Lukura Achuka Hassan v Republic

public together with a knife which had allegedly been recovered by a police reservist. The postmortem report produced by Dr. Joseph Kinyua (PW7), showed that the Deceased died from multiple stab wounds to the chest and neck which severed arteries and caused massive blood loss. Martin Macharia Koge (PW8), the Chief, Thome Location and Corporal Collins Shikuku (PW9), the Investigating Ocer, testied about the recovery of the knife and the investigations respectively. The knife was produced in evidence as an exhibit. 4. In his defence, the appellant gave sworn testimony and denied the charge. He admitted being the Deceased’s husband but claimed that he had been arrested at the market by boda boda riders, who falsely accused him of killing his wife. He denied of being in possession of a knife or running away, and alleged that some of the prosecution witnesses had grudges against him, particularly over dowry and livestock disputes. He maintained that he had lived peacefully with his wife and had no reason to kill her. 5. The High Court (Kasango, J.) found the evidence of the three eye witnesses, PW1, PW2 and PW3 credible and consistent, placing the appellant squarely at the scene as the assailant. It held that the cause of death was consistent with the prosecution’s account. The trial court rejected the appellant’s defence and convicted him, holding that the prosecution had proved all the ingredients of the oence of murder. The appellant was accordingly convicted of murder and sentenced to death as prescribed under Section 204 of the Penal Code. 6. The appellant was dissatised with the conviction and sentence and led this appeal. The appellant contends that the prosecution did not prove its case to the required standard. He further contends that the High Court erred in upholding his conviction in reliance on the purported identication at the scene of the crime by three witnesses’ evidence without considering the conicts of their evidence; that crucial witnesses such as the police reservist who allegedly recovered the knife were not called; that malice aforethought was not proved; and that the trial court failed to comply with Section 169(1) of the Criminal Procedure Code. He also contends that the mandatory death penalty is unconstitutional and that he was not aorded an opportunity to mitigate. 7. When the appeal came up for virtual hearing before us, Mr. Mushila, learned counsel for the appellant, relied entirely on the written submissions that he had led. In the submissions, counsel reiterated that the contradictions concerning the knife and the failure to call key witnesses fatally weakened the prosecution’s case; that motive was not established; and that the mandatory death sentence violated his right to a fair trial under Article 50 of the Constitution. Counsel relied on the Supreme Court’s decision in Francis Karioko Muruatetu & another v Republic [2017] eKLR in support of this argument. 8. Mr. Naulikha, learned counsel for the respondent, made brief oral submissions opposing the appeal. Counsel contended that the appellant was properly convicted of the oence of murder as he had armed himself with both a rungu and a knife, pursued the Deceased, who was his wife, and fatally stabbed her in the presence of her grandmother (PW2) and sister (PW3). He asserted that the attack occurred in broad daylight, around 10.00a.m., in circumstances where the witnesses knew the appellant well, thereby leaving no room for mistaken identity. He emphasized that the evidence of the prosecution was direct and overwhelming, demonstrating malice aforethought as dened under Section 206 of the Penal Code. 9. As regards the constitutionality of the death sentence imposed upon the appellant, counsel contended that the Supreme Court in Francis Karioko Muruatetu & another v Republic (supra) had upheld the legality of the death penalty, subject only to judicial discretion. He submitted that in the present case, the death sentence was proportionate to the manner in which the oence was committed and should https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2235/eng@2025-12-19 2

