Jacob Koskei Alias Chemutut v Republic [2011] KECA 336 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge's conclusions were supported by the evidence on record
- 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.Whether the facts proved amounted to murder or manslaughter
- 4.Whether the premature discharge of the assessors vitiated the trial
- 5.What sentence was appropriate upon substitution of a manslaughter conviction
Key legal issues
#Duty to consider intoxication raised by prosecution evidence
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.
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.
Premature discharge of assessors
The issue fell away because on the concession the appropriate conviction was manslaughter, which requires no assessors, and a retrial would serve no purpose.
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.
Sentence on substituted manslaughter conviction
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.
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.
Legal principles established
#- 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
#- 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.Substitution of a conviction for manslaughter under section 202 as read with section 205 of the Penal Code
- 3.Appellant sentenced to fifteen years imprisonment to run from 23rd July, 2009
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
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
#Retrial
Unnecessary given the Republic's concession that the facts proved manslaughter, not murder
Grounds 2 and 3 of the appeal challenging the sufficiency of the evidence
The evidence against the appellant was overwhelming
Costs
No order as to costs was made (criminal appeal; the judgment contains no costs order)
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.
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.
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.
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
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
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.