Joseph Cheruiyot Chepkwony v Republic [2011] KECA 253 (KLR)
The bottom line
#Kenya's Court of Appeal reduced a murder conviction to manslaughter because the accused's drunkenness meant he could not form an intention to kill.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant, who was admittedly drunk, could form the specific intention to kill so as to sustain a conviction for murder
- 2.Whether the learned trial Judge erred in failing to direct himself and the assessors on the effect of intoxication on mens rea
- 3.Whether the conviction should be substituted with manslaughter and what sentence should be imposed
Key legal issues
#Effect of intoxication on mens rea for murder
On the evidence the appellant could not have formed the specific intention to kill, so murder could not stand; the appeal was conceded by the Republic and the conviction was reduced to manslaughter.
Section 13(1) of the Penal Code bars intoxication as a general defence, but section 13(4) requires intoxication to be considered in determining whether the accused formed the relevant intention. Despite admitted drunkenness, the trial judge said nothing to the assessors or in his judgment on whether the appellant could still form the specific intention to kill. That omission was prejudicial. Considering the evidence, the Court was satisfied the appellant could not have formed the specific intention to kill, warranting substitution with manslaughter.
Duty to direct assessors and oneself on intoxication
The trial judge's complete silence on intoxication, both in the summing-up to assessors and in the final judgment, was an error rendering the murder conviction unsafe.
The judgment records that in his summing-up to the assessors the learned trial Judge said absolutely nothing on the appellant's drunkenness and whether he could still form the specific intention to kill, and said nothing in the final judgment either. Given section 13(4) of the Penal Code, that failure was clearly prejudicial, and the Republic properly conceded the appeal to the extent of seeking substitution of manslaughter.
Legal principles established
#- Intoxication shall not constitute a defence to a criminal charge, save as provided in section 13 of the Penal Code
- Intoxication must be taken into account in determining whether the accused formed the intention, specific or otherwise, in the absence of which he would not be guilty of the offence
- A trial judge must direct himself and the assessors on the effect of intoxication on the ability to form the specific intention to kill; failure to do so is prejudicial to the accused
Court orders
#- 1.Appeal allowed to the extent that the conviction for murder under section 203 of the Penal Code is set aside and substituted with a conviction for manslaughter under section 202 of the Penal Code
- 2.Sentence of death set aside; appellant sentenced to fifteen (15) years imprisonment to run from 27th January 2006
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kericho
- H. C. Cr. C. No. 17 of 2002
- Jurisdiction invoked
- First appellate jurisdiction over conviction and sentence under the Court of Appeal's criminal appellate jurisdiction (Penal Code and Judicature framework)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Save as provided in this section, intoxication shall not constitute a defence to any criminal charge
Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.
The learned Judge’s failure to direct himself and the assessors on this point was clearly prejudicial to the appellant and we are not surprised that the Republic conceded the appeal to that extent and asked us to find the appellant guilty of the offence of manslaughter.
In the event, we allow the appellant’s appeal to the extent that we set aside the conviction for murder under section 203 of the Penal Code, and substitute it with a conviction for manslaughter under section 202 of the Penal Code.
We set aside the sentence of death and under section 205 of the Code, we sentence the appellant to fifteen (15) years imprisonment to run from the 27th of January, 2006 when the appellant was convicted and sentenced to death by Musinga, J.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Cheruiyot Chepkwony v Republic [2011] KECA 253 (KLR)", Case Analysis (2011). Criminal Appeal No. 42 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/253/eng@2011-04-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.