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Thoya Kitsao Alias Katiba v. Republic

(2015) JELR 95140 (CA)

Court of Appeal  •  Criminal Appeal 123 of 2014  •  4 Dec 2015  •  Kenya

Coram
Milton Stephen Asike Makhandia, William Ouko, Kathurima M'inoti

Judgement

JUDGMENT OF THE COURT

In this first appeal, the appellant, Thoya Kitsao alias Katiba, who was convicted for the offence of murder and sentenced to death by Meoli, J. on 6th September 2014, challenges his conviction and sentence on three grounds; firstly that the trial court erred by convicting him on evidence that, due to its contradictions and inconsistencies, could not prove the offence beyond reasonable doubt; secondly by acting on his inadmissible confessions made to private citizens, contrary to sections 25 and 26 of the Evidence Act; and lastly by failing to consider his defence of provocation arising from his belief that the deceased was a witch.

According to the information upon which he was prosecuted and convicted, the appellant murdered Kambizi Mwaro Mbaya (deceased) on the night of 6th and 7th January 2012 at Majaoni Village, Tezo Location of Kilifi County. Both the deceased and the appellant were fellow villagers at Majaoni. At the material time, Maalim Omar Katana Salim (P…

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