https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1369

Sagaray & another v Republic (Criminal Application E019 & E020 of 2025 (Consolidated)) [2026] KECA 1369 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1369 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Criminal Application E019 & E020 of 2025 (Consolidated) PO Kiage, J Mohammed & GV Odunga, JJA July 10, 2026 Between Dwight Sagaray 1st Applicant Ahmed Mujivane Omido 2nd Applicant and Republic Respondent (Being an application for certification and leave to appeal to the Supreme Court from the Judgment of the Court of Appeal at Nairobi (Ali-Aroni, Achode and Mativo, JJA.) delivered on 7th March 2025 in Criminal Appeal No. E079 of 2003) Ruling 1.This ruling relates to two consolidated applications being Criminal Application Nos. E019 of 2025 and E020 of 2025 dated 20th and 21st March 2025 respectively. They seek, in substance, orders for the issuance of a certificate under Article 163 (4)(b) of the Constitution that the applicants’ intended appeals to the Supreme Court raise matters of general public importance and that it is in the interest of justice that leave be granted to lodge their appeals to the Supreme Court of Kenya against the judgment of this Court delivered on 7th March 2025 in Nairobi Criminal Appeal No. E079 of 2023. By that judgement, this Court dismissed the applicants’ appeal against their conviction and sentence by the High Court. 2.The appellants in Criminal Appeal No. E079 of 2023, Dwight Sagaray and Ahmed Mujivane Omido, and three others, one of whom was acquitted by the trial court, were charged before the High Court, Nairobi with the offence of murder, contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence were that, on 26th and 27th July, 2012, at the residence of the Venezuelan ambassador in Runda Estate, within Nairobi County, they jointly murdered Olga Fonseca. The body of the deceased, who arrived in Kenya two weeks before her untimely death as the new ambassador for Venezuela, was discovered dead when the security company manning the ambassador’s residence went to change the day guard. At the time of the incident, the 1st applicant was the 1st secretary at the said Embassy. 3.At the trial, the court identified the following issues for determination: whether the 1st applicant enjoyed diplomatic immunity; whether the death of the deceased and the cause thereof was proved; whether the prosecution proved motive on the part of the 1st applicant; whether the court properly admitted the confession statement of the 4th appellant; whether the said confession linked the appellants to the offence; whether the accused persons before the trial court were positively identified as the persons who caused the unlawful death of the deceased and acted with common intention; and whether the said accused persons acted with malice aforethought. 4.As was appreciated by this Court, the prosecution case was mainly based on circumstantial evidence. Apart from the testimony of PW1 & PW16, implicating one Mohammed, a suspect who was at large, there was no direct evidence of who may have killed the deceased. Nevertheless, the trial court found that the prosecution had proved the charge of murder against four of the five accused persons including the applicants, convicted them of the offence and sentenced each of them to 20 years’ imprisonment. The 5th accused was acquitted. The 1st to the 4th accused person preferred an appeal to this Court against the said decision, which appeal, as we have stated above was dismissed by this Court, which decision the applicants intend to appeal to the Supreme Court. 5.As stated above, one of the issues raised at the trial was the question of the 1st applicant’s diplomatic immunity. The trial court was of the view that since there was clear communication between Kenya and Venezuela and that the 1st appellant had been stripped of his diplomatic status as 1st secretary to the Venezuelan Embassy and under Article 43(a) of the Vienna Convention on Diplomatic Relations 1961 (the Vienna Convention), he could no longer enjoy diplomatic powers and privileges, including immunity. Therefore, there was no bar to his prosecution, and he was properly arraigned before the court to face trial alongside his co- accused. 6.At the hearing of the appeal preferred by the 1st to the 4th accused person, as the 1st to the 4th appellants, this Court identified the issues falling for determination as: whether or not the 1st appellant enjoyed diplomatic immunity and could be tried for murder; whether the prosecution proved the ingredients of the offence of murder against the four appellants beyond all reasonable doubt; whether the retracted confession of the 4th appellant was properly admitted in the evidence; and whether the conviction and sentence were safe. 7.This Court, in its judgement found: there was communication between Kenya and Venezuela and that the communication was twofold, cancellation of the diplomatic passport and termination of the 1st applicant’s service in Kenya; that based on the events following the killing of the deceased and the suspicion that the 1st applicant was involved, the 1st applicant was stripped of his diplomatic status by the sending country hence his mission to Kenya was terminated and his diplomatic passport cancelled; that the termination of the 1st applicant’s services at the mission and cancellation of his diplomatic status meant that he no longer enjoyed the diplomatic status that goes with diplomatic immunity; and that there was waiver of the 1st applicant’s immunity by Venezuela, allowing Kenya to prosecute him for the offence of murder. 