JKK v Republic (Criminal Appeal 118 of 2011)
[2013] KECA 241 (KLR) (3 October 2013) (Judgment)
JKK v Republic [2013] eKLR
Neutral citation: [2013] KECA 241 (KLR)
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NYERI
CRIMINAL APPEAL 118 OF 2011
ARM VISRAM, FI KOOME & JO ODEK, JJA
OCTOBER 3, 2013
BETWEEN
JKK ............................................................................................................. APPELLANT
AND
REPUBLIC ............................................................................................ RESPONDENT
(Appeal from a conviction and sentence of the High Court of Kenya at
Meru, (Lesiit, J.) dated 5th May, 2011 in H.C.CR.C. No. 22 of 2009)
Whether a person who committed the oence of murder while a child ought to serve a custodial
sentence where he was an adult at the time his appeal against the conviction and sentence was
determined.
The appellant was convicted of the offence of murder and sentenced to death. The court noted that a death sentence
could not be imposed on a person who was under the age of 18 years. The court further found that the appellant
who at the time of committing the offence was a child but was now of the age of majority could not be released
to the society before he was helped to understand the consequences of his mistakes, which could only happen after
serving a custodial sentence.
Reported by Kakai Toili
Criminal Law – child offenders – sentences to be imposed on child offenders – death sentence - whether a death
sentence could be imposed on a person who was under the age of 18 years - whether a person who committed the
offence of murder while a child ought to serve a custodial sentence where he was an adult at the time his appeal
against conviction and sentence was determined - Children Act, 2001 Part XIII.
Brief facts
The appellant was charged with the oence of murder at the High Court. After considering the appellant’s
evidence, the High Court dismissed the defence of provocation and self-defence. It was claimed that the
appellant chased the deceased while holding a knife and stabbed her leading to her demise. The appellant was
https://new.kenyalaw.org/akn/ke/judgment/keca/2013/241/eng@2013-10-03 1
convicted of the oence of murder and sentenced to death. Aggrieved, the appellant led the instant appeal
against both the conviction and sentence. He raised various grounds of appeal including that the oence of
murder was not proved because none of the witnesses gave evidence on how the quarrel started, in other words
the defence of provocation was not displaced.
Issues
i. Whether a death sentence could be imposed on a person who was under the age of 18 years.
ii. Whether a person who committed the oence of murder while he was a child ought to serve a
custodial sentence where he was an adult at the time his appeal against the conviction and sentence
was determined.
Held
1. Being a rst appeal, the court was duty bound to subject the evidence on record to a thorough
evaluation and to make its own conclusions in the matter but with the usual caution that it was the
trial court that saw and heard the witnesses.
2. Given the distance the appellant chased the deceased, which was conrmed by PW 1 and PW 2, the
appellant had ample time to recollect his emotions and regain his self-control. Moreover while chasing
the deceased he was followed by PW1 and PW2 who were screaming, the deceased was also screaming
in distress. The facts of the case did not occasion a threat to the appellant as the deceased was running
away screaming and therefor the defence of self-defence was totally misplaced. The oence of murder
was proved. The appeal on conviction was therefore without basis.
3. The appellant was probably a minor when he committed the oence. A death sentence could not be
imposed on a person who was under the age of 18 years. The prosecution did not help matters as they
failed not only to subject the appellant to medical examination but also the age assessment. The way the
matter was left, the trial court should have followed the matter of age assessment so as to ensure a legal
and appropriate sentence was passed. As per the provisions of Children Act 2001 a death sentence or
life imprisonment for that matter could not be imposed on a person who was below the age of 18 years.
4. Under the Children Act, any person below the age of 18 was a child and if found guilty of an oence,
he was supposed to be sentenced according to the provisions of Part XIII of the Children Act which
made provisions on how a court should punish a child oender.
5. The appellant was about 17 years when he was rst arraigned in court in March, 2009, four years had
since passed, which meant he was over the age of 18 years, therefore, he was not suitable to be subjected
to any of the sentences provided for under the Children Act. The purposes of the sentences provided
for under the Children Act were meant to correct and rehabilitate a young oender. A death sentence
or a life imprisonment were not provided for but when dealing with an oender who had attained the
age of 16 years, the court could sentence him in any other lawful manner.
