Osewe & 3 others v Republic (Criminal Appeal 21 of 2019) [2024] KECA 1414 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a murder conviction and 25-year sentence, confirming that recognition by witnesses plus a dying declaration can be strong enough evidence.
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 were positively identified as the assailants, whether by recognition or through the deceased's dying declaration
- 2.Whether the prosecution proved that the appellants unlawfully caused the death of the deceased
- 3.Whether malice aforethought was proved
- 4.Whether the trial court failed to consider the appellants' alibi and whether the alibi was rebutted
- 5.Whether the contradictions alleged in the prosecution evidence were material enough to vitiate the conviction
- 6.Whether adverse inference should be drawn from the prosecution's failure to call DW1 and DW2 as its witnesses
- 7.Whether the trial judge's failure to comply with section 200(3) of the Criminal Procedure Code prejudiced the appellants so as to warrant a retrial
- 8.Whether the sentence of 25 years imprisonment should be interfered with
Key legal issues
#Ingredients of murder
The prosecution must prove death of the deceased, that death was caused by an unlawful act or omission of the accused, malice aforethought, and that it was the accused who killed the deceased.
Relying on its prior decisions in Titus Ngamau Musila Katitu and Antony Ndegwa Ngari, the Court restated the four prerequisites of murder under section 203 of the Penal Code. Death was not disputed; the contested ingredients were causation, identification and malice aforethought, each examined against the standard of proof beyond reasonable doubt, the burden resting throughout on the prosecution per Woolmington v DPP.
Identification by recognition
PW1 and PW2 positively identified the appellants by recognition; their evidence of prior acquaintance, uncontroverted by the defence, placed the appellants at the scene.
Applying the Turnbull factors and the recognition principle in Anjononi, the Court found the witnesses had opportunity and motive to observe the attackers under lighting conditions, and that the appellants never denied being known to the witnesses. Their alibi merely asserted innocence without dislodging the recognition evidence.
Dying declaration
The deceased's statements to PW3 and PW4 implicating the appellants were admissible under section 33(a) of the Evidence Act and, given their probative value, dispelled any risk of mistaken identification.
The Court treated the dying declaration as an exception to the hearsay rule under section 33(a) of the Evidence Act, admissible whether or not made under expectation of death. Its weight depends on the credibility of both declarant and recipients; PW3 and PW4's evidence was uncontroverted, so the declaration was an objective fact strengthening the identification evidence.
Malice aforethought
Malice aforethought was inferred from the sustained, premeditated night attack with crude weapons, including setting the deceased's house on fire.
Applying section 206 of the Penal Code, the Court found intention to cause death or grievous harm under section 206(a). The prolonged, repeated attack despite the victims' cries, and the burning of the house, demonstrated a clear premeditated mission from which intention to kill or critically injure could properly be inferred.
Alibi
Where alibi is first raised in unsworn defence statements, the trial court must weigh it against the prosecution evidence, which Karanja, J. did.
Following Ganzi & 2 Others v Republic, the Court held the alibi having been raised for the first time in unsworn statements, the correct approach was for the trial court to weigh it against the prosecution case. The judgment showed the learned judge considered both the defence and the prosecution evidence and rejected the alibi.
Contradictions in prosecution evidence
The contradictions alleged were minor and did not affect the substance of the prosecution case; only substantial contradictions on material facts are fatal.
Adopting Twehangane Alfred v Uganda and the definition of contradiction in David Ojeabuo v FRN, the Court distinguished material contradictions from mere discrepancies in detail. None of the cited inconsistencies (the light, the weapon used on PW2, variations in the dying declaration) went to the real substance of the case.
Failure to call DW1 and DW2 as prosecution witnesses
No adverse inference arises; the prosecution is not bound to call a superfluity of witnesses and their evidence as defence witnesses lacked credibility.
Restating Bukenya & Others v Uganda, the Court held adverse inference is available only where prosecution evidence is barely adequate and the missing witness's testimony would have elucidated a material matter. DW1 and DW2 testified as defence witnesses and their account was found incredible and of little assistance.