8.The Court further found that it was safe for the trial court to have admitted the 4th appellant’s confession in evidence. Accordingly, the 1st applicant was properly charged and tried. In the Court’s view, the circumstances of the case, taken cumulatively, formed a chain that left no doubt that the appellants before the Court were involved in hatching, planning and executing the murder together; and that the appellants received a very lenient sentence. 9.The applications before us were supported by the affidavits sworn by Paul Maingi Musyimi and Dr John Khaminwa, the respective advocates for the 1st and 2nd applicants, in which they averred: that the 1st applicant was arraigned in the High Court to take a plea on the charge of the murder of the deceased on the basis of a Non-Official Translation of a Spanish Note Verbal B dated 27th July 2012 and referenced I.DD.3-No. 181 from the Ministry of the Popular Power for Foreign Relations of Venezuela addressed to the Kenyan Ministry of Foreign Affairs; that both the High Court and this Court correctly interpreted the effect of the Non-Official Translation as being that the applicant’s immunity was not waived but ceased to exist the moment his government (Venezuela) terminated his official duties and position; that both the High Court and this Court conflated the legal effects of a waiver on the one hand and termination of diplomatic functions and/or cancellation of a diplomatic passport on the other hand, treating them as if they were similar contrary to the precedents by national and international courts and the travaux preparatoires (preparatory works) of Article 32(2) of the Vienna Convention that waiver must always be express to mean a clear, unambiguous statement from the sending State agreeing to subject the diplomat to the host State’s jurisdiction; that mere cancellation of a diplomatic passport or termination of the function of a diplomat does not automatically amount to a waiver of immunity by the sending State because the immunity belongs to the State and not the diplomat; that consistent State practice confirms that if a sending State’s response to a request to waive immunity merely cancels the passport and functions without addressing the immunity question directly, the response is to be perceived as sidestepping the request rather than granting it; that while the express waiver of immunity under Article 32(2) of the Vienna Convention immediately subjects a diplomat to the jurisdiction of the sending State regarding the past conduct informing the waiver, the termination of a diplomat’s functions and/or cancellation of a diplomatic passport ends the immunity after the diplomat leaves the host country or after a reasonable period in the case of non-official acts; that neither of the two courts appreciated the fact that where the sending State, instead of waiving immunity, merely terminates/cancels the diplomat’s functions and/or passport, and the diplomat remains in the host State, the host State must, before exercising jurisdiction, as a priori (on the expiry of a reasonable period) satisfy itself that the conduct in question is not covered by the residuary immunity of a diplomat under Article 39(2) of the Convention that continues to protect a diplomat’s official acts even after a diplomatic function has come to an end; and that the Supreme Court has clarified that any act of an official enjoying immunity committed in the official working premises and during working official hours is conduct committed during the exercise of the official’s function and therefore covered by immunity not only during his holding of the post but also after he ceases holding it. 10.The other averments were to the effect: that direct and/or circumstantial evidence on when, where and how the applicant was involved in the hatching, planning and execution of the murder of the deceased, which was never led in the instant case, was necessary and critical for establishing whether the High Court could exercise criminal jurisdiction over the applicants in the first place and convict them for the murder of the deceased; that the conclusions on the evidence on record in both judgments of the trial court and this Court raise a question of general public importance on whether, to the extent that the findings of the applicants’ guilt was not based on direct or circumstantial evidence demonstrating when, how and where he was involved in the hatching, planning and executing the deceased’s murder, both courts introduced a novel standard of proof of guilt based on motive; that the findings by both courts violated the applicants’ right to fair trial under Article 50(2) of the Constitution and occasioned a miscarriage of justice which act has a bearing on public interest and the criminal justice system in Kenya; that the Supreme Court has established that it is obliged , as a matter of principle to establish whether the conclusions arrived at by this Court are supported by the evidence on record; and that since the conclusions arrived at by this Court and the High Court significantly affect the public interest and the criminal justice system in Kenya, it is of great public importance and in the best interest of justice that the Supreme Court has a chance to review the conclusions on appeal. 