The place of motive in Kenyan jurisprudence

Motive may be taken into account in cases involving direct evidence, but it carries more weight in suits relying only on circumstantial evidence.

By Newton Arori

‘Motive’ explains why a person committed a crime. In Kenya, indeed in many jurisdictions, motive need not be proved to establish the guilt of an accused person. 

This principle is found under Section 9 of the Penal code which states: “unless otherwise expressly declared, the motive by which a person is induced to do or not to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.”

No case better illustrates this than that of ‘Republic v EKK’, where justice Lessit, while convicting the accused held, “in the instant case, motive against the accused was not proved. In fact, the evidence adduced painted a very positive picture of friendship and good neighbourliness between the family of the accused and the deceased. No motive was established for the attack. Notwithstanding that, I am satisfied that, as far as this case is concerned, failure to prove motive is not fatal to the prosecution case.”

Also, evidence of motive is not, in itself, sufficient to prove the commission of an offence by the person who possesses the motive. In the case of ‘Choge v Republic’, Kiptum Arap Choge and three others were accused of murdering Simon Tenai. According to the prosecution, assailants that Choge had hired on March 30 1982 used maize bags to block a road leading to Tenai’s farm with the plan of “arresting” him when he alighted his car to clear the road. The plot proceeded smoothly, but attempts to subdue Tenai and tie him up proved unsuccessful, as he turned out to be stronger than expected. Tenai broke free and began to run, and one of the assailants shot him. The police found him in a nearby bush with a bullet wound and in severe pain. As Tenai was about to board the police land rover, he pointed at Choge’s farm saying, “tumeuwawa na hii ghasia” (we have been killed by this crook). He was subsequently admitted at Kitale Hospital and later flown to Nairobi Hospital where he died. 

Choge faced a murder charge together with the assailants he had allegedly hired. At trial, there was evidence of a bad relationship between Choge and Tenai. According to the prosecution, this was proof that Choge had a motive to kill Tenai, that he had in fact masterminded his death. The court rejected the argument, holding “the evidence of ill feeling that was produced at the trial would have been corroborative had the other evidence been satisfactory, but this was not so.” Choge was acquitted. 

The evidence of ill feeling that was produced at the trial would have been corroborative had the other evidence been satisfactory, but this was not so.

Court

But motive is not completely irrelevant in criminal trials. The following cases may help shed light on its place in our jurisprudence. 

‘Republic v Nicholas Ngugi Bangwa’ (2015)

In this case, the accused faced the charge of murdering his wife, Ruth Wanjiru. A post mortem report showed that Ruth had been strangled. When put on his defence, Nicholas testified that Ruth had hanged herself. This was inconsistent with the facts, as the deceased could not have hanged herself in the sitting position in which she was found — the ropes around her neck had not suspended her body. As well, Nicholas had been seen walking to Ruth’s house and heard arguing with her the day she was killed. 

In convicting Nicholas, the court held that his motive for murdering Ruth was evident. The judge found that Nicholas and Ruth quarrelled every time he visited her. A neighbour testified that Nicholas had been heard accusing Ruth of being a prostitute. Therefore, the court found that the accused’s dissatisfaction with the deceased, especially regarding her faithfulness to him, was sufficient to form a motive to commit the offence. 

‘Republic v Richard Itweka Wahiti’ (2017)

Richard Itweka Wahiti faced the charge of murdering Elizabeth Nginyu, his employer. She was newly widowed but in a new relationship. Elizabeth lived in the same compound as Richard and a teenaged nephew. Richard had openly demonstrated animosity towards her employer’s lover through acts like deflating his car’s tires, a fact that Elizabeth had intimated to her relatives and close friends. 

One evening, Elizabeth’s nephew returned home from school and to his surprise, she was missing for the second day in a row. The mystery was compounded by the fact that her phone was in her house. The nephew called Elizabeth’s friend who in turn called other friends, and a search for her began. By this point, Richard had gone missing. Upon his return he was questioned on his employer’s whereabouts, which he claimed not to know. 

On the second day of the search, Elizabeth’s mutilated body was discovered in an incomplete house under construction within her compound. When Richard was examined, his inner shorts were found to have blood stains. DNA analysis would reveal that the blood on the shorts matched a sample taken from Elizabeth’s body. 

 Richard was found to have a case to answer. He   testified that Elizabeth’s relatives were dissatisfied with her romantic relationships, probably as a cover up, to suggest that the perpetrator was a relative of the deceased, rather than himself. 

The court took the element of motive to account in inferring Richard’s guilt. “From his own account, it seems that the accused took a keen interest in the love life of his employer. He did not specifically deny having damaged the motor vehicle of his employer’s boyfriend. The animosity he showed towards her male companions suggests that he was likely the one (not the relatives) aggrieved or jealous that the deceased was entertaining other men, rather than himself. It may be well that in a twisted way, the accused felt spurned and rejected out of the fact that the deceased widow had taken another person or persons as lovers and not himself.” Richard was convicted and accordingly sentenced. 

Notably, the cases of Nicholas Bangwa and Richard Wahiti dealt with circumstantial evidence, that is, no witness in either case actually saw the accused persons commit the murders. But this must not be taken to mean that motive is only relevant in cases relying solely on circumstantial evidence.  

In ‘Nzuki v Republic’, the accused had walked into a bar one night, pulled out a reveller and stabbed him to death. At trial, this fact was confirmed by eyewitnesses. The court, in finding that motive was relevant held: “It is not apparent why this happened at all…in the instant case, there was a complete absence of motive. No doubt the prosecution is not obliged to prove motive, but just as its presence can greatly strengthen the case for the prosecution, so its absence can weaken it.” In the end, the court set aside Nzuki’s murder conviction, replacing it with manslaughter. 

It is not apparent why this happened at all…in the instant case, there was a complete absence of motive. No doubt the prosecution is not obliged to prove motive, but just as its presence can greatly strengthen the case for the prosecution, so its absence can weaken it

Conclusion  

The Court of Appeal put it aptly in ‘Libambula v Republic’ thus, “Motive becomes an important element in the chain on presumptive proof where the case rests on purely circumstantial evidence.”

As we have seen from the Nzuki case, motive may still be taken into account in cases involving direct evidence, though it carries more weight in suits relying only on circumstantial evidence.