6. The oence committed by the appellant was very serious, an innocent life was lost, the appellant
though probably a minor when he committed the oence must serve a custodial sentence so that he
could be brought to bear the weight and responsibility of his omission or lack of judgment, by serving
a custodial sentence. The appellant who was now of the age of majority could not be released to the
society before he was helped to understand the consequences of his mistakes, which could only happen
after serving a custodial sentence.
Appeal partly allowed.
Orders
i. The death sentence was substituted with twelve years imprisonment.
ii. Appeal on conviction is dismissed.
Citations
Cases
https://new.kenyalaw.org/akn/ke/judgment/keca/2013/241/eng@2013-10-03 2
1. Kazungu Kasiwa Mkunzo & another v REPUBLIC (Criminal Appeal 239 of 2004;
[2006] KECA 381 (KLR)) — Explained
2. Alipayo Lol s/o Acuda v. R (E.A. C.A. Criminal Appeal No. 121 of 1959) — Explained
3. Doto s/o Mtaki v Republic ((1959) EA 860) — Explained
4. Pandya v Republic ([1957] EA 338) — Explained
Statutes
1. Children Act (cap 141) — part XIII; section 191(1) — Interpreted
2. Penal Code (cap 63) — section 35(1); 187; 204; 205 — Interpreted
3. Probation of Oenders Act (cap 64) — In general — Cited
Advocates
None mentioned
JUDGMENT
1. The facts of this matter regarding the cause and who caused the death of HKR (deceased) are not
in dispute. What is in dispute is whether there was motive for the killing. These are the brief facts as
gathered from the evidence before the trial Judge. On February 15, 2009, at about 2 PM, at Muthara
location, JRNK, testied that she was at her home when she heard somebody screaming in distress.
On checking, she saw people running towards her home. It was HKR (deceased), being chased by JKK
(appellant). The appellant was holding a knife. Sensing danger, PW 1 started screaming as she moved
towards the two people. By the time she reached them, the deceased was lying down and the appellant
had stabbed him with a knife. PW1 held the appellant to restrain him from stabbing the deceased again
as she continued screaming.
2. Soon PW1 was joined by CN (PW 2) also a neighbour who had also seen the two people chasing each
other. They had passed through her compound and the appellant was holding a knife in his hand.
PW 2 followed them for a distance of about 1 ½ Kilometres while screaming. She caught up with the
duo at PW1’s homestead by that time the deceased was lying down. He had been stabbed and PW 1
was holding the appellant. They were soon joined by Georey Miriti Mitu (PW 3), who was on his
way from church and was attracted by the commotion. He followed and saw the appellant chasing the
deceased and PW 1 was following them the appellant was holding a knife
3. By the time PW3 caught up with the duo, they had reached PW 1’s homestead, the deceased was lying
down and as PW1 was struggling to restrain the appellant, PW 3 managed to grab the knife from the
appellant and threw it behind the house next to a banana plantation. The deceased was still breathing
so PW3 with the help of other people tried to carry him to the road but soon they realized he had
stopped breathing. A large group of members of public also gathered in response to the commotion
and upon realizing the appellant had stabbed the deceased and inicted upon him fatal injuries, they
descended on the appellant and beat him until he was unconscious.
4. The police were called by Peter Miriti (PW 4) who had also responded to the commotion. The report
was received by Police Constable Maric Kipkoech (PW5). He visited the scene and found the deceased
lying down on the side of the marram road dead. He had been stabbed on the back. The appellant was
also lying beside the body of the deceased. The appellant had been seriously assaulted by the members
of public. PW 5 took the body to Meru General Hospital Mortuary. The appellant was admitted at
Nyabene Hospital for four days. PW5 as the investigating ocer interviewed the witness and preferred
the charges against the appellant.
https://new.kenyalaw.org/akn/ke/judgment/keca/2013/241/eng@2013-10-03 3
5. The appellant was nally arraigned before the High Court in Meru on the 3rd day of March 2009.
He was charged with the oence of murder contrary to section 203 as read with section 204 of the
Penal Code. The particulars of the oence stated that on the 15th day of February, 2009, in Tigania
District, within Eastern Province, the appellant murdered Henry Kairichi Runga. The Prosecution
called a total of ve witnesses who gave evidence in support of the charge. In addition to the evidence
of PW 5, as the Investigating Ocer in this matter, he had taken possession of the knife from PW 3
which he produced in court as an exhibit. A post mortem examination was carried out on the body of
the deceased by Dr Macharia. However, the doctor could not attend court to give evidence without
unreasonable delay and there having been no objection from the defence counsel, the post mortem
report form was produced by PW 5.
