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Court of AppealPartially AllowedCriminal Appeal No. 189 of 2009

Jacob Koskei Alias Chemutut v Republic [2011] KECA 336 (KLR)

Court of Appeal of Kenya
25 March 2011
1,398 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 replaced a murder conviction and death sentence with manslaughter and 15 years because the judge ignored evidence of intoxication.

What this practically means

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Executive summary

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The Court of Appeal at Eldoret (Omolo, Waki and Visram, JJ.A) heard this first appeal against a conviction for murder and sentence of death imposed by Karanja, J of the High Court at Kitale on 23rd July 2009. The appellant, a GSU serviceman, was convicted of murdering the deceased, a police officer, on 17th April 2004 after a day of consuming illicit liquor, in an incident witnessed by several villagers who saw him strike the deceased on the head with a piece of wood. Applying its duty as a first appellate court to re-evaluate the entire evidence, the Court rejected the grounds challenging the sufficiency of the evidence, describing it as overwhelming. However, the Court found a critical omission: although the evidence showed the appellant had consumed 'changaa' and 'busaa', the trial Judge said nothing about the issue of intoxication, which under sections 13(1) and 13(4) of the Penal Code she was bound to consider in determining whether the appellant could form the specific intention required for murder. Senior Deputy Prosecution Counsel conceded that the facts proved only manslaughter, and the Court agreed. The issue of the premature discharge of the assessors fell away since assessors are unnecessary for a manslaughter charge and a retrial would serve no purpose. The Court allowed the appeal in part, set aside the murder conviction, substituted a conviction for manslaughter under section 202 as read with section 205 of the Penal Code, and sentenced the appellant to fifteen years imprisonment running from 23rd July 2009, noting that the President's commutation of the death sentence to life imprisonment had assumed the murder conviction was sound.

Questions the Court framed

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

  1. 1.Whether the learned Judge's conclusions were supported by the evidence on record
  2. 2.Whether the trial Judge was under a duty to consider and direct herself on the issue of intoxication raised in the prosecution evidence
  3. 3.Whether the facts proved amounted to murder or manslaughter
  4. 4.Whether the premature discharge of the assessors vitiated the trial
  5. 5.What sentence was appropriate upon substitution of a manslaughter conviction

Key legal issues

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01

Duty to consider intoxication raised by prosecution evidence

Holding

The trial Judge erred in saying nothing about intoxication although the evidence showed the appellant had consumed illicit liquor; the court cannot know whether she would have found the specific intention for murder.

Reasoning

Section 13(1) of the Penal Code bars intoxication as a defence, but section 13(4) requires it to be considered where absence of intention would negate guilt. The Judge was under a duty to direct herself on intoxication even though the assessors had been discharged and the appellant did not raise the point. The prosecution counsel conceded the facts proved only manslaughter, which the court accepted, making it impossible to sustain the murder conviction.

p. 2
02

Premature discharge of assessors

Holding

The issue fell away because on the concession the appropriate conviction was manslaughter, which requires no assessors, and a retrial would serve no purpose.

Reasoning

The court declined to consider whether the assessors were wrongly discharged because, having accepted the Republic's concession that only manslaughter was proved, assessors were unnecessary for a manslaughter charge. The only consequence of a finding on that point would most likely have been a retrial order, which the concession rendered unnecessary.

p. 2
03

Sentence on substituted manslaughter conviction

Holding

The commutation of the death sentence to life imprisonment was premised on the murder conviction; the court exercised its discretion to impose fifteen years imprisonment running from the date of the death sentence.

Reasoning

The President's commutation must have assumed the murder conviction was sound. Having held that conviction wrong, the court had discretion to impose an appropriate sentence under section 205 of the Penal Code and sentenced the appellant to fifteen years imprisonment backdated to 23rd July 2009.

p. 2

Legal principles established

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  • A first appellate court must conduct a fresh re-evaluation and re-assessment of the entire evidence while making allowance for the trial court's advantage of seeing and hearing witnesses.
  • Where intoxication is raised by the evidence, even if not raised by the accused, the trial Judge is under a duty to consider it in determining whether the accused could form the necessary intention.
  • Intoxication is not per se a defence but may be taken into account in determining whether a specific intention was formed.

Court orders

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  1. 1.Appeal allowed to the extent that the conviction for murder under section 203 as read with section 204 of the Penal Code is set aside
  2. 2.Substitution of a conviction for manslaughter under section 202 as read with section 205 of the Penal Code
  3. 3.Appellant sentenced to fifteen years imprisonment to run from 23rd July, 2009

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

majority

Wrote the judgment

On appeal from
High Court of Kenya at Kitale
H.C. Cr. C. No. 22 of 2004
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal's statutory appellate powers over High Court criminal convictions (Criminal Appeal against conviction and sentence)

Relief refused

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Retrial

Unnecessary given the Republic's concession that the facts proved manslaughter, not murder

p. 2

Grounds 2 and 3 of the appeal challenging the sufficiency of the evidence

The evidence against the appellant was overwhelming

p. 2

Costs

No order as to costs was made (criminal appeal; the judgment contains no costs order)

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 accordingly allow the appeal to the extent that we set aside the conviction for murder under section 203 as read with section 204 of the Penal Code, and substitute it with a conviction for manslaughter under section 202 as read with section 205 of the Penal Code.
p. 2Final orders - conviction substituted
We now sentence the appellant to fifteen years imprisonment to run from 23rd July, 2009 when he was sentenced to death by the High Court.
p. 3Final orders - sentence
it was the Judge’s duty to consider and take into account the issue of intoxication to determine whether, in spite of the intoxication, the appellant was still in a position to form the specific intention to commit the offence of murder
p. 2Trial judge's duty on intoxication
We are aware that as a first appellate court the appellant is entitled to expect of us a fresh re-evaluation and re-assessment of the entire evidence which was brought against him by the prosecution
p. 1First appellate court duty

Issues in the judgment

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minor

The appellant's name is rendered inconsistently within the judgment itself: the cause title reads 'JACOB KOSKEI' while the body reads 'Jackob Kosgei Kayab'

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, "Jacob Koskei Alias Chemutut v Republic [2011] KECA 336 (KLR)", Case Analysis (2011). Criminal Appeal No. 189 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/336/eng@2011-03-25

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