Benson Kedisia v Republic
The bottom line
#Kenya's Court of Appeal cut a murder conviction to manslaughter because the trial judge wrongly dismissed the assessors and ignored evidence that the accused was drunk.
What this practically means
#Executive summary
#Key legal issues
#Wrongful discharge of assessors in a murder trial where their aid was mandatorily required at the material time
The discharge of the assessors without legal justification, given that the repeal of the assessor requirement post-dated both the offence and the start of the trial, was an irregularity that deprived the appellant of a mandatory component of his trial
The offence was committed on 11th February 2001 and the trial began on 15th March 2006, when the law still required trials with the aid of assessors. By 20th November 2007 the requirement had been repealed, but the Judge gave no explanation for discharging the assessors. Both counsel and the Court agreed there was no legal justification, particularly in view of section 23(3) of the Interpretation and General Provisions Act. The irregularity meant the assessors' views on intoxication could never be known.
Effect of intoxication on specific intent (malice aforethought) in a murder charge
The trial Judge erred in finding there was no evidence of drunkenness; prosecution evidence of intoxication had to be considered under section 13(4) of the Penal Code and the assessors should have been directed on it
Julius admitted in cross-examination that the appellant was drunk when he arrived at the scene. The Court, relying on Said Karisa Kimunzu v Republic, held that under section 13(4) of the Penal Code a court must consider whether intoxication deprived the accused of the ability to form the specific intention required, namely malice aforethought under section 206. The Judge gave no directions on this and the assessors were not properly directed, so the benefit of the doubt went to the appellant.
Whether the appellant caused the death of the deceased
The Court affirmed the trial Judge's finding of fact that the appellant shot the deceased with an arrow, causing her death; the appellant's denial was rightly rejected
The appellant admitted fighting Julius on the material day. Julius and Jane Chepokaptalam Michael gave the same account of the appellant returning armed with a bow and arrows and firing the arrow that struck Josephine. The post-mortem attributed death to cardio-pulmonary failure secondary to the abdominal wound and septichemia. On the recorded evidence the finding could not be wrong, so the issue narrowed to intent, not identity or causation.
Interaction between appellate orders and presidential commutation of death sentences where appeals are pending
The Court's orders superseding a presidential commutation, based as that was on a conviction now found to be wrongful, and urged restraint by presidential intervention in pending appeals
The appellant may have benefited from a presidential commutation of his death sentence to life imprisonment. The Court held that any such clemency presumed the murder conviction was sound; having found the conviction and sentence wrongful, the appellate orders had to prevail. The Court took the unusual step of advising that presidential intervention be withheld in respect of prisoners whose appeals remain pending.
Legal principles established
#- Where a mandatory-trial-with-assessors regime applied and assessors are wrongly discharged, the appellate court must give the appellant the benefit of the doubt arising from the loss of the assessors' verdict
- Evidence of drunkenness may come from prosecution witnesses and cannot be ignored merely because it comes only from them; a trial court must take intoxication into account in determining specific intent for murder
- Before ordering a retrial, an appellate court is entitled to consider all circumstances including the likelihood of a conviction on the admissible evidence
Court orders
#- 1.Appeal against conviction allowed
- 2.Conviction for murder set aside and substituted with a conviction for manslaughter under section 202 of the Penal Code
- 3.Sentence of seven years imprisonment imposed under section 205 of the Penal Code, running from 9th July 2008
- 4.The orders of the Court to supersede any other orders in force regarding the appellant, including any presidential commutation
- On appeal from
- High Court of Kenya at Kitale
- Jurisdiction invoked
- First appeal to the Court of Appeal against conviction and sentence under the Criminal Procedure Code (murder conviction under section 203 as read with section 204 of the Penal Code)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benson Kedisia v Republic", Case Analysis (2009). Criminal Appeal (unspecified number), Court of Appeal at Eldoret. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/458/eng@2009-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.