Compliance with section 200(3) CPC
Although the trial judge failed to comply with section 200(3), the appellants demonstrated no material prejudice; a retrial was not warranted.
Guided by Ndegwa v R, Samuel Kabiru, Fatehali Manji, Joseph Kamau Gichuki and Nyabuto v Republic, the Court held section 200 is to be applied sparingly and that a conviction may be set aside under section 200(4) only where material prejudice is shown. Counsel never objected to the trial continuing, the appellants tendered their defence, and the trial had been pending since 2015.
Sentence
The 25-year imprisonment sentence was lawful and appropriate; no reason to interfere.
The Court considered the severity of the offence of murder and the sentence imposed after mitigation, and found no basis for interference. This completes the appellate review of both conviction and sentence on a first appeal.
Legal principles established
#- On a first appeal the appellate court must rehear the case and arrive at its own conclusions, but defers to the trial judge on witness demeanour and credibility.
- Identification evidence must be both truthful and accurate and must be rigorously tested before it can found a conviction.
- Recognition of an assailant is more reliable than identification of a stranger.
- Only substantial contradictions going to material facts warrant rejection of prosecution evidence; minor contradictions do not vitiate a trial.
- A retrial is ordered only where the original trial was illegal or defective and where the interests of justice require it.
- Section 200 of the Criminal Procedure Code is to be invoked sparingly, and a conviction is set aside under section 200(4) only where material prejudice is shown.
Court orders
#- 1.The appeal by the 1st, 2nd, 3rd and 4th appellants is dismissed
- 2.The conviction and sentence imposed by the High Court at Homabay (Karanja, J.) on 6th December 2018 in High Court Criminal Case No. 7 of 2015 are upheld
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 at Homabay
- High Court Criminal Case No. 7 of 2015
- Jurisdiction invoked
- First appeal to the Court of Appeal against conviction and sentence in a murder trial (Criminal Procedure Code appellate jurisdiction); no specific constitutional provision cited for the appeal itself
Relief refused
#Quashing of conviction
The appellants were positively identified by recognition by PW1 and PW2, and the dying declaration strengthened the identification evidence
Order for retrial on account of non-compliance with section 200(3) CPC
No material prejudice to the appellants was demonstrated; the provision is to be invoked sparingly and in the interests of justice
Interference with sentence
The Court found no reason to interfere with the 25-year sentence
Costs
No costs order made; the judgment contains no costs provision.
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 our conclusions on the issues determined above is that this appeal by the 1st, 2nd, 3rd and 4th appellants lacks merits and it is hereby dismissed.
Accordingly, we uphold both the conviction and sentence imposed by the High Court on at Homabay (Karanjah, J.) delivered on 6th December, 2018 in High Court Criminal Case No. 7 of 2015.
Where the case rests on identification evidence, the identification must be both truthful and accurate. Our system of justice is deeply concerned that no person who is innocent of a crime should be convicted of it.
the dying declaration is an objective fact that strengthens the identification evidence and dispels any risk of mistake. It is our view that the weight and probative value of the dying declaration is overwhelming.
Even though the learned trial judge failed to comply with section 200 (3), in our view, the circumstances of this case are such that it cannot be said that the appellants were materially prejudiced.
Malice cannot not be imputed to an accused person based solely on their participation in a crime.
Issues in the judgment
#Typographical errors in the judgment, including 'Federal Republic of Nigeri' (for Nigeria), 'the appellants were correctly determined to the ofienders' (apparently 'identified as the offenders'), and 'malice aforethought was could be inferred', which may affect verbatim quotation accuracy.
The memorandum of appeal grounds skip from (b) to (d), with no ground (c) recorded.
The judgment does not state the Court of Appeal case number for the present appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Osewe & 3 others v Republic (Criminal Appeal 21 of 2019) [2024] KECA 1414 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1414/eng@2024-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.