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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCriminal Appeal No. 202 of 2014

Peter Okoth Oriango v Republic [2019] KECA 156 (KLR)

Court of Appeal of Kenya
21 November 2019
3,950 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal upheld a murder conviction without a post mortem report, but replaced the death sentence with 20 years' imprisonment.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Githinji, J. Mohammed and ole Kantai, JJ.A) dismissed an appeal against conviction for the murder, committed on the night of 9th-10th November 2005 at Awendo market, of Onango Nyamisi, but allowed the appeal on sentence. The appellant, Peter Okoth Oriango, had been convicted by Sitati, J. of the High Court at Kisii and sentenced to death. Five eyewitnesses, who had been drinking with the deceased in bars and a night club, described how the appellant confronted them near a taxi bay, claimed one of their female companions as his wife, and repeatedly stabbed the deceased with a dagger as he lay on the ground after slipping. The trial judge had excluded the post mortem report and Government Chemist reports because neither their makers nor experts produced them, but convicted on the eyewitness evidence. On appeal, complaints of lack of corroboration, hearsay, an uncalled police witness and an alibi all failed; the Court held the evidence consistent and corroborative, and that no particular number of witnesses need be called. Following Ndungu v Republic and Dorcas Jebet Ketter, the Court held that a conviction may stand without a post mortem report where the cause of death is otherwise overwhelmingly established. Invoking the Supreme Court's decision in Francis Kariako Muruatetu on the unconstitutionality of the mandatory death sentence, the Court set aside the death sentence and substituted 20 years imprisonment from the date of conviction.

Questions the Court framed

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

  1. 1.Whether the evidence of the prosecution witnesses was sufficient, corroborated and free of hearsay to sustain the conviction for murder
  2. 2.Whether the trial court erred in disregarding the appellant's alibi
  3. 3.Whether a conviction for murder can stand in the absence of medical evidence (post mortem report) proving the cause of death
  4. 4.Whether the Court should interfere with the mandatory death sentence imposed in light of Francis Kariako Muruatetu v Republic

Key legal issues

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01

Sufficiency of eyewitness identification and proof of murder without medical evidence

Holding

The conviction was sound; direct eyewitness evidence of the stabbing in well-lit surroundings established that the appellant caused the death, notwithstanding the exclusion of the post mortem report

Reasoning

Five eyewitnesses saw the appellant confront the deceased and stab him repeatedly with a dagger while he lay on the ground. The bar, night club and taxi bay were well lit, affording good opportunity to identify the appellant, whom they had earlier seen demanding a drink. Although the post mortem report and Government Chemist reports were worthless as they were not produced by their makers or experts, the direct eyewitness evidence left no doubt that the appellant inflicted the fatal injuries. Relying on Ndungu v Republic and Dorcas Jebet Ketter, cause of death can be inferred where it is otherwise obvious and overwhelming.

p. 4
02

Appellant's grounds on corroboration, hearsay, uncalled witness and alibi

Holding

All four grounds of appeal on conviction failed; the evidence was consistent and corroborative, there was no hearsay, and the alibi was displaced

Reasoning

The Court found no contradictions in the prosecution evidence, which was consistent and corroborative. There was no hearsay evidence. As to the uncalled police officer, the law requires no particular number of witnesses to prove a fact, and the eyewitnesses sufficed. The claimed alibi was displaced by the strong and consistent prosecution case.

p. 4
03

Sentence - mandatory death penalty

Holding

The death sentence was set aside and replaced with 20 years imprisonment, taking account of Muruatetu, mitigation, the referendum-period tension and the inebriated melee, while noting the viciousness of the attack

Reasoning

Following the Supreme Court's decision in Francis Kariako Muruatetu, the mandatory death sentence under sections 203 and 204 of the Penal Code is unconstitutional, so the Court revisited the sentence. Mitigation included youth, family responsibility, remorse, first offending and 8 years in custody. The 2005 referendum political tension and the alcohol-fuelled melee provided context, but the attack on the older, drunk, fallen deceased was vicious and not excusable. Twenty years' imprisonment was deemed appropriate to punish and reform.

p. 4

Legal principles established

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  • A conviction for murder may stand without medical or post mortem evidence where eyewitness evidence establishes beyond reasonable doubt that the accused inflicted the fatal injuries; each case is decided on its own merits
  • There is no requirement to call a particular number of witnesses to prove a fact; the prosecution need not call a witness who merely received a report of the incident
  • Following Muruatetu, courts may no longer impose the death sentence for murder as a mandatory sentence and must consider the circumstances of each case
  • A first appellate court must evaluate the evidence afresh, assess it and reach its own conclusions while making allowance for having neither seen nor heard the witnesses

Court orders

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  1. 1.The appeal on conviction is dismissed and the conviction for murder is upheld
  2. 2.The sentence of death imposed by the trial court is set aside
  3. 3.A sentence of 20 years imprisonment from the date of conviction is substituted for the death sentence

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Kisii
HC. CR.A. No. 4 of 2006
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court exercising original criminal jurisdiction (Court of Appeal, Criminal Appeal No. 202 of 2014)

Relief refused

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Quashing of the conviction for murder

The prosecution evidence was direct, consistent and corroborative; the alibi was displaced and there was no hearsay or contradiction

p. 4

Costs

No costs order was made in the judgment

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.

The conviction for murder was sound and we uphold it. The appeal on conviction is dismissed.
p. 4Upholding of conviction
We set aside the sentence of death imposed by the trial court and substitute thereof a sentence of 20 years imprisonment from the date of conviction.
p. 4Final orders - sentence substituted
but where evidence is overwhelming that the deceased has died on the hands of a suspect then even in the absence of a post mortem report the court can still convict
p. 4Conviction without post mortem evidence
Of course there are cases, for example, where the deceased person was stabbed through the heart or where the head is crushed, where the cause of death would be so obvious that the absence of a post mortem report would not necessarily be fatal.
p. 4Cause of death obvious without post mortem
the law is that there is no need to call any number of witnesses to prove a fact
p. 4Number of witnesses
Courts have thus been freed from imposing the death sentence as a mandatory sentence but consider circumstances of the case before the court.
p. 4Effect of Muruatetu on sentencing

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, "Peter Okoth Oriango v Republic [2019] KECA 156 (KLR)", Case Analysis (2019). Criminal Appeal No. 202 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/156/eng@2019-11-21

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