Andrew Njeru Makunyi & another v Republic [2013] eKLR

Key Facts

Issues

• The court evaluated the credibility of the identification evidence provided by Gitonga and Njagi, determining it was consistent and sufficient to support the first appellant's conviction. The evidence included descriptions of the attackers under pressure lamp light and their known presence in the estate, leading to the conclusion that the appellants acted with a common intention to commit murder.
• The court found the evidence did not connect the second appellant (Majera) to the stabbing. Gitonga and Njagi testified that he attempted to separate the confrontation, and their accounts exonerated him from participation in the assault, leading to the dismissal of his conviction.

Holdings

• The appeal of the second appellant, Josephat Mutegi Viringo, was allowed. The Court determined that Gitonga's and Njagi's testimony did not link him to the stabbing. Njagi's evidence explicitly stated that the second appellant attempted to separate the parties, exonerating him from the offense.
• The appeal of the first appellant, Andrew Njeru Makunyi, was dismissed. The Court found that the evidence from Gitonga and Njagi, corroborated by other witnesses, sufficiently established his presence at the scene and participation in the assault. The trial judge's conclusion of a common intention to commit murder was upheld.

Remedies

• The Court of Appeal at Mombasa allowed the appeal of the second appellant, Josephat Mutegi Viringo (alias Majera), quashed his conviction for murder, set aside his death sentence, and ordered his immediate release unless otherwise lawfully held.
• The court quashed the conviction of the second appellant, Josephat Mutegi Viringo, for the murder charge under Section 203/204 of the Penal Code, based on exonerating evidence from witnesses.
• The death sentence imposed on the second appellant, Josephat Mutegi Viringo, for the 2002 murder of Cyprian Kaburu was set aside by the appellate court following the quashing of his conviction.
• The court ordered that the second appellant, Josephat Mutegi Viringo, be set at liberty forthwith unless he is otherwise lawfully held, effective immediately upon the judgment's delivery on 24 January 2013.

Legal Principles

• The burden of proof was on the prosecution to establish the appellants' involvement in the murder. The court found this met for the first appellant but not the second, as the evidence did not connect the second appellant to the stabbing.
• The court assessed whether the prosecution's evidence met the standard of proof required for conviction, emphasizing the consistency of witness testimony and the sufficiency of light conditions for identification. The appellate court upheld the conviction of the first appellant but quashed the second's due to insufficient evidence linking him to the crime.

Cited Statute

Judge Name

• W. Karanja
• D.K. Maraga
• E.M. Githinji

Passage Text

• On our own evaluation of the evidence we are satisfied that the first appellant was in the company of Oscar and that he held the deceased as Oscar stabbed him. The first appellant was therefore properly convicted and his appeal is hereby dismissed.
• In the result the appeal of the 2nd appellant is hereby allowed. His conviction quashed and sentence set aside. The 2nd appellant shall be set at liberty forthwith unless otherwise lawfully held.
• I am unable to believe the defence of alibi raised by D.W. 1 and D.W. 3. I find the evidence of P.W. 2 and P.W. 4 to be consistent. I find that the evidence of P.W. 2 and P.W. 4 places the two accused persons at the scene of crime. There was sufficient sort (sic) of light to enable the two witnesses identify the accused persons as the people who jointly assaulted the deceased. I am satisfied that the accused persons jointly with one Oscar... have had a common intention to commit the offence of murder.