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not be interfered with. In conclusion, he urged this Court to arm both conviction and sentence, arguing that the trial court’s ndings were sound, and that the sentence was deserved. Determination 10. We have considered the record, the rival submissions, the authorities cited and the law. This being a rst appeal, the duty of this Court is to re-analyze the entire evidence and reach its own conclusions, while bearing in mind that it did not see or hear the witnesses testify. See Okeno v Republic [1972] EA 32 and David Njuguna Wairimu v Republic [2010] eKLR. 11. The issues for determination before us are whether the prosecution proved its case beyond reasonable doubt; whether malice aforethought was proved; whether the impugned judgment accords with the provisions of Section 169 of the Criminal Procedure Code; and whether the sentence imposed upon the appellant was constitutional in light of the Supreme Court decision in Francis Karioko Muruatetu & another v Republic (supra). 12. As regards the rst issue, that is, whether the prosecution failed to prove the case beyond reasonable doubt, the evidence of PW1, PW2 and PW3 who were all present at the scene was consistent that the appellant pursued and fatally stabbed the Deceased. Their evidence was corroborated by the medical evidence which conrmed that the Deceased died from multiple stab wounds. While there were contradictions concerning the recovery of the knife, it is our view that the direct evidence of the eye witnesses was clear and compelling. The appellant was well known to them, as he was their relative and/or neighbor, and the incident occurred in broad daylight. The possibility of mistaken identity was therefore excluded. The fact that the weapon was not dusted for ngerprints or that the police reservist who allegedly recovered it was not called does not, in itself, negate the direct eyewitness testimony. The law is that failure to call certain witnesses is only fatal if their evidence would have been essential to the just determination of the case as held in Bukenya v Uganda [1972] EA 549. In the circumstances herein, the evidence on record was sucient to sustain a conviction, even without the testimony of the police reservist. 13. On the issue of malice aforethought, Section 206 of the Penal Code sets out the circumstances in which it may be inferred, including where there is intent to cause death or grievous harm. In Republic v Tubere s/o Ochen [1945] 12 EACA 63, the Court identied relevant factors in the establishment of malice aforethought, such as the type of weapon used; the manner of its use; the part of the body targeted; and the conduct of the accused before and after the attack. In this case, the appellant repeatedly stabbed the Deceased on the chest and neck, severing major arteries. Such targeted and forceful blows leave no doubt as to an intention to cause death or serious harm. In our view, therefore, the attack was neither accidental nor spontaneous but deliberate, and the appellant’s attempted ight from the scene further demonstrated his consciousness of guilt and the gravity of his actions. 14. On the issue whether the impugned judgment complied with Section 169 of the Criminal Procedure Code which obliges a trial court to set out the points for determination, the decision thereon, the reasons for that decision, and to date and sign the judgment in open court, we have carefully examined the record and note that the learned Judge summarized the evidence, identied the issues which the prosecution was required to prove, and gave reasons for the conviction. Although the reasoning was not elaborate on every point raised, we are satised that the statutory requirements were substantially met. This ground of appeal therefore lacks merit. 15. In view of the foregoing, we are satised that the trial court properly analyzed the evidence tendered before it and came to the conclusion, rightly so in our view, that the appellant was guilty of murder as charged. The appellant’s appeal against conviction is accordingly dismissed. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2235/eng@2025-12-19 3

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16. The nal issue in this appeal concerns sentence. The appellant was sentenced to death as prescribed under Section 204 of the Penal Code. However, in Francis Karioko Muruatetu & another v Republic (supra), the Supreme Court declared the mandatory nature of the death penalty unconstitutional on the basis that it deprives courts of discretion to consider mitigating factors. Therefore, while death penalty itself remains lawful, it cannot be imposed mandatorily. We have perused the record and it does reect that the appellant was accorded an opportunity to mitigate before sentencing. Counsel for the appellant, Mr. Bwonwonga stated as follows: “In view of the Court’s judgment we don’t have much to say.” 17. Having been informed by the prosecution that they did not have previous records in respect of the appellant and that he could be treated as a rst oender, the High Court proceeded to sentence the appellant. The court stated in part as follows: “…This was a wanton and cruel murder of his wife and mother of his children. I sentence him to suer death as provided under the law.” 18. In the end, we are satised that the sentence imposed on the appellant was lawful. This appeal is therefore devoid of any merit and is accordingly dismissed in its entirety. It is so ordered. DATED AND DELIVERED AT NYERI THIS 19TH DAY OF DECEMBER, 2025 JAMILA MOHAMMED ……………………………… JUDGE OF APPEAL L. KIMARU …………………………… JUDGE OF APPEAL A. O. MUCHELULE ……………………………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2235/eng@2025-12-19 4

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