Dorcas Jemutai Sang v Republic [2018] KECA 491 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that an accused person never has to prove innocence—courts that expect defendants to call witnesses get convictions overturned.
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 trial magistrate and the first appellate court shifted the burden of proof from the prosecution to the accused by commenting on her failure to call witnesses
- 2.Whether the learned Judge of the High Court failed in her duty as a first appellate court to re-evaluate the evidence on record and reach her own conclusions
- 3.Whether a retrial should be ordered
Key legal issues
#Shifting of the burden of proof in criminal prosecutions
Both courts below appeared to shift the burden of proving innocence onto the appellant by treating her failure to call witnesses as significant; the appeal succeeds on this ground.
The trial magistrate remarked that the accused did not call witnesses to support her defence, and the High Court held that failing to call witnesses greatly undermined her case in an adversarial system. The court held that this conveyed that the accused was obliged to call witnesses to prove her innocence, which was a wrong approach. Save for statutory exceptions under Section 111 of the Evidence Act, the burden remains on the prosecution throughout, and a judicial officer must not appear to shift it in his or her decision.
Duty of the first appellate court to re-evaluate evidence
The learned Judge did not perform her duty as a first appellate court; she merely determined the grounds and confirmed the trial court's findings without re-examining the evidence.
While the Judge set out and determined each of the seven grounds, she did not re-examine the evidence of each prosecution witness in light of the defence or reach her own conclusions on proof beyond reasonable doubt. Although there is no set formula for re-evaluation and adequacy is a question of substance, nothing on the record showed the required reconsideration. Had she done so, she would have detected the unlawful sentence, since the lawful default term under Section 28 of the Penal Code was six months, not two years.
Whether a retrial should be ordered
A retrial was refused; the interests of justice did not require it, particularly since the appellant had already paid the fine.
The State, while conceding the appeal, asked for a retrial, asserting the witnesses could be availed. Counsel for the appellant opposed. Applying the principle that each case depends on its facts and a retrial should only be ordered where the interests of justice require it, the court held that the interests of justice did not so require and declined the order, directing instead a refund of the fine.
Legal principles established
#- In a criminal prosecution the burden of proof always rests with the prosecution and must not shift to the accused, whether in substance or in appearance in the decision of a judicial officer.
- A first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions on guilt or otherwise.
- There is no set formula for re-evaluation of evidence by a first appellate court; adequacy is a question of substance, not of length or style.
- On a second appeal, the Court of Appeal is confined to points of law and is bound by concurrent findings of fact unless shown not to be based on evidence.
- A retrial should only be ordered where the interests of justice require it, having regard to the particular facts and circumstances of the case.
Court orders
#- 1.Appeal allowed
- 2.Retrial declined
- 3.Fine imposed and paid by the appellant to be refunded
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Eldoret
- HC.CR.A. No. 212 of 2009
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal on points of law)
Relief refused
#Order of retrial
The State sought a retrial but the court held the interests of justice did not require it
Costs
No order as to costs was made; the court directed that the fine imposed and paid by the appellant be refunded.
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.
Therefore, other than the exception, the burden of proof in criminal cases always rests with the prosecution and cannot and should not be seen to shift to the accused person.
Accordingly, all judicial officers conducting criminal prosecutions should ensure that at no time does the burden of proof shift to the accused person and, more importantly, such a judicial officer should not appear in his/her decision to shift that burden.
It is the duty of a first appellate court to reconsider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld.
While the length of the analysis may be indicative of a comprehensive evaluation of evidence, nevertheless the test of adequacy remains a question of substance.
an order for retrial should only be made where interests of justice require it.
In the result, we allow this appeal, decline to order a retrial and direct that the fine imposed and paid by the appellant be refunded.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dorcas Jemutai Sang v Republic [2018] KECA 491 (KLR)", Case Analysis (2015). Criminal Appeal No. 11 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/491/eng@2018-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.