6. After the evidence of the ve prosecution witnesses, the court was satised that the appellant had a case
to answer. He was placed on his defence and he gave a sworn statement in his defence. In his defence,
the appellant alluded to a defence of provocation and self-defence. He stated that on the material day,
he met with the deceased. He greeted him but the deceased kept quiet. As he was walking away, the
deceased held him by the hand and threatened him that he would know who he was. The deceased
then produced a knife and stabbed the appellant on the right arm near the elbow. While struggling in
self-defence, he took the knife from the deceased and stabbed him on the back. He later found himself
in hospital after three days.
7. After considering this evidence, the learned trial Judge dismissed the defence of provocation and self-
defence. This is what the Judge observed in pertinent part of the judgment:-
The evidence by the Prosecution establishes that the accused was the one seen chasing the
deceased and that he did so for at least one and half kilometres before he nally stabbed
the deceased. If the accused had been attacked and provoked by the deceased, the danger
that may have been caused to the accused by the attack and provocation had long waned by
the time that he stabbed the deceased. It is clear from the overwhelming evidence adduced
by the Prosecution that the accused had an opportunity to safely escape an attack by the
deceased if any.
I am satised from the evidence adduced that the accused was in no danger in life and that, therefore,
self-defence is not available to him.
As no malice aforethought, the knife the accused used to stab the deceased was presented before the
court. It was a dagger with a long blade. The stab wound was found to have penetrated right through
the lungs and the heart. Even though it was a single stab, it was well calculated stab at a most sensitive
part of the body. By stabbing the deceased on that part of the body, the accused must have known that
the injury inicted was likely to cause either grievous harm or death to the deceased.
I am satised that the prosecution has established beyond any reasonable doubt that the accused was
motivated by malice aforethought when he stabbed the deceased in the afternoon on question.”
8. The appellant was convicted of the oence of murder and sentenced to death. The appellant has now
appealed against both the conviction and sentence. He raised ve grounds of appeal by his home grown
memorandum of appeal. Those grounds were adopted during the hearing of this appeal and were ably
argued by Mr Gathiga Mwangi, learned counsel for the appellant. According to counsel, the oence
of murder was not proved because none of the witnesses gave evidence on how the quarrel started, in
other words the defence of provocation was not displaced. All the witnesses testied that they all saw
the appellant chasing the deceased with a knife, none of them knew how the ght started.
https://new.kenyalaw.org/akn/ke/judgment/keca/2013/241/eng@2013-10-03 4
9. The appellant raised the defence of provocation which the court did not give due regard. According to
Mr Mwangi the court seemed to have shifted the burden of proof of provocation to the appellant. He
cited the authority in the case of Doto s/o Mtaki vs R, 1959 EA 860, which established the principle
that a burden of proof does not shift to an accused person to establish his defence of provocation.
The appellant did not have any burden to prove provocation. The circumstances on how the deceased
was stabbed were set out by appellant in his defence which was not challenged by the prosecution’s
evidence. The other important anomaly pointed out in this appeal was the age of the appellant. The
court on two occasions observed that the appellant was aged 17 years or was under the age of 18 years
respectively. At one time the court on its own motion did make an order directing the appellant to be
subjected to an age assessment at the Meru District Hospital. Apparently, that order was not eected
and the appellant was not subjected to age assessment.
10. Mr. Mwangi went on to argue that since the appellant was below the age of 18 years, when he
committed the oence, he could not be convicted and sentenced to death. Counsel referred to a
decision by this Court dierently constituted in the case of Kazungu Kasiwa Mkunzo & Another v R,
Mombasa Court of Appeal Criminal Appeal No 239 of 2004. In that case, a minor who was convicted
of the oence of robbery with violence and sentenced to death, the death sentence was quashed and
substituted with imprisonment at the President’s pleasure.
