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Court of AppealPartially AllowedCriminal Appeal No. 73 of 2009· [2013] KECA 397 (KLR)

Joseph Kipkoech Kurgat v Republic

Court of Appeal of Kenya

14 February 2013

AVAlnashir Visram OKOkwengu

D. K. Maraga

982 words in judgment

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The bottom line

Kenya's Court of Appeal replaced a murder conviction and death sentence with manslaughter and a 10-year term because provocation and drunkenness were ignored.

What this practically means

Executive summary

This is a first appeal to the Court of Appeal at Nakuru against a conviction for murder and sentence of death imposed by Ang'awa, J of the High Court at Nakuru on 2nd March 2009 in H. C. Cr. C. No. 26 of 2008. The appellant, Joseph Kipkoech Kurgat, was convicted of murdering his neighbour, Joseph Kipyegon Kitur, on 14th June 2008 at Kariba Village, Bomet District, after hitting him on the back of the neck with a stick during a struggle. The court found from the prosecution's own evidence and the appellant's unsworn statement that the deceased provoked the appellant by pushing him with a stick while he was unarmed, and that the appellant was drunk at the material time. The court held that the trial judge erred by not dealing with provocation at all and by only superficially addressing intoxication. Relying on section 13(4) of the Penal Code and its earlier decisions in Moses Olesugut Paranai and Geofrey Manoti Obaigwa, the court reaffirmed that a trial judge must consider whether an intoxicated accused could form the specific intent required for murder. Holding that the appellant lacked that intent and had acted under provocation but with excessive force, the court concluded he should have been convicted of manslaughter, not murder. The appeal was allowed in part: the murder conviction was quashed and substituted with manslaughter under section 202, and the death sentence was set aside and replaced with ten years imprisonment running from 12th March 2009. Okwengu, JA was absent on study leave and the judgment was delivered under Rule 32(2) of the Court of Appeal Rules.

Key legal issues

Provocation reducing murder to manslaughter

Holding

The deceased's pushing of the unarmed appellant with a stick amounted to provocation, but the appellant's response was excessive force, warranting conviction for manslaughter only.

Reasoning

The trial judge failed to deal with provocation at all despite defence submissions. The court, on the material before it, found the deceased provoked the appellant by pushing him with a stick while he was unarmed. However, the appellant retaliated by hitting the deceased on the back of the neck with the same stick, causing death, which was excessive force. Provocation therefore warranted reduction to manslaughter, not acquittal.

p. 2

Intoxication and specific intent for murder

Holding

Drunkenness alone is no defence, but under section 13(4) of the Penal Code the trial judge must consider whether intoxication deprived the accused of capacity to form the specific intent for murder; here it did, so murder could not stand.

Reasoning

Prosecution witnesses and the appellant's unsworn statement established he was drunk. Section 13(2) sets conditions under which drunkenness is a defence, but section 13(4) obliges the judge to consider whether the intoxicated accused could still form the specific intent for murder. The trial judge dealt with intoxication only superficially. Following prior Court of Appeal authority, the court held the absence of specific intent precluded a murder conviction.

p. 2

Legal principles established

A trial judge is bound to consider whether an intoxicated accused was capable of forming the specific intent necessary for murder; if not, the accused cannot be convicted of murder.
Where provocation is raised on the evidence and the accused used excessive force, the appropriate conviction is manslaughter, not murder.

Court orders

1.Appeal allowed to the extent that the conviction for murder under section 203 of the Penal Code is quashed
2.Conviction for manslaughter under section 202 of the Penal Code substituted
3.Sentence of death set aside and substituted with a sentence of 10 years imprisonment pursuant to section 205 of the Penal Code
4.Sentence to run from 12th March 2009, when the sentence of death was imposed

On appeal from: High Court of Kenya at Nakuru; H. C. Cr. C. No. 26 of 2008
Jurisdiction invoked: First appellate jurisdiction over conviction and sentence under the Court of Appeal Rules; judgment delivered under Rule 32(2) of the Court of Appeal Rules in the absence of Okwengu, JA

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Joseph Kipkoech Kurgat v Republic", Case Analysis (2013). Criminal Appeal No. 73 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/397/eng@2013-02-14

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