The High Court, sitting at Machakos in Criminal Appeal 81 of 2019- Martin Mutua Nzuki v Republic, rendered quite an interesting decision that potentially heralds an unwelcome trend of watering down the robust evidential safeguards that are a hallmark of the Kenyan criminal justice system. The Court upheld the appellant’s conviction and imprisonment for 25 years for causing grievous harm contrary to Section 234 of the Penal Code based on purely circumstantial evidence and reliance on principles of law primarily invoked in murder cases. The decision raises major repercussions for the law of evidence in Kenya and demonstrates the importance of legal representation in criminal proceedings.
The prosecution’s case was that the appellant caused unlawful grievous harm on one Anthony Muli Kioko on 9th November 2016 following a confrontation at the appellant’s bar. Kioko, who was a boyfriend to one of the barmaids, was in the company of a lady called Sengeli and Mrefu, her boyfriend. The appellant bought Sengeli a drink, an act that irked Kioko and a bitter exchange ensued between them. It was at this point that the appellant pulled Kioko outside, but none of the prosecution witnesses saw what happened when they went out of the bar.
Kioko was found by his mother the next morning under a tree, unconscious and with a swollen forehead. He was rushed to Kathiani then to Kenyatta Hospitals where he lay in a coma and in ICU for 3 months. Upon recovery, he informed three different people, his mother and two other individuals, that it was the appellant who had hit him on the forehead with a metal rod on the night of the altercation outside the bar. Although he was later discharged, he developed severe complications occasioned by the head surgery, thus, lost his ability to walk. He also contracted pneumonia that led to his demise in April 2018, just a week after the appellant had been arrested and charged to causing him grievous harm in Kangundo SPMCC No 614 of 2018-Republic v Martin Mutua Nzuki.
These cases, both at the trial court and on appeal, raise various concerns. The appellant was found guilty and convicted to jail for 25 years based on impeachable and purely circumstantial evidence. First, none of the prosecution witnesses positively identified the appellant as having assaulted Kioko on the night of the alleged incident. Only the first and second prosecution witnesses testified to have been at the bar and they only saw the appellant eject Kioko from the bar, not assaulting him. The Court held that the appellant did not controvert evidence that he was at the scene, yet it was only logical that, being his bar, the appellant would typically be present and reserved the right to admission and could eject anyone occasioning a breach of peace, like Kioko did. Thus, there is no positive identification of the commission of the alleged offence.
Second, there in a viable, plausible explanation for how the injuries that are subject of the charge against the appellant might have befallen Kioko. The aspect of intoxication raised by the appellant, albeit belatedly, presents an alternative theory to how Kioko got injured. Being intoxicated, it is possible that he may have fallen and hit his forehead after being thrown out of the bar, and not necessarily immediately or as a consequence of the appellant’s act of ejection. Further, there is no explanation for why those who were accompanying him, Sengeli and Mrefu, or the bar maid who is on record as Kioko’s girlfriend, were never called as witnesses and the appellate Court seemingly dismissed the potential probative value of their testimony by stating that “there is no magic in having a multitude of witnesses yet there is evidence that proved beyond reasonable doubt that identified the appellant as the perpetrator.” We humbly submit that, in the prevailing circumstances, the beyond reasonable doubt threshold was not attained.
The High Court in Gerald Ndoho Munjuga v R[1], in an elaborate exposition on this evidentiary threshold, expressed itself as follows:
“It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty.”
Kioko’s untimely death, just a week after the appellant’s arraignment, posed two major repercussions that the Honourable Courts ought to have taken into account in making their respective determinations. Firstly, as noted, there was no direct evidence linking the appellant with the alleged assault causing grievous harm. Consequently, it was imperative to proceed with utmost caution. Secondly, although the appellant was charged with assault causing grievous harm, his trial and appeal proceeded as if it was one for murder. Both the trial and appellate courts anchored the circumstantial evidence relied to make their findings of guilty and conviction of the accused on principles of law primarily invoked in murder cases.
The appellate court first relied on the “last seen doctrine with”, a principle of criminal law that is often considered by Kenyan courts in reference to comparative jurisprudence from India and Nigeria. The Court correctly captured the essence of this principle; that it creates a rebuttable presumption that the last person seen with a deceased person bears responsibility for their death, unless they can explain how the deceased died. Accordingly, it found that the grievous harm occasioned to Kioko was attributable to the appellant because he was allegedly the last person seen ejecting him from the bar the previous night before he was found injured and unconscious.
The Court also correctly noted that the existence of corroborative evidence is one of the prerequisites for the “last seen with” doctrine to apply. Hence, in satisfaction of this requirement for corroboration, the Court further invoked the dying declaration exception to the rule on the admissibility of hearsay as evidence[2] and relied on Kioko’s identification of the appellant as the perpetrator to three prosecution witnesses as adequate and cogent evidence of the accused’s culpability.
In adopting this approach, we opine that the Honourable Court erred in various respects. Firstly, as noted above, both the trial and the appellate courts proceeded as if the appellant was on trial for murder, rather than causing grievous harm. There are numerous references to Kioko as the deceased throughout the proceedings, an inevitable reality of the situation, but the possibility that conducting the trial and subsequent appeal against the backdrop of the victim’s death influenced the proceedings in a way that was arguably more prejudicial to the appellant cannot be overlooked. Thus, it is arguable that he was seemingly tried and convicted for a different offence than the one he had been charged, that is, perceived as a murderer although arraigned grievous harm but without making the necessary amendments to the charge sheet.
Secondly, in applying the “last seen with” doctrine to the circumstances, the Court overlooked another element also as critical as the need for corroboration: the temporal link, in that, “unless there is proximity in the time of the last seen and the time of death, the evidence cannot be taken into consideration to convict the accused.”[3]
Thirdly, by relying on Kioko’s dying declaration as corroboration for the “last seen with” doctrine, the Honourable Court overlooked the timeless rule that a dying declaration, as a matter of practice, should be corroborated. Therefore, because it also needs to be corroborated, it cannot corroborate other evidence.[4]
Considering the implications on the appellant’s liberty, the Honourable Court ought to have erred on the side of caution in the circumstances. However, noting that the appellants seems to have been unrepresented in the proceedings, this decision is demonstrative of the need for persons facing criminal charges to engage the services of qualified and competent advocates to look out for their interests in such matters.
[1] [2016] eKLR, Criminal Appeal No 213 of 2011 (Nyeri HC).
[2] Evidence Act, S. 33 (a).
[3] Gautam Kamlakar Pardeshi & Anor v The State of Maharashtra, [2022] Latest Caselaw 4253 Bom (Criminal Appeal No. 224 of 2018) (Bombay HC).
[4] Republic v Benard Oliech Ooko, [2014] eKLR, (Criminal Case No. 34 of 2011) (Homa Bay HC)