11. This appeal was opposed by Mr Kaigai, learned Assistant Deputy Public Prosecutor. He submitted
that the evidence against the appellant was overwhelming and met the required standards. The
appellant stabbed the deceased to death from his own admission and also from the evidence of PW 1.
On the issue of whether the appellant possessed the requisite malice aforethought, he was seen chasing
the deceased for about 1 ½ Kilometres which was enough distance for him to cool his anger if he had
been provoked by the deceased. Going by the post mortem report, the appellant stabbed the deceased
on a very delicate part of the body which inicted a fatal injury and was consistent with the fact that the
appellant had formed the intention to kill the deceased or he was reckless that he did not care about the
life of the deceased. Mr Kaigai conceded that the appellant was not subjected to medical examination;
therefore, his age was not ascertained. Counsel left the issue of sentence for the Court to determine
in view of this anomaly.
12. This is a rst appeal, and that being so, we are duty bound to subject the evidence on record to a
thorough evaluation and to make our own conclusions in the matter but with the usual caution that
it is the trial court that saw and heard the witnesses. This Court stated in Pandya v R, [1957] EA 338
at page 337:
On rst appeal from a conviction by a Judge or Magistrate sitting without a jury the
appellant is entitled to have the appellant court’s own consideration and views of the
evidence as a whole and its own decision thereon. It has the duty to rehear the case
and reconsider the materials before the Judge or Magistrate with such other materials as
it may have decided to admit. The appellant court must then make up its own mind
not disregarding the judgment appealed from but carefully weighing and considering it.
When the question arises which witness is to be believed rather than another and that
question turns on manner and demeanour, the appellant court must be guided by the
impression made on the Judge or magistrate who saw the witnesses but there may be other
circumstances, quite apart from manner and demeanour which show whether a statement
is credible or not which may warrant a court in diering from the Judge or Magistrate been
on a question of fact turning on the credibility of witnesses whom the appellate court has
https://new.kenyalaw.org/akn/ke/judgment/keca/2013/241/eng@2013-10-03 5
not seen. On second appeal, it becomes a question of law as to whether the rst appellant
court on approaching its task, applied or failed to apply such principles.”
13. We discern two points of law that are raised in this appeal for our determination. Firstly, was the
defence of provocation and self-defence available to the appellant? Secondly, what was the eect of the
observation by the trial court that the appellant appeared below the age of 18 years, an order was made
for him to be subjected to an age assessment but the prosecution failed to subject the appellant for a
medical examination to ascertain his age and mental status?
14. On the rst issue, we are satised that the Judge interrogated the Prosecution’s evidence against
the defence and correctly arrived at the conclusion that given the distance the appellant chased the
deceased, which was conrmed by PW 1 and PW 2, the appellant had ample time to recollect his
emotions and regain his self-control. Moreover while chasing the deceased he was followed by PW1
and PW2 who were screaming, the deceased was also screaming in distress. We also agree that the facts
of this case did not occasion a threat to the appellant as the deceased was running away screaming and
therefor the defence of self-defence was totally misplaced. See the case of Alipayo Lol s/o Acuda v R.,
EA CA Criminal Appeal No 121 of 1959 (unreported):
A killing may be manslaughter in spite of an intention to kill if the intention was formed
and executed in the heat of passion. For the defence of provocation reduces to manslaughter
what would otherwise be murder, that is to say, a killing with malice aforethought, one kind
of malice aforethought being an intention to kill. Section 187 of the Penal Code makes this
clear”.
15. Upon re-evaluation of the entire evidence, like the trial court we have no doubt in our minds that
the oence of murder was proved. The appeal on conviction is therefore without basis. However,
the sentence imposed on the appellant has caused us some anxiety as the age of appellant was not
ascertained and the court had remarked that he looked like he was under the age of 18 years. The death
sentence imposed on the appellant is not a legal sentence. When the appellant was arraigned in court
on 3rd March, 2009, before Emukule, J, this is what the learned Judge ordered:-
1. Appoint counsel for the accused (17 years mentally sound).
2. Be taken to Meru General Hospital for age assessment.
3. Accused remanded in custody at Meru GK Prison.
4. Plea on March 23, 2009.”
However, the appellant was not taken for age assessment. He appeared in court so many other times
and on November 23, 2010, he appeared before Lesiit, J, and she observed:
Accused appears below 18 years.”
