Vincent Chemjor & another v Republic [2019] KECA 517 (KLR)
The bottom line
#Kenya's Court of Appeal upheld one brother's murder conviction and death sentence but freed the other, ruling that doubt about shared intent must favour the accused.
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 evidence of identification of the 1st appellant as the person who stabbed the three deceased persons was sufficient
- 2.Whether the 2nd appellant was a principal offender under section 20(1) of the Penal Code despite not stabbing the deceased persons, i.e. whether he shared a common intention with or aided and abetted the 1st appellant
- 3.Whether the trial Judge's taking over of the trial from another Judge without full compliance with section 200(3) of the Criminal Procedure Code occasioned a miscarriage of justice
- 4.Whether the failure to call the investigating officer as a witness vitiated the trial
- 5.Whether the sentence of death on all three counts was proper
Key legal issues
#Sufficiency and reliability of evidence of identification by recognition at night
The conviction of the 1st appellant on identification was safe: witnesses knew him, saw him at close range, and lighting from electricity and moonlight was favourable.
The Court re-evaluated the evidence and found the identifying witnesses had personal contact with the 1st appellant when he confronted the chief, that the killing occurred within a small radius near light sources, and that his own defence placed him at the scene. The trial Judge's findings on identification were supported by multiple witnesses and the postmortem evidence corroborated stabbings.
Criminal liability of the 2nd appellant as a principal offender under section 20(1) of the Penal Code
The 2nd appellant's conviction was unsafe: throwing stones to stop an arrest did not establish a common intention to kill or aiding and abetting the stabbings.
The trial Judge's finding that the 2nd appellant handed the knife to the 1st appellant was contradicted in material respects by the chief and Mica Chelimo, who said the 1st appellant produced the knife while confronting the chief, before calling the 2nd appellant. The stone-throwing was to frustrate an arrest, not to facilitate the killings, and in the brief moment no common intention was formed; the 2nd appellant received the benefit of doubt.
Compliance with section 200(3) of the Criminal Procedure Code, non-calling of the investigating officer, and admission of written submissions
None of these grounds merited interference; the fair trial tenets in Article 50(2) of the Constitution were substantially fulfilled.
The record showed the appellants, with counsel present, elected that the trial continue from where the previous Judge had reached. The investigating officer had been transferred, summons and a warrant of arrest had issued, and counsel opposed an adjournment; hence no deliberate prosecution failure. Written final submissions were received and considered by the trial Judge.
Legal principles established
#- A first appellate court must reconsider and re-evaluate the evidence and reach its own independent conclusions, while bearing in mind it did not see or hear the witnesses.
- Where a person did not himself commit the actus reus, liability as a principal under section 20(1) of the Penal Code requires proof of a common intention to kill or of aiding and abetting; doubt is resolved in the accused's favour.
- Where multiple death sentences are imposed, the death sentence should be imposed on one count only with the other sentences held in abeyance.
- Following Muruatetu, the death sentence for murder is not mandatory; sentencing is discretionary.
- Failure by the prosecution to call the investigating officer creates a lacuna in the prosecution case, but the lacuna vitiates the trial only if it occasions a miscarriage of justice.
Court orders
#- 1.The appeal by the 1st appellant, Vincent Chemjor, against conviction and sentence is dismissed save that he shall suffer death in the first count
- 2.The sentences of death in the 2nd and 3rd counts against the 1st appellant are held in abeyance
- 3.The appeal against conviction and sentence by the 2nd appellant, Peter Kiprop Chemjor, is allowed
- 4.The conviction of the 2nd appellant in each of the three counts is quashed and the sentences set aside
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Eldoret
- H.C. Cr. C No. 6 of 2008
- Jurisdiction invoked
- First appellate jurisdiction over an appeal from the High Court in a criminal trial (murder conviction and death sentence)
Relief refused
#1st appellant's appeal against conviction
The evidence of identification was credible; conditions for identification were favourable with light from electricity and the moon; some identifying witnesses saw him at close range
Grounds that section 200(3) of the Criminal Procedure Code was not complied with, that the investigating officer was not called, and that written submissions were improperly admitted
Appellants, represented by counsel, elected to have the trial continue; the investigating officer's non-attendance was not a deliberate prosecution failure and the