were properly rejected as the medical documents predated the incident by months
The 1st appellant's treatment documents showed admission on 30 October 2013 and discharge on 7 November 2013, more than five months before the April 2014 killing. The 2nd appellant claimed he was caring for the 1st appellant at Kenyatta National Hospital, yet the documents produced were not from that hospital. The defences were therefore properly rejected when weighed against the positive recognition by PW1 and PW2.
Sentence
The 25-year sentence was lawful and properly exercised in light of Muruatetu and is upheld
Although section 204 of the Penal Code prescribes a mandatory death sentence for murder, the Supreme Court in Muruatetu declared that mandatory nature unconstitutional, restoring judicial sentencing discretion. The learned Judge exercised that discretion, and considering that a life was lost through a cut wound inflicted on the head, the Court found no reason to disturb the sentence.
Legal principles established
#- A first appellate court must re-evaluate the whole evidence, make its own findings and draw its own conclusions, while allowing for the trial court's advantage of seeing and hearing the witnesses
- The prosecution is not obliged to call a multitude of witnesses; it need only call witnesses sufficient to establish the charge beyond reasonable doubt
- Non-recovery of the murder weapon is not fatal to a murder conviction where the court believes on the evidence that such weapon existed at the time of the offence
- Following Muruatetu, a court sentencing for murder is not bound to impose the mandatory death sentence under section 204 of the Penal Code
Court orders
#- 1.The appeal against both conviction and sentence is dismissed in its entirety
- 2.The sentence of 25 years' imprisonment is affirmed and upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisii
- Kisii HCCR No. 96 of 2014
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Criminal Procedure Code (Cap 75)
Relief refused
#Setting aside of conviction
Identification by PW1 and PW2 was credible and all ingredients of murder were proved beyond reasonable doubt
Review of the 25-year sentence
The trial judge properly exercised his sentencing discretion in line with Muruatetu
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 upshot of the foregoing is that the appellants appeal on both conviction and sentence is without merit and is dismissed in its entirety.
There would be no reason to disturb the sentence of 25 years. The same is hereby afirmed and upheld.
The prosecution is not obliged to call a superfiuity of witnesses but only such witnesses as are suficient to establish the charge beyond any reasonable doubt.
whereas it might have been important to produce the murder weapon, it is our considered view that failure to produce the same was not fatal to the prosecution’s case.
It is not the function of the first appellate court to merely scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions.
Issues in the judgment
#The case number of the present appeal before the Court of Appeal is not stated in the judgment; it is inferred only from the delivery station and the trial case number
The names of the individual appellants are not set out in a coram or title; they appear only in the narrative as the 1st to 5th appellants (e.g. the 4th appellant is named as Joseph Mandela Manini alias Tom)
Citations in the judgment contain typographical errors ('ofience', 'afirmed', 'Pandya v Republic (195) EA (336)') affecting accuracy of quoted citations
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Manini & 4 others v Republic (Criminal Appeal 26 of 2019) [2024] KECA 47 (KLR)", Case Analysis (2024). Criminal Appeal Kisumu (High Court appeal from Kisii HCCR No. 96 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/47/eng@2024-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.