When murder is the case

Minister of Justice and Constitutional Development and Others v Prince; National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton and Others [2018] ZACC 30

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By Olukoye Michael

“Whatever you say to the police can and will be misconstrued to support the prosecution. So when in doubt, keep your mouth shut!” – Annalise Keating, How to Get Away with Murder

Murder. You have probably already condemned this article and its author to the seventh circle of Dante’s hell for writing this. Well, too bad. If you ask ‘Wanjiku’ what she thinks of lawyers, more often than not the answer will be along the lines of “they are bad people who defend murderers!” Having been condemned, tried and found guilty by the masses, it is only proper that I – we – commit the crime we have been accused of. So, buckle up and let me teach you how to get away with murder!

Let me point out that murder in the context of this article is murder in the proper sense – as captured under the Penal Code, where one person with malice aforethought causes the death of another. Two things are pertinent here: you will get convicted of murder if the prosecution proves two essentials: act and intent. Two, proof of anything placed before court has to be beyond reasonable doubt. 

The standard of proof “beyond reasonable doubt” means “the accused is entitled to a benefit of doubt as a matter of right…that the state of the case, after the entire comparison and consideration of the evidence, leaves the mind of the court in such condition that it cannot say it feels an abiding conviction to moral certainty of the truth of the charge (Philip Muiruri Ndaruga v Republic [2016] eKLR). Simply put, “may have”, “possibly could have” and any other standard that borders on a balance of probabilities is not good enough. Certainty is what the law demands. It is important to grasp this as it’s the overarching principle that governs proof of any claim by the prosecution, and more often than not, what differentiates successful convictions from acquittals. 

Let’s digress a bit and explain an equally important point: burden of proof. This is simply a question of who should prove that you committed the offence. In criminal law, this burden lies with the state.

Having disposed of the two preliminaries, let us get to the substance of getting you off a murder charge.   

Rule One: don’t be the suspect. Don’t be the one to whom all the clues point at –  the greedy spouse, jealous friend, unsatisfied employee, etcetera. If you cannot avoid being a suspect by default, avoid being a suspect by fact. Do not be seen anywhere near the scene of the crime. If you are seen, make sure it is in such conditions that it cannot be said with certainty that it was you. For instance, commit your offence in the dead of the night in poor light conditions, or such that the witness only had a fleeting glance that it was not possible to have memorised your face (Titus Wambua v Republic [2016] eKLR). Similarly, discredit any witnesses’ ability to credibly identify you; for instance, if the witnesses are inebriated or with poor eyesight (James Kienji Maina and another v Republic [2007] eKLR).

If you cannot avoid being a suspect, worry not. 

Rule Two: exercise your right to refuse to give self-incriminating evidence. Don’t engage in a frivolous exercise of writing statements with the police. Remember, it is not your burden to prove anything. Whatever you say to the police can and will be misconstrued to support the prosecution. So when in doubt, keep your mouth shut! This extends to offering any piece of evidence to the police, such as DNA samples, or allowing searches to your person, premises or possession without a warrant. Typical of Kenyan police, they will search you, or your premises without a warrant. When this happens, see rule three.

Rule Three: take note of every police process from being accused to court. If the police identify you by an identification parade, note how it is conducted. If a search is done without a warrant, take note. In fact, during such a search, pray that they discover all the evidence against you. If they want your DNA, make it known to them that you object, such that if anything is done or taken, it is against your consent (Samson Mumo Mutinda v Inspector General National Police Service and 4 others [2014] eKLR). When being interrogated take note of the name and rank of the interrogating officer. But similarly do not speak. Keep quiet, smile and wait for court.

The reason for this is a doctrine called “the fruits of a poisoned tree”. It simply means that any evidence obtained by breaking the law cannot be used in a trial. The processes mentioned in the preceding paragraph are especially notorious as the police sometimes overlook due process during investigations. Therefore, when evidence arising from such faulty procedures is presented in court, the court has no way of ascertaining that it is genuine and not ‘planted’. Even if it is genuine, courts will frown upon use of evidence obtained by violating a person’s rights (Antony Muriithi v O.C.S Meru Police Station and 2 others [2012] eKLR).

Rule Four: during the prosecution’s case, question every crucial thing. First on the list should be how they arrived at you as a suspect which we have already dealt with. Here, let us focus on act and intent (Roba Galma Wario v Republic [2015] eKLR). More often than not, the prosecution will attempt to prove this based on circumstantial evidence. This will be by attempting to show that the facts present though not concrete proof of the crime, where they create an inference of guilt so strong such that the inculpatory facts must be incompatible with the innocence of the accused person (Republic v Stanley Muthike Tiire [2018] eKLR).

…One, only when the accused has been put on the defence that it will become necessary to plead such a defense. Two, being a defence, the burden shifts to the accused.

To prove the ‘act’ (actus reus), the prosecution has to prove: (i) the fact and cause of death of the deceased, and (ii) that the death of the deceased was the direct consequence of an unlawful act or omission on the part of the accused… (Republic v Dorothy Awuor Juma [2018] eKLR). Proof of fact of death is usually non-contentious but the cause of death must be by an autopsy conducted by the State; insist upon it. It therefore follows that the prosecution will have to prove that your acts WERE the cause of death as per the autopsy. The said acts should have DIRECTLY caused such death (Republic v Charles Mwaura and another [2016] eKLR).

This being challenged, the next stage becomes to challenge the intent. The prosecution will set out to prove that the accused person had no ‘lawful cause’ to commit the offence. This brings to mind the question of self-defence. The prevailing standard on this question is a test of “reasonableness”. This means the “killing of a person can only be justified and excusable where the action of the accused which caused the death was in the course of averting a felonious attack and no greater force than necessary was applied for that purpose. The accused has to prove on a balance of probabilities that he was in immediate danger arising from a sudden and serious attack.” (Republic v Henry Abisa Auko [2018] eKLR)

Two things have to be made abundantly clear: One is that only when the accused has been put on the defence that it will become necessary to plead such a defense. Two, being a defence, the burden shifts to the accused. However, the legal standard for this defence is much lower than that which the prosecution faces. The standard of “on a balance of probabilities” simply means that it is more likely than not that A happened and not B.

At this point I must issue a disclaimer. The entirety of the thoughts expressed herein are neither done with an intent or attempt to incite, motivate or otherwise encourage commission of the offence of murder, nor to serve as professional advice creating legal obligations between the author and anyone who relies in them to their detriment. 

This article, instead, is about legal awareness – to those whose cases have stagnated, those who couldn’t get convictions against people who wronged them, and by and large the jury in every person that condemns any accused person of murder and assigns guilt to them. So when you sit next, you the people of the juries in the streets corners deliberating cases, while burdened to entertain fellow homo sapiens, you the juries in the entertainment joints deliberating cases over excess and debauchery, you the juries in social media deliberating your cases with the burden of attracting likes and retweets, and the rest of you whom I cannot mention, think of what has been expressed in this article. Let your deliberations be guided by fact and law. (

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