11.According to the applicants, their intended appeals qualify to be of general public importance as they intend to ask the Supreme Court to settle with finality several critical questions on diplomatic immunity, its waiver and the concept of Residuary Immunity, the contours of the common intention principle and the place of motive in criminal law. They contend that the judgements have a fundamental bearing for future cases on waiver of immunity vis-à-vis cancellation of diplomatic passports; waiver of immunity vis-à-vis termination of diplomatic function; residuary immunity and its application to diplomats under Article 39 of the Vienna Convention; what constitutes express waiver of immunity under Article 32(1) and (2) of the Vienna Convention; and the contours of the common intention principle and the place of motive in criminal law. 12.In this regard the questions identified for determination by the Supreme Court include:a.what evidence should a Kenyan court, sitting as a receiving State’s court, require as proof that the sending State has waived immunity?b.can a verbatim non-official translation of a sending state note verbal be adduced in a receiving state court as valid evidence of immunity? Does such a note meet the threshold of an express waiver under Article 32 of the VCDR?c.what constitutes express waiver of immunity cancellation of a diplomatic passport and termination of diplomatic functions without an express waiver be construed as a waiver of immunity?d.how should the receiving State’s courts deal with a challenge on the validity of a waiver especially challenges regarding ambiguities in non-official translations of sending State Notes and Letters? Did the Superior Courts handle these challenges appropriately? What should be the standard going forward? And did the Supreme Court’s binding precedent in the case of Karen Njeri Kandie v Alssane Ba & Another [2017] KESC 13 (KLR), bar the superior courts from exercising jurisdiction over the 1st applicant by reason of residuary immunity under Article 39(2) VCDR, which has the force of law in Kenya by virtue of the First Schedule (ss. 4, 10) of the Privileges and Immunities Act?e.whether the “must have known” standard applied by both this Court and the High Court against the applicants is an appropriate standard for establishing guilt beyond a reasonable doubt in criminal cases and whether the two courts elevated the place of motive in criminal cases by suggesting that a powerful motive is synonymous with intent in the absence of direct evidence of malicef.whether an accused person can be convicted for having a joint common intention with a key co-conspirator who is at large, yet there is no direct evidence demonstrating the common intention between them other than an alleged “very close relationship” between the accused and the suspect at large. 13.The applicants contend that a challenge relating to a first-instance court’s and a first appellate court’s apparent, glaring, patent and obvious misreading, disregarding and omission of the evidence raises a matter of general public importance in so far as it rests on Article 50(2) of the Constitution. It is further contended that it is of general importance for the court to pronounce itself on matters of confession, especially where it is alleged that a person has made a confession and pleads not guilty in respect of the charge facing him of which he allegedly confessed. 14.The applications were heard on this Court’s virtual platform on 16th February 2026 when learned counsel Mr. Mangi Musyimi appeared with Mr Kenson Muteria for the 1st applicant. Learned Counsel, Dr John Khaminwa appeared with learned counsel, Mr Olewe, for the 2nd applicant. Learned counsel, Ms Njoki Keng’aara, was present for the respondent. The applicants were also present from Kamiti Maximum Prison. Learned counsel relied on their written submissions which they briefly highlighted. 15.On behalf of the applicants, the averments in the supporting affidavits were reiterated and it was submitted that the applications are merited as the applicants’ intended appeals raise fundamental questions of general public importance concerning: the interpretation and application of the diplomatic immunity under the Vienna Convention; the proper application of the doctrine of joint enterprise and common intention particularly in circumstances where a principal co-perpetrator is at large and the alleged participation or common intention of a secondary part is solely based on inference rather than actual proof; and a novel and weighty constitutional and international law issue on the effect of diplomatic immunity on criminal liability premised on inference of common intention or joint enterprise. 16.According to the applicants, given the absolute nature of diplomatic immunity in respect of official acts, as recognised in the Supreme Court’s prevailing jurisprudence, a finding of common intention based purely on inference would directly undermine that jurisprudence by effectively criminalising acts that, by established Supreme Court standards, fall within the scope of official diplomatic functions. This fundamental question, it is contended, warrants the Supreme Court’s authoritative determination. 