MURDER TRIALS: ASSESSORS FROM THE ACCUSED’S COMMUNITY

By Michael Murungi

(This article was published in the Daily Nation newspaper on 17th Sept. 2007, pg 14 column 1)

Said Kupata Mwakombe v Republic [2007] eKLR
Court of Appeal at Mombasa (Appeal Judges Omolo, Githinji & Deverell)
July 20, 2007

In murder trials in Kenya, assessors, who are more like the members of a jury in certain criminal trials in the USA, are of special value in determining what action amounts to the defence of provocation They are also of great importance in assessing contradictory stories of what occurred in a particular case and they may be able to guide a court as to the manners and customs, and therefore to the truth of what the witnesses said. The Court of Appeal made these observations in a case in which Said Mwakombe was charged with the murder of his wife, Mapenzi Muoka.

Mwakombe hailed from the Giriama community of Malindi District in Coast Province, a community which has stuck to its customs and traditions. From the evidence adduced before the High Court, his wife had returned to her father’s home after a domestic disagreement. Two days later, Mwakombe had gone to the home apparently to seek a reconciliation but he had stabbed her to death ostensibly in a fit of fury when she declined to return to their matrimonial home. In his evidence, Mwakombe had recounted the frustrations he had encountered in his attempts to solve his marital problems and raised the defences of intoxication or drunkenness and self defence.

The trial was conducted with the aid of assessors who hailed from Nyanza province, two of whom were recorded as having formed the opinion that Mwakombe had committed the offence of murder. There was no record of what had become of the third assessor. Ultimately, the High Court had rejected Mwakombe’s defence, convicted him and sentenced him to death.

In its decision on Mwakombe’s appeal delivered on July 20, 2007, the Court of Appeal felt that it was only an assessor from Mwakombe’s community who could know the temperament of the community and who could assist the trial court to know whether the frustrations that Mwakombe had encountered in his efforts to secure his wife’s return to their matrimonial home were in the circumstances of this case such as to deprive him of the power of self-control and to induce him to stab her.

The Court of Appeal further noted that under section 269 of the Criminal Procedure Code, it is the magistrate holding a subordinate court of First Class “having jurisdiction in the province or district in which sessions are to be held” who summons persons to be selected as assessors by the presiding Judge. It is implicit from that provision, the Court observed, that the three assessors to be selected for a particular trial should come from the same district or province as the accused persons, making judicial notice of the fact that in Kenya a district is occupied predominately by one distinct community.

The Court of Appeal also found the trial had not been effectively conducted with the aid of assessors as there was no record of the reasons for their opinions and they had not specifically dealt with the defence of intoxication raised by Mwakombe. Moreover, there was no record of what had become of the third assessor. Ultimately, the Court observed that it remained uncertain what the outcome would have been if the trial had been conducted with assessors from Mwakombe’s community, and Mwakombe was entitled to the benefit of that uncertainty. Therefore, his appeal was allowed and his conviction for murder was reduced to a conviction for manslaughter for which he was sentenced to imprisonment for 20 years.