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Court of AppealDismissedCriminal Appeal No. 183 of 2000

Joseph Cheruiyot Langat v Republic [2002] KECA 297 (KLR)

Court of Appeal of Kenya
15 March 2002
2,885 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld a murder conviction, ruling that good motives don't excuse killing and that self-defence failed on the evidence.

What this practically means

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Executive summary

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The Court of Appeal at Nakuru (Chunga CJ, Shah and Bosire JJA) dismissed a first appeal by Joseph Cheruiyot Langat against his conviction for the murder of his father, Kiplangat Arap Boit, whom he cut three times with a panga at Kakibai Village, Kericho, on 15 February 1998, and against the sentence imposed by Ondeyo J on 27 October 2000. Of six grounds of appeal, counsel argued one only: that the appellant acted in self-defence and had no ill motive. The Court held that under Section 9(3) of the Penal Code motive is immaterial to criminal responsibility and read the ground as an attack on mens rea. Re-evaluating the evidence, as a first appellate court must, it found two eyewitnesses saw the appellant cut the deceased three times unprovoked; all three wounds lay on the left side of the body, inconsistent with combat; and the appellant's isolated eye injury did not support his claim that the deceased struck him three times with a walking stick. The attack was premeditated and malice aforethought was established whichever test were applied. The plea, founded on Robert Kinuthia Mungai v. R., that excessive force in self-defence should reduce the conviction to manslaughter failed: the defence at trial was accident, not provocation, and the degree of retaliation and the lethal weapon used took the case outside Section 207, applying Tei s/o Kabaya v. R. Of its own motion the Court addressed the exclusion of assessor Richard Rono without inquiry into his absence: an error of law, curable under Section 382 of the Criminal Procedure Code on these facts, though potentially fatal in an appropriate case. The appeal was dismissed and no costs order was made.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant's motive, or his alleged lack of ill motive, was a matter the trial Judge could properly consider - which the Court reframed as whether the prosecution proved mens rea.
  2. 2.Whether the appellant's defence that he cut the deceased accidentally in self-defence was established on the evidence.
  3. 3.Whether malice aforethought was established notwithstanding the appellant's eye injury.
  4. 4.Whether provocation, or excessive force in self-defence, was available to reduce the murder conviction to manslaughter.
  5. 5.Whether the exclusion of the third assessor, Richard Rono, without an inquiry into his absence was an error of law fatal to the conviction.

Key legal issues

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01

Whether the appellant's motive, or absence of ill motive, could avail him on the charge

Holding

Motive is immaterial to criminal responsibility under Section 9(3) of the Penal Code; the Court treated the ground as a complaint that mens rea was not proved and proceeded on that basis.

Reasoning

Section 9(3) of the Penal Code declares motive immaterial unless the law creating the offence expressly provides otherwise, so the trial Judge could not properly weigh motive in deciding guilt. Because the memorandum of appeal was home-made, the Court charitably read ground 4 as attacking mens rea rather than motive, and proceeded to consider whether malice aforethought was established on the evidence.

p. 2
02

Whether the defence of self-defence, or accidental infliction of the injuries, was established

Holding

Rejected. The eyewitness evidence, the location of all three wounds on the left side of the deceased's body, and the isolated injury on the appellant's eye showed an unprovoked attack rather than a struggle.

Reasoning

Two eyewitnesses about 100 metres away saw the appellant raise his panga three times and cut the deceased; neither saw the deceased raise his walking stick. All three wounds were on the left side, inconsistent with someone in combat changing position. The appellant's eye injury was isolated, and had the deceased struck him thrice as claimed, visible injuries would still have been expected on all the parts where the blows landed.

p. 3
03

Whether malice aforethought was established

Holding

Yes. The attack was premeditated, and it matters not whether a subjective or objective test is employed; the appellant had earlier the same day threatened to kill Birir over the leased land.

Reasoning

The Court characterised the attack as vicious, with a lethal weapon and severe injuries. The appellant's earlier threat that Birir would die if he ploughed the leased land, and his hostility towards his father, showed he was prepared to go to any length. The premeditated character of the attack satisfied mens rea irrespective of the test applied to the appellant's conduct.

p. 4
04

Whether provocation or excessive force in self-defence reduced the offence to manslaughter

Holding

No. The defence at trial was accident, not provocation; in any event the degree of retaliation and the lethal weapon used took the case outside Section 207, applying Tei s/o Kabaya v. R.

