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Court of AppealAllowedCriminal Appeal No. 255 of 2009

Collins Chepkwony & Another v Republic [2011] KECA 216 (KLR)

Court of Appeal of Kenya
10 June 2011
2,535 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal freed two men convicted of murder, ruling that shaky eyewitness identification and unproven cause of death made the convictions unsafe.

What this practically means

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Executive summary

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The Court of Appeal at Nakuru (Omolo, Githinji and Onyango Otieno, JJ.A.) allowed a first appeal against convictions and sentences of death for murder imposed by Ang'awa, J. of the High Court at Kericho on 10th November 2009 in H.C.CR.C. No. 308 of 2008. The appellants were convicted of murdering Patrick Kipng'eno Korir following a fight at Snow Bar in Kericho on 23rd July 2008. The appeal was premised on defective identification, reliance on hearsay, contradictions in the prosecution evidence, absence of a medical nexus to the cause of death, and failure to consider the defence. The only identification evidence came from a single witness, Kibet Torongei, who ran from the bar as a fight broke out in the inner section among close to sixty patrons at night, and who never specified what role each appellant played. The court held that those conditions were not favourable to positive identification and that it was unsafe to convict on such evidence, noting also that the trial judge failed to warn herself of the need for greatest care with single-witness identification and attributed to the witness evidence not found in the record. The court was further not satisfied that the post mortem report proved beyond reasonable doubt that the appellants' act caused the death, as death was attributed to septic shock secondary to peritonitis after surgery, with no nexus established between the assault and the death. Applying Okeno v Republic on the duty of a first appellate court, the appeals were allowed, the convictions quashed, the sentences of death set aside, and the appellants 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 appellants were positively identified as the perpetrators of the offence
  2. 2.Whether the conviction was based on hearsay evidence and on matters not given in evidence
  3. 3.Whether the discrepancies and contradictions in the prosecution evidence undermined the conviction
  4. 4.Whether the medical evidence established a nexus between the assault and the cause of death
  5. 5.Whether the learned Judge considered the defences advanced by the appellants

Key legal issues

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01

Reliability of single-witness identification evidence

Holding

It was unsafe to rely on the single identifying witness because the conditions (night, crowd of about sixty fleeing patrons, witness running away with his back to the fight) were not conducive to positive identification, and the witness could not assign any specific act to either appellant.

Reasoning

The only identification evidence came from Kibet Torongei, who was in the outer bar when the fight broke out in the inner bar and ran out scared, looking back. With close to sixty people fleeing at night, conditions were unfavourable. Torongei never stated which appellant used the 'jiko' and which the rubber weapon. The trial judge also failed to warn herself of the need for greatest care with single-witness identification, and the judgment attributed to the witness evidence not found in the record.

p. 4
02

Causal nexus between the assault and the death

Holding

The post mortem evidence did not prove beyond reasonable doubt that the appellants' act caused the death, since no evidence linked the assault to the septic shock secondary to peritonitis, especially after the deceased's surgery.

Reasoning

Dr. Simba opined death was from septic shock secondary to peritonitis, an infection. The deceased had been operated on and later returned to hospital, but no evidence was adduced on the effect of the operation. Nor was it established what parts of the body were struck or with what weapon, so no nexus was established between the assault and the cause of death.

p. 4
03

Duty of a first appellate court

Holding

The first appellate court must revisit and evaluate the evidence afresh and reach its own conclusions, giving allowance for the trial court's advantage.

Reasoning

Relying on Okeno v Republic, the court held that the learned Judge's failure to consider the identification and causation issues required intervention. Having independently re-evaluated the evidence, the court concluded this was a proper case for interference and allowed the appeal.

p. 4

Legal principles established

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  • A conviction may rest on a single identifying witness, but where identification conditions are difficult the evidence must be tested with the greatest care before convicting.
  • On a first appeal, the appellate court must re-evaluate the evidence afresh and reach its own independent conclusion, while allowing for the trial court's advantage of seeing and hearing the witnesses.

Court orders

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  1. 1.The appeals are allowed
  2. 2.The convictions are quashed
  3. 3.The sentences of death are set aside
  4. 4.The appellants are 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.

majority

Wrote the judgment

majority

Wrote the judgment

Wrote the judgment

On appeal from
High Court of Kenya at Kericho
H.C.CR.C. NO. 308 OF 2008
Jurisdiction invoked
First appellate jurisdiction over a conviction and sentence of the High Court (appeal against conviction and sentence of death for murder)

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.

Although it is trite law that a fact may be proved by the testimony of a single witness, this does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult.
p. 3Single-witness identification
We do so with the result that the appeals are allowed, the convictions quashed, and the sentences of death are set aside. The appellants are set at liberty forthwith unless otherwise lawfully held.
p. 4Final orders / disposition
It was also not stated, as we have stated, as to what parts of the deceased’s body were hit by whoever assaulted him and thus no nexus was established between the assault and the cause of death of the deceased.
p. 4Causation in murder

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Collins Chepkwony & Another v Republic [2011] KECA 216 (KLR)", Case Analysis (2011). Criminal Appeal No. 255 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/216/eng@2011-06-10

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