17.The applicants submitted that the applications satisfy the principles set out in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone (2013) eKLR; [2013] KESC 11 (KLR) to the extent that the questions raised: transcend the applicants’ circumstances and have a significant bearing on the public interest in so far as they relate to diplomatic immunity, its waiver and the concept of residuary immunity, the contours of the common intention principle and the place of motive in criminal law; will inform Kenya’s State practice on the interpretation of the Convention, especially in light of the fact that the interpretation so far pronounced by the High Court and this Court is fatally at odds with consistent State Practice, several national and international court’s precedents as well as the travaux preparatoires of Articles 32(2), 39(2) and 43 of the Vienna Convention; affect several accused persons who will likely be convicted for the most serious of crimes based on dubious evidence of participation in joint criminal activities contrary to the safeguards of a fair trial guaranteed under Article 50(c) of the Constitution especially the presumption of innocence because this Court’s judgement effectively establishes a novel low threshold for guilt, liability and culpability of alleged accessories; are destined to continually engage the workings of the judicial organs whenever cases on diplomatic immunity and guilt by association arise, and unless the Supreme Court settles the questions in finality, the precedent established in this Court’s Judgment poses a grave danger to the fair trial rights of several accused persons under Article 50(2); and have a bearing on the proper conduct of the administration of justice and the guarantee of a fair trial under Article 50(2), particularly the right to be presumed innocent. 18.In support of the submissions, the applicants relied on: The Queen (on the Application of Charlotte Charles and Tim Dunn) v The Secretary of State for Foreign and Commonwealth Affairs [2020] EWHC 3185 (Admin) and Knab v Republic of Georgia 97-CV-03118 (TPH) DC, 2 May 1998) to highlight that under Article 32(2) of the Convention, the waiver must be express; Karen Njeri Kandie v Alssane Ba & Another (supra) for the position that any act of an official enjoying immunity committed in the official working premises and during working official hours is conduct committed during the exercise of the official’s function and therefore covered by immunity not only during his holding of the post but also after he ceases holding it; R v Joge [2016] UKSC 8 where the UK Supreme Court, while abolishing and replacing over 30 years jurisprudence on the joint enterprise liability in the UK, emphasised that guilt of crime by mere association has no proper part in the common law; Vishwajeet Kerba Masalkar v The State of Maharashtra 2024 INSC 788 for the position that there is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” and that it is a primary principle that the accused “must be” and not merely “may be” guilty before a court can convict and every possible hypothesis except the guilt of the accused has to be ruled out; Janmohammed (SC) (Suing as the Executrix of the Estate of the Late H. E. Daniel Toroitich Arap Moi) & Another v District Land Registrar Uasin Gishu &b 4 Others [2024] KESC 39 (KLR) that the Supreme Court is obliged as a matter of principle to establish whether the conclusions arrived at by this Court are supported by the evidence on record; and Supreme Court of India’s decision in Gauri Shankar Nath Tiwary v The State of Bihar (Now Jharkhand] Cr, (D.B.) No. 116 of 1995 (R) with Cr. (D.B.) No. 117 of 1995 (R) that motive, however strong, cannot be basis for holding a person guilty of murder, unless there is other corroborative evidence. 19.According to the applicants, the Supreme Court’s determination will also provide essential jurisprudential guidance on the proper evidentiary threshold for convictions founded on inference and common intention. A definitive pronouncement by the Supreme Court will therefore promote coherence, predictability, and constitutional fidelity in the administration of criminal justice. In the applicants’ view, this Court’s judgement: effectively creates a potentially unsettling and confusing precedent by which several accused persons will be convicted for the most serious of crimes based on “guilty by association” in joint criminal activities contrary to the safeguards of a fair trial guaranteed under Article 50(2) of the Constitution, notably the presumption of innocence; and unsettles established precedent that suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt and motive, however strong, cannot be basis for holding a person guilty of murder, unless there is other corroborative evidence. 20.It was further contended that both the trial court and this Court failed to make a determination on the 2nd applicant’s alibi defence. 21.We have considered the submissions made by learned counsel in support of the instant application. The application is brought pursuant to the provisions of Article 163(4) of the Constitution which provides that appeals shall lie from the Court of Appeal to the Supreme Court as of right in any case involving the interpretation or application of the Constitution; and in any other case where the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved. The Supreme Court’s guidance is that matters of general public importance are those that inter alia, raise a substantial point of law, or occasion a state of uncertainty in the law or arise from contradictory precedents, or will affect a considerable number of persons in general, or as litigants. In arriving at our determination, we must be careful not to wade into the merits of the intended appeal to the Supreme Court as was appreciated by this Court in Mwambeja Ranching Company Ltd & another v Kenya National Capital Corporation [2023] KECA 660 (KLR) where it was held that:“This Court has the duty to ensure that the case does not involve a mere question of law, but a substantial question of law. Hence, an applicant must satisfy this test to assume jurisdiction under Article 164 (4) of the Constitution. (See Supreme Court of India in Chunila v Mehta & Sons Ltd v Century SPG & Manufacturing Co Ltd 1962 AIR 1314, 1962 SCR Supl. (3) 