Bench Bulletin - Issue 12 - Kenya Law Reports

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KENYA LAW REPORTS BENCH BULLETIN FROM THE COURTS — COURT OF APPEAL Constructive Provocation Josiah Afuna Angulu v Republic Criminal Appeal No 277 of 2006 Court of Appeal, at Nakuru May 28, 2010 PK Tunoi, PN Waki & A. R. M. Visram JJ A Reported by Monica Achode Case History An appeal from a conviction and sentence of the High Court of Kenya at Nakuru (Musinga, J) dated 4th April, 2006 in HCCRC No 44 of 2002 Criminal Practice and Procedure – appeal – first and final appeal – duty as the first appellate court to reassess and re-evaluate such evidence and to reach its own independent conclusion – appeal against conviction and death sentence for the offence of murder – main ground that the case against the appellant was not proved beyond reasonable doubt – claims of contradictory evidence – whether the prosecution had proved its case beyond reasonable doubt – Penal Code(Cap 63) section 203 as read with section 204 Criminal Practice and Procedure – constructive provocation – appellant having argued with one of the witnesses prior to the incident – lack of evidence as to whether the deceased had been involved in the argument – whether this could be construed as constructive provocation – whether such provocation could be availed to the appellant The appellant was convicted in the trial court for the offence of murder contrary to section 203 as read with section 204 of the Penal Code and sentenced to death. It was against this The Hon. Mr. Justice A. Visram that he proffered his first and final appeal basing it on one main ground that the case against him had not been proved beyond reasonable doubt and he was therefore entitled to acquittal. During the trial it emerged that prior to the incident, the appellant had engaged in a quarrel with one of the witnesses. It was however not clearly established whether the deceased had been a part of this. Further, in the submission of evidence against the appellant various inconsistencies emerged which cast doubt on the prosecution’s evidence. It was therefore the appellant’s contention that the inconsistencies and contradictions evident in the testimonies were material enough to discount the entire evidence of those witnesses. The appellant further claimed, with the State Counsel conceding, that there may well have been a quarrel between the appellant and one of the witnesses which could have been construed as provocation. However the State Counsel stated that such provocation could not be availed to the appellant as there had been time for his passion to cool between 8 a.m when the quarrel occurred and 2 p.m when the deceased was shot. Held: 1. The evidence may have been short on full consistency in every detail and some of it may not have been fully tested in cross-examination but there was no doubt, that the appellant was at the scene of the crime and not anywhere else as purported by him. 2. The doubtful evidence as to whether the deceased was also involved in the quarrel and whether he said anything before his death, cast a dark shadow on the evidence establishing mens rea. In law the benefit of those doubts went to the appellant. 3. It was the appellant who shot the arrow which resulted in the deceased’s death. It is an unlawful death and the appellant was to stand convicted of the lesser offence of manslaughter. Appeal allowed, conviction quashed, sentence of murder set aside and substituted for the lesser offence of manslaughter. 44 Issue 12: April-June 2010
KENYA LAW REPORTS BENCH BULLETIN FROM THE COURTS — COURT OF APPEAL Superior Court’s jurisdiction to Reverse Trial Court’s Finding Kenneth Kiplangat Rono v Republic Criminal Appeal No. 66 of 2009 Court of Appeal, at Nakuru May 28, 2010 E O O’kubasu, P N Waki & D K S Aganyanya JJ A Reported by Nelson Tunoi Case History Appeal from a judgment of the High Court of Kenya at Kericho (Angawa, J) dated 25th March, 2009 in HCCrA No 4 of 2009 Criminal Practice and Procedure - appeal - second appeal against conviction and sentence - the appellant was convicted on counts of defilement and child trafficking-where the appellant’s acquittal on the count of defilement was reversed to a conviction-whether the superior court had jurisdiction to reverse the trial court’s finding of not guilty to guilty-whether the evidence adduced was sufficient to secure conviction on both counts-whether the appeal had merit-Penal Code sections 260, 261; Sexual Offences Act sections 8 (3), 18 (1) (2); Criminal Procedure Code section 215; United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Article 3 (a) The appellant was charged with two counts, first count of defilement contrary to section 8 (3) of the Sexual Offences Act, and the second count of child trafficking contrary to section The Hon. Mr. Justice 18 (1) of the same Act. After full trial, the appellant was acquitted on the first count for lack E. O. O’Kubasu of evidence and convicted on the second count and consequently sentenced to 15 years imprisonment or a fine of Kshs. 2 million. He lodged an appeal against the conviction and sentence before the superior court. Although the State did not file a cross appeal against the acquittal of the appellant on the count of defilement, the superior court in its judgment appeared to be entertaining some aspect of appeal on that count. The superior court observed that indeed the complainant had been subjected to sexual intercourse by the appellant and thus reversed the acquittal to a conviction and proceeded to sentence the appellant to 20 years imprisonment. On the second count, the superior court set aside the optional fine of Kshs. 2 million and upheld the term of 15 years imprisonment, which sentences were to run concurrently. The appellant was dissatisfied with the decision of the superior court and filed a second appeal before the Court of Appeal on grounds that the superior court erred in law and fact in finding that the complainant was a minor without any form of evidence supporting that finding, that the superior court erred in finding that the complainant was defiled without any evidence supporting that finding, and further that the court erred in law in justifying the conviction of the appellant on the second count of child trafficking on the basis of the provisions of sections 260 and 261 of the Penal Code. Held: 1. There was no cross appeal against the appellant’s acquittal on the count of defilement and the superior court had no jurisdiction to reverse the trial court’s finding of no guilty to that of guilty and sentencing the appellant to 20 years imprisonment on that count. 2. The age of the complainant was not ascertained medically or through any documentation by the prosecution as required in law for such offences. Therefore the age of the complainant remained doubtful and the benefit of that doubt should have been in favour of the accused. 3. On the count of child trafficking, the trial court did not focus on the ingredients of the offence which constitute the act, the means and the purpose, when convicting the appellant on the said count and therefore the conviction of the appellant on the count of child trafficking was unsafe. Appeal allowed, convictions quashed and sentences set aside. Issue 12: April-June 2010 45
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