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Court of AppealAllowedCriminal Appeal 264 of 2006

PETER KIOKO KISILU v REPUBLIC [2007] KECA 452 (KLR)

Court of Appeal of Kenya
19 January 2007
EGE.M. GithinjiPWP.N. WakiWDW.S. Deverell
1,974 words in judgment
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The bottom line

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Kenya's Court of Appeal freed a man sentenced to death for robbery, ruling that the prosecution—not the accused—must disprove an alibi.

What this practically means

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Executive summary

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The appellant was convicted of robbery with violence contrary to section 296(2) of the Penal Code, arising from a robbery at a Changamwe butchery on 16 February 2003 in which KShs.5,650 was stolen at pistol point, and sentenced to death. His first appeal to the High Court (Mwera & Khamoni, JJ.) was dismissed, and he brought this second and final appeal confined to points of law. Counsel raised two issues: the identification and arrest of the appellant, and the treatment of his alibi defence. On the first, the Court found that although the robbery occurred under lights, there was no evidence establishing how the witnesses, who lay face down terrified throughout the ordeal, identified the appellant inside the butchery; further, the courts below erred in finding that the witnesses never lost sight of the robbers, when the robbers had already left, the arrest took place about 100 metres away, and the lighting at the arrest scene was not close. On the second issue, applying Sekitoleko v Uganda and Kiarie v Republic, the Court restated that the burden of disproving an alibi never shifts to the accused and that an alibi need only raise a reasonable doubt. The appellant had raised his alibi at the first opportunity with specific details, yet the police investigation was cursory, and both courts below rejected the alibi without applying the correct onus. The Court concluded there were reasonable doubts on the record and it was not safe to convict. The appeal was allowed and the appellant was ordered set at liberty forthwith unless otherwise lawfully held.

Questions the Court framed

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

  1. 1.Whether the concurrent findings of fact on the identification and arrest of the appellant were based on the evidence on record
  2. 2.Whether the appellant's alibi defence was properly investigated and correctly evaluated by the courts below

Key legal issues

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01

Identification of the appellant as one of the robbers

Holding

The concurrent findings on identification and arrest were based on a wrong evaluation of the evidence, entitling the Court to interfere on second appeal.

Reasoning

Although the robbery occurred under lights, there was no evidence of how the witnesses, who lay face down terrified during the three-minute ordeal, identified the appellant inside the butchery. No descriptions of the robbers' features or attire were given. The finding that the witnesses never lost sight of the robbers was erroneous: the robbers had gone before the witnesses emerged, the arrest occurred about 100 metres away, and the lighting at the scene was not close. The findings were therefore based on the wrong evaluation of the evidence.

p. 3
02

Treatment of the appellant's alibi defence

Holding

The alibi was not properly investigated and the courts below failed to apply the correct onus, rendering the conviction unsafe.

Reasoning

The appellant raised his alibi at the first opportunity, giving specific details of his workplace, wages, and intended bus travel. The police made only cursory inquiries and did not obtain statements from the employers or bus conductor mentioned, which could have supported or disproved the alibi. The law, as settled in Sekitoleko v Uganda and Kiarie v Republic, is that the burden of proving an alibi does not lie on the accused; it suffices if the alibi raises a reasonable doubt. Both courts below rejected the alibi without applying the correct onus or giving reasons.

p. 5

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to points of law and will not interfere with concurrent findings of fact of the two lower courts unless they were based on no evidence.
  • The burden of proving the guilt of the accused beyond reasonable doubt never shifts to the accused, whether or not the defence raised is an alibi; the burden of proving an alibi does not lie on the accused.
  • An accused person who puts forward an alibi does not assume any burden of proving it; it is sufficient if the alibi introduces into the mind of the court a doubt that is not unreasonable.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The appellant shall be set at liberty forthwith unless otherwise lawfully held

The bench

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

EG
majority
PW
majority
WD
majority
On appeal from
High Court of Kenya at Mombasa
H.C.CR.A. No. 547 of 2005
Jurisdiction invoked
Second and final appeal to the Court of Appeal under the Criminal Procedure Code, confined to points of law

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.

We extend the benefit of those doubts to the appellant and order that this appeal be and is hereby allowed. The appellant shall be set at liberty forthwith unless he is otherwise lawfully held.
p. 5Final orders - appeal allowed and appellant set at liberty
As this is a second appeal, it must be confined to points of law since this court will not interfere with concurrent findings of fact arrived at in the two courts below unless they were based on no evidence.
p. 1Scope of second appeal
An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge preferred against him does not in law thereby assume any burden of proving that answer
p. 5Burden of proof on alibi defences
In all the circumstances we think the findings of fact made on identification and arrest were based on the wrong evaluation of the evidence and we are entitled to interfere with those findings.
p. 3Interference with concurrent findings based on wrong evaluation of evidence

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, "PETER KIOKO KISILU v REPUBLIC [2007] KECA 452 (KLR)", Case Analysis (2007). Criminal Appeal 264 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/452/eng@2007-01-19

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