549).71.To qualify as a question of law arising from the case, there must have been a foundation laid in the pleadings, the question should emerge from the findings of facts arrived at by the court so as to make it necessary to determine that question of law and arrive at a just and proper decision. If the question is settled by the highest court, or if the general principles to be applied in determining the question are well settled, and there remains the question as to the application of those principles, or that the plea raised is palpably absurd, the question ought not to be viewed as a substantial question of law.” 22.The issue for determination in this application therefore is whether the intended appeal to the Supreme Court raises a matter of general public importance. The Supreme Court set the parameters/principles governing the determination of a matter as one of general public importance in the case of Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone (supra) as follows:i.“for a case to be certified as one involving a matter of general public importance, the intending appellant must satisfy the Court that the issue to be canvassed on appeal is on the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest;ii.where the matter in respect of which certification is sought raises a point of law, the intending appellant must demonstrate that such a point is a substantial one, the determination of which will have a significant bearing on the public interest;iii.such question or questions of law must have arisen in the Court or Courts below, and must have been the subject of judicial determination;iv.where the application for certification has been occasioned by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court may either resolve the uncertainty, as it may determine, or refer the matter to the Court of Appeal for its determination;v.mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts, is not a proper basis for granting certification for an appeal to the Supreme Court; the matter to be certified for a final appeal in the Supreme Court, must still fall within the terms of Article 163 (4)(b) of the Constitution;vi.the intending applicant has an obligation to identify and concisely set out the specific elements of “general public importance” which he or she attributes to the matter for which certification is sought;vii.determinations of fact in contests between parties are not, by themselves, a basis for granting certification for an appeal before the Supreme Court.” 23.In this case we have considered the issues that the applicants intend to raise before the Supreme Court such as what constitutes waiver of diplomatic immunity under the Vienna Convention and whether the Non-Official Translation of a Spanish Note Verbal that was issued by the State of Venezuela was merely a termination of cancellation of the diplomatic passport and termination of the 1st applicant’s service in Kenya or a waiver of his diplomatic immunity so as to pave way for his criminal prosecution. There are also other issues such as whether motive alone without either direct evidence or circumstantial evidence is sufficient to justify criminal liability. Apart from that the 2nd respondent contends that his alibi defence was not considered by either the trial court or this Court. The Supreme Court in Janmohammed (SC) (Suing as the Executrix of the Estate of the Late H. E. Daniel Toroitich Arap Moi) & Another v District Land Registrar Uasin Gishu &b 4 Others (supra) stated that:“At this stage, all we can do is to re-state without more, the well-established principle of appellate practice and procedure that, on a first appeal to the Court of Appeal, unless the appeal is on a point of law, the latter is duty bound where circumstances require, to consider and re- evaluate the evidence on record before arriving at a determination...This then obliges us to establish whether the appellate court arrived at the conclusions it did on the basis of the evidence on record. In so doing, we remain cognisant of the caution that at this stage, ours is not to re- calibrate the evidence but simply to establish whether the conclusions arrived at by the Court of Appeal are supported by the evidence on record.” 24.In our view the matters which the applicants intend to raise before the Supreme Court raise a substantial point of law on diplomatic immunity; seek to settle a state of uncertainty in the law regarding the standard of proof in criminal cases where there is neither direct nor circumstantial evidence but where the allegation is that of motive; and the effect of failure by the two courts to address themselves to a pertinent defence raised by the 2nd applicant. 25.In our view that these applications meet the test set out in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone (supra) and warrants certification. We accordingly find the applications Nos. E019 of 2025 and E020 of 2025 merited. We hereby issue a certificate under Article 163(4)(b) of the Constitution that the applicants’ intended appeals to the Supreme Court raise matters of general public importance and we grant leave to the applicants to lodge their appeals to the Supreme Court against the judgment of this Court delivered on 7th March 2025 in Nairobi Criminal Appeal No. E079 of 2023. 26.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JULY, 2026P. O. KIAGE.................................JUDGE OF APPEALJAMILA MOHAMMED.................................JUDGE OF APPEALG. V. ODUNGA.................................JUDGE OF APPEALI certify that this is the signed true copy of the originalDeputy Registrar