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Court of AppealPartially AllowedCriminal Appeal No. 61 of 2015

Moses Ochieng Okeyo v Republic [2019] KECA 169 (KLR)

Court of Appeal
21 November 2019
3,477 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal upheld a murder conviction but replaced the mandatory death sentence with 20 years' imprisonment, confirming Muruatetu applies to sentences.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Asike-Makhandia, Murgor and Otieno-Odek, JJ.A) dismissed the appellant's appeal against conviction for the murder of his father but allowed the appeal against the mandatory death sentence, substituting 20 years' imprisonment effective from 24th April 2015. The appellant was convicted by Majanja, J of the High Court at Homa Bay after eyewitnesses, including two children who gave unsworn evidence, saw him strike the deceased with an iron rod. On the first appeal, the Court accepted that unsworn evidence of minors required corroboration under section 124 of the Evidence Act but found it corroborated in material particulars by PW1, who saw the appellant flee the scene in broad daylight. The Court honoured the trial judge's demeanor findings, applied Mwangi v Wambugu on non-interference with factual findings, and held malice aforethought was established under section 206(a) of the Penal Code by the appellant's arming himself, lying in wait, the nature of the attack, his flight, and his leading police to the hidden weapon. The failure to call the stepmother, Grace Agolla, was not fatal; she was not an essential witness under section 143 of the Evidence Act and the Bukenya principle did not apply. On sentence, following Muruatetu and Kittiny, the Court held the Supreme Court's declaration that the mandatory death sentence for murder is unconstitutional bound all courts and permitted a sentence re-hearing; given the appellant's youth and nine years in custody, a term of imprisonment served the interests of justice. The binding propositions concern the first appellate court's duty of fresh evaluation, non-interference with findings of fact, and corroboration of minors' unsworn evidence. No costs order was made.

Questions the Court framed

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

  1. 1.Whether the prosecution case was proved beyond reasonable doubt
  2. 2.Whether the Court should exercise its discretion and review the mandatory death sentence imposed on the appellant

Key legal issues

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01

Corroboration of unsworn evidence of child eyewitnesses

Holding

The unsworn evidence of PW4 and PW7, being minors, required corroboration, but it was corroborated in material particulars by the evidence of PW1 who saw the appellant flee the scene in broad daylight.

Reasoning

The Court accepted that minors' unsworn testimony needs corroboration under section 124 of the Evidence Act, but held PW1's evidence supplied it: he knew the appellant well and saw him run to the woods at midday. The trial court's finding that the children were truthful was a demeanor finding to be honoured, and the appellate court discerned no misapprehension of evidence warranting interference.

p. 3
02

Malice aforethought

Holding

Malice aforethought was established under section 206(a) of the Penal Code: the appellant armed himself with an iron rod, laid in wait, confronted the deceased, inflicted a fatal head injury, and fled.

Reasoning

The medical evidence showed death from a head injury by a sharp object; eyewitnesses saw the appellant inflict it with an iron rod after menacingly demanding an explanation. Arming himself and lying in wait showed methodical planning; flight into the woods and towards the lake, and leading police to the hidden weapon, all evidenced intention to cause death or grievous harm.

p. 3
03

Failure to call Grace Agolla as a witness

Holding

Grace Agolla was not an essential witness; her evidence would merely have repeated what PW4 and PW7 had told her, so the Bukenya principle did not apply.

Reasoning

The appellant argued that the absence of the stepmother's testimony should be presumed adverse to the prosecution. The Court endorsed the trial court's conclusion that she would simply have rehashed the children's account, held she was not an essential witness under section 143 of the Evidence Act, and found Bukenya and others v Uganda inapplicable to the circumstances.

p. 4
04

Sentence in light of Muruatetu

Holding

The mandatory death sentence, having been declared unconstitutional in Muruatetu, could not stand; the Court substituted a fixed term of imprisonment considering the appellant's youth and nine years already served.

Reasoning

Relying on Muruatetu and Kittiny, the Court held the Supreme Court's decision had immediate and binding effect on all courts and did not prohibit sentence re-hearings in pending matters. The death penalty itself was not outlawed, but in the circumstances a term of imprisonment served the interests of justice given the appellant was a young man with nine years in custody.

p. 4

Legal principles established

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  • A first appellate court must re-appraise the evidence and draw its own conclusions while allowing for the trial court's advantage of seeing and hearing the witnesses.
  • An appellate court will not interfere with a trial court's finding of fact, including findings on demeanor, unless it is based on no evidence, a misapprehension of the evidence, or a wrong principle.
  • Unsworn evidence of child witnesses in a murder trial requires corroboration by other material evidence under section 124 of the Evidence Act, the exemption for lack of corroboration applying only to sexual offences.
  • Following Muruatetu, this Court has jurisdiction to direct a sentence re-hearing or pass any appropriate sentence the trial court could have lawfully passed in cases of the mandatory death sentence for murder.

Court orders

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  1. 1.The appeal against conviction fails and is dismissed
  2. 2.The appeal against sentence is allowed
  3. 3.The death sentence is set aside
  4. 4.In substitution, the appellant shall serve 20 years imprisonment effective from 24th April, 2015

The bench

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

majority
majority
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On appeal from
High Court of Kenya at Homa Bay
HCCRC No. 39 of 2012
Jurisdiction invoked
First appeal to the Court of Appeal against conviction and sentence for murder under the Penal Code; appellant invoked Articles 165(3)(a)(b), 159(2)(a)(b) and 22(4) of the Constitution on sentence review in light of Muruatetu

Relief refused

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Setting aside the conviction

The Court found the prosecution case proved beyond reasonable doubt, the evidence of PW4 and PW7 duly corroborated by PW1, and malice aforethought established

p. 4

Costs

No order as to costs 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.

From the foregoing, the appeal against conviction fails. The appeal against sentence is allowed. The death sentence is set aside and in substitution the appellant shall serve 20 years imprisonment effective from 24 th April, 2015.
p. 4Final orders - conviction upheld, sentence varied
All in all we are persuaded that the prosecution case against the appellant was proved beyond reasonable doubt contrary to the assertion by the appellant.
p. 4Standard of proof satisfied
We are therefore satisfied that the evidence of PW4 and 7 was corroborated in material particulars by the evidence of PW1.
p. 3Corroboration of minors' unsworn evidence
the mandatory death sentence imposed on the appellant having been found to be unconstitutional, a sentence of imprisonment would serve the interest of justice.
p. 4Sentence re-hearing following Muruatetu
This Court has jurisdiction to direct a sentence re-hearing or pass any appropriate sentence that the trial court could have lawfully passed.
p. 4Appellate jurisdiction over sentence

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, "Moses Ochieng Okeyo v Republic [2019] KECA 169 (KLR)", Case Analysis (2019). Criminal Appeal No. 61 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/169/eng@2019-11-21

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