Reasoning

The Court restated Robert Kinuthia Mungai on excessive force merging into provocation, but noted the defence actually raised was accident. Applying the Tei s/o Kabaya test - the degree of retaliation and the lethal nature of the weapon - and considering the parties' ages, the trial Judge rightly ruled out provocation. The burden lay on the prosecution to negative the defences, and the eyewitness and medical evidence discharged it.

p. 3
05

Whether the exclusion of the third assessor without inquiry vitiated the trial

Holding

The exclusion of Richard Rono without inquiry into his absence was an error of law, but curable under Section 382 CPC on these facts; in an appropriate case it might be fatal to an otherwise sound conviction.

Reasoning

Section 298(1) CPC presupposes an inquiry into an assessor's non-attendance, or recorded steps to enforce attendance, before the trial proceeds in his absence. The trial Judge did neither, excluding the assessor merely to avoid undue delay. Although the error did not vitiate this conviction, the Court stressed that excluding an assessor is not a light matter and the statutory safeguards must be observed.

p. 4

Legal principles established

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  • On a first appeal, the appellate court is duty bound to analyse and evaluate all the evidence presented at trial and draw its own conclusions, without overlooking the trial Judge's conclusions, while appreciating that it did not see or hear the witnesses.
  • Motive is immaterial to criminal responsibility unless expressly declared by the law creating the offence; the operative question is whether mens rea was established.
  • Except where the accused pleads insanity, no burden rests on the accused to establish his defence; the prosecution must adduce evidence establishing guilt and negativing any defence put forward.
  • Before excluding an assessor under Section 298(1) of the Criminal Procedure Code, a court must inquire into the reasons for the assessor's non-attendance, or record the steps taken to enforce attendance; only then may the trial properly proceed in the assessor's absence.
  • Excluding an assessor is not a light matter; failure to follow the prescribed steps is an error of law which, though curable on the facts, may in an appropriate case be fatal to an otherwise sound conviction.

Court orders

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  1. 1.The appeal is dismissed.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Kericho
H.C.C.C. No. 22 of 1998
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court in a criminal case; the judgment does not expressly cite the provision conferring appellate jurisdiction.

Relief refused

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Quashing of the murder conviction on the ground that the appellant acted in self-defence and lacked mens rea

The Court found the evidence disclosed an unprovoked, premeditated attack; neither provocation nor self-defence was disclosed by the evidence.

p. 3

Substitution of a conviction for manslaughter on the basis of excessive force in self-defence or provocation, relying on Robert Kinuthia Mungai v. R.

The appellant's defence at trial was accident, not provocation; in any event the degree of retaliation and the lethal weapon used took the case outside Section 207 of the Penal Code.

p. 3

Setting aside the conviction on account of the exclusion of the third assessor without inquiry

The procedural error was curable under Section 382 of the Criminal Procedure Code on the facts and circumstances of this case.

p. 4

Costs

No order as to costs; the judgment makes no mention of costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The appellant's conviction of murder contrary to Section 203 as read with Section 204 of the Penal Code was based on overwhelming and acceptable evidence. In the result his appeal has no merit and is ordered dismissed.
p. 4Final orders - appeal dismissed and conviction affirmed
This is a first appeal. We are therefore duty bound to analyse and evaluate all the evidence which was presented to the trial court, draw our own conclusions on it without of course overlooking or ignoring the conclusions of the trial Judge.
p. 2Duty of a first appellate court
It is well established that, except where the accused raises a plea of insanity, no burden rests on him to establish his defence. It is upon the prosecution to adduce evidence to establish the accused's guilt and to negative any defence he has put forward.
p. 3Burden of proof on defences
before a court excludes an assessor from a trial it must inquire as to the reasons for his non-attendance; or where it is not possible to enforce his immediate attendance, for reasons which must be recorded, then, and only then, can a court properly proceed with the trial in his absence.
p. 4Mandatory inquiry before excluding an assessor
It is not a light matter to exclude an assessor from proceedings.
p. 4Gravity of excluding an assessor
this was a case of a premeditated attack, and it matters not what test, subjective or objective, one employs to consider the appellant's conduct.
p. 4Malice aforethought - premeditation
In considering whether the provocation was sufficient to reduce the offence to manslaughter it is material to consider the degree of retaliation as represented by the number of blows and the lethal nature of the weapon used.
p. 3Provocation - degree of retaliation and lethality of weapon (Tei s/o Kabaya test adopted)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joseph Cheruiyot Langat v Republic [2002] KECA 297 (KLR)", Case Analysis (2002). Criminal Appeal No. 183 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/297/eng@2002-03-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.