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Salim Tsofa Mkala v. Republic

(2018) JELR 95039 (CA)

Court of Appeal  •  Criminal Appeal 5 of 2017  •  11 Oct 2018  •  Kenya

Coram
Alnashir Ramazanali Magan Visram, Martha Karambu Koome, Wanjiru Karanja

Judgement

JUDGMENT OF THE COURT

This is a first appeal against Salim Tsofa Mkalla (the appellant’s) conviction for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The scope of our jurisdiction in such an appeal is well settled. We are required to carry out an exhaustive appraisal and re-evaluation of the evidence not merely to see whether it supports the findings and conclusions of the trial court; but we are bound to weigh conflicting evidence, make our own findings and draw our own independent conclusion. Nonetheless, we appreciate that we did not have the privilege of seeing the witnesses’ demeanour as they testified unlike the trial court. See Kiilu and Another v. R [2005] KLR 174.

2. The pertinent facts which gave rise to the appeal were that on 10th September, 2014 at around midday, Alfred Kesi Ngumbao (PW3), saw a crowd heading towards his neighbour’s homestead, one Tsofa Kalama Mkala (deceased), chanting that he was a witch. On the forefront was t…

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