Crim App 75 of 99 David Rotich Kipngeno Tembur & 1 other v Republic
The bottom line
#Kenya's Court of Appeal confirmed that small inconsistencies in witness testimony do not undo a murder conviction when the core evidence is credible.
What this practically means
#Executive summary
#Key legal issues
#Whether conflicting police statements compel disbelief of a witness's trial testimony.
No. The trial Judge and assessors were entitled to believe the sworn testimonies of P.W.1 and P.W.2 notwithstanding that their earlier police statements did not name the appellants.
The police statements were recorded in English although the witnesses probably spoke to the police in Swahili or Kipsigis, so the Court could attach little importance to them. The statements were before the trial court, yet the Judge and assessors still believed the sworn testimonies. The alleged discrepancy was never put to P.W.1 in cross-examination, and the Court knew of no rule of law compelling disbelief of testimony that conflicts with a prior recorded statement.
Whether one witness's failure to see another at the scene negatives the other's presence.
No. P.W.2's statement that he did not see P.W.1 at the scene could not disprove P.W.1's presence or his account of the appellants' participation.
Both P.W.1 and P.W.2 gave clear evidence that they saw the two appellants assaulting the deceased. The Judge believed that evidence; all the assessors were unanimous as to the 2nd appellant's presence, and two agreed that the 1st appellant was present and participated. The Court found it inconceivable that P.W.1, a young man, could have dreamed out of thin air the small details he gave about each appellant's role in the assault and burning.
Whether P.W.1's explanation of how he learned the 2nd appellant's name was credible.
Yes. His account that he asked his uncle (P.W.2) the following day for the name of the brown, drunk man who set his mother ablaze was accepted as inherently probable.
P.W.1 had not known the 2nd appellant before the attack; he saw him at the scene and learned his name the next day from his uncle, P.W.2, before recording his police statement. Although not put as succinctly as a lawyer would have put it, the Court found nothing inherently improbable in this explanation, was not surprised that the Judge and assessors accepted it, and accepted it itself.
Whether the alleged inconsistency in the doctor's evidence as to the date of the post-mortem was fatal.
No. The complaint was baseless: the doctor's unchallenged evidence and the post-mortem form both showed the examination was conducted on 1st September 1995 at 12 noon.
Dr Timona Thomas Obura testified, without challenge even by way of cross-examination, that he carried out the post-mortem at 12 noon on 1st September 1995, and the post-mortem form produced as an exhibit recorded the same date and time. On closer scrutiny of the record the alleged inconsistency between his evidence in court and the report had no substance, so the medical proof of the cause of death was unimpaired.
Whether the murder charge was proved beyond reasonable doubt on the whole evidence.
Yes. The discrepancies were minor, of the kind expected from unsophisticated village witnesses, did not go to the root of the case, and the convictions were correct.
As a first appellate court, the Court independently re-examined the whole of the recorded evidence and, like the trial Judge and the assessors, found the prosecution witnesses basically honest and the charge proved beyond reasonable doubt. The discrepancies were those expected of unsophisticated village witnesses recalling events of some two years earlier and did not go to the root of the prosecution's case, so the appeals had to fail.
Legal principles established
#- A witness is not, as a matter of law, bound to be disbelieved merely because his or her statement recorded by the police conflicts with the evidence given in court.
- The failure of one witness to see another witness at the scene of crime does not disprove the presence of the witness allegedly not seen.
- Minor discrepancies in the evidence of unsophisticated witnesses which do not go to the root of the prosecution's case will not vitiate a conviction.
- On a first appeal the appellate court must independently examine the recorded evidence and satisfy itself that the charge was proved beyond reasonable doubt.
Court orders
#- 1.The appeals of the 1st and 2nd appellants against conviction and sentence are dismissed, the convictions for the murder of Jane Ngeny and the sentences of death thereby remaining undisturbed.
- On appeal from
- High Court at Kericho
- Jurisdiction invoked
- First appeal to the Court of Appeal against conviction and sentence from the High Court's original criminal jurisdiction; the judgment does not expressly cite the enabling constitutional or statutory provision.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Crim App 75 of 99 David Rotich Kipngeno Tembur & 1 other v Republic", Case Analysis (2000). Criminal Appeal 75 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/280/eng@2000-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.