Automated Summary
Key Facts
The petitioners (Mohammed Dadi Kokane, Alfred Njuruka Makoko, Samwel Mwachala Mwaghania, and James Chacha Mwita) were convicted of murder on 18 December 2014 and sentenced to 40 years imprisonment. Their conviction was based on the doctrine of common intention as the principal offender (Salatt) was not charged. Their appeal to the Court of Appeal was dismissed on 14 February 2019, and their subsequent constitutional petition (Petition No. E033 of 2024) was dismissed on 20 February 2026 for res judicata and abuse of court process, as all issues had been previously adjudicated.
Issues
- The court considered whether the petitioners were positively identified as assailants at the scene of the crime, which was a key element in their conviction under the doctrine of common intention.
- The court assessed if the prosecution established the offence of murder against the petitioners beyond reasonable doubt, including the element of malice aforethought and the application of Section 21 of the Penal Code, which was challenged as insufficient evidence for conviction.
- The court examined if the trial court correctly invoked the doctrine of common intention to convict the petitioners for murder, despite the principal offender not being charged or tried, which was central to the petitioners' constitutional claims.
Holdings
The High Court dismissed the petition as res judicata and an abuse of court process. The petitioners had exhausted all prior legal avenues including trial, appeal to the Court of Appeal, and a prior constitutional petition, making relitigation of the same issues improper. The court ruled the petition must be struck out without costs.
Remedies
The court dismissed the petition but ordered petitioners' sentences to run from the time of custody, granting credit for pre-sentence detention that was not considered during sentencing or appeal.
Legal Principles
- The court dismissed the petition as res judicata, holding that all issues had been fully adjudicated in prior proceedings (trial, appeal, and a previous constitutional petition) without new compelling evidence. The court cited Henderson v Henderson and Johnson v Gore Wood to establish that the petitioners failed to raise new issues in the current proceeding.
- The court applied the doctrine of common intention under Section 21 of the Penal Code to convict petitioners for murder, finding they shared a common unlawful purpose to block the deceased's access to his camp, which led to the fatal stabbing. The court relied on case law to establish that murder was a probable consequence of their shared unlawful purpose.
Precedent Name
- Rex v Tuper S/O Ocher
- Eunice Musenya Ndui v R
- Njoroge v Republic
- Henderson v Henderson
- Wanjiru v R
- Johnson v Gore Wood & Co
- Bezant v Rausing
Cited Statute
- Penal Code
- Criminal Procedure Code
Judge Name
Ngaah Jairus
Passage Text
- The accused and their cohorts were all armed with dangerous and offensive weapons. They set upon the deceased and his team who were unarmed. The attack was unprovoked. Such action in the minds of the accused persons would clearly have no outcome other than grievous harm or death to the victims. Indeed this is exactly what happened. The deceased was fatally stabbed during the attack. I am satisfied that the prosecution have proved that the 1st, 2nd, 3rd and 4th accused persons and their group in addition to having a common unlawful intention, acted on this common intention with malice aforethought. The ingredients of the offence of murder having been proved beyond a reasonable doubt, I hereby convict the 1st, 2nd, 3rd and 4th accused persons of the offence of murder contrary to section 203 of the Penal Code of Kenya.
- Here the common intention was to prevent the deceased reaching his camp. The actions of the accused were unlawful in that they had no right to block the deceased from using a public road, or from accessing his own property...The accused acted unlawfully in blocking the road and in attacking the deceased to prevent him reaching his camp. In prosecuting this unlawful purpose an offence was committed – the deceased was murdered. The accused persons are criminally culpable for this loss of life.