16. Going by these observations by the Judges themselves, the appellant was probably a minor when he
committed the oence. A death sentence cannot be imposed on a person who is under the age of 18
years. The prosecution did not help matters as they failed not only to subject the appellant to medical
examination but also the age assessment. The way the matter was left, the trial court should have
followed the matter of age assessment so as to ensure a legal and appropriate sentence was passed. If
we have to go by the law governing the child oenders as per the provisions of Children Act 2001 a
death sentence or life imprisonment for that matter cannot be imposed on a person who is below the
age of 18 years.
https://new.kenyalaw.org/akn/ke/judgment/keca/2013/241/eng@2013-10-03 6
17. Under the Act, any person below the age of 18 is a child and if found guilty of an oence, he is supposed
to be sentenced according to the provisions of part XIII of the Children Act which makes provisions
on how a court should punish a child oender. section 191(1) of the Act, provides:
191. (1)In spite of the provisions of any other law and subject to this Act, where a child is tried for an
oence, and the court is satised as to his guilt, the court may deal with the case in one or more
of the followings ways –
a. by discharging the oender under section 35(1) of the Penal Code;
b. by discharging the oender on his entering into a recognisance, with or without
sureties;
c. by making a probation order against the oender under the provisions of the Probation
of Offenders Act;
d. by committing the oender to the care of a t person, whether a relative or not, or a
charitable children’s institution willing to undertake his care;
e. if the oender is above ten years and under fteen years of age, by ordering him to be
sent to a rehabilitation school suitable to his needs and attainments.
f. by ordering the oender to pay a ne, compensation or costs, or any of them;
g. in the case of a child who has attained the age of sixteen years dealing with him,
in accordance with any Act which provides for the establishment and regulation of
borstal institutions;
h. by placing the oender under the care of a qualied counsellor;
i. by ordering him to be placed in an educational institution or a vocational training
programme.
j. by ordering him to be placed in a probation hostel under provisions of the Probation
of Offenders Act;
k. by making a community service order; or
l. in any other lawful manner.”
18. The dilemma we face in this appeal was the ascertainment of the age of the appellant. Going by the
remarks by the Judge, he was about 17 years when he was rst arraigned in court in March, 2009, it is
now four years later, which means he is now over the age of 18 years, therefore, he is not suitable to be
subjected to any of the sentences provided for under the Children Act. The purposes of the sentences
provided for under the Children Act are meant to correct and rehabilitate a young oender, ie any
person below the age of 18 years while taking into account the overarching objective is the preservation
of the life of the child and his best interest. A death sentence or a life imprisonment are not provided
for but when dealing with an oender who has attained the age of 16 years, the court can sentence him
in any other lawful manner. The oence committed by the appellant is very serious, an innocent life
was lost, the appellant though probably a minor when he committed the oence must serve a custodial
sentence so that he can be brought to bear the weight and responsibility of his omission or lack of
judgment, by serving a custodial sentence. We are of the view that the appellant who is now of the age
of majority cannot be released to the society before he is helped to understand the consequences of his
mistakes, which can only happen after serving a custodial sentence.
https://new.kenyalaw.org/akn/ke/judgment/keca/2013/241/eng@2013-10-03 7
19. For the aforesaid reasons we are inclined to interfere with the death sentence imposed by the trial court
and substitute it with imprisonment for a period of 12 years. We allow the appeal to the extent that the
death sentence is substituted with twelve years. To that extent the appeal partially succeeds on sentence
but the appeal on conviction is dismissed.
DATED AT NYERI THIS 3RD DAY OF OCTOBER, 2013.
ALNASHIR VISRAM
............................................
JUDGE OF APPEAL
M. K. KOOME
............................................
JUDGE OF APPEAL
J. OTIENO – ODEK
............................................
JUDGE OF APPEAL
I certify that this is a true copy to the original.
Deputy Registrar
https://new.kenyalaw.org/akn/ke/judgment/keca/2013/241/eng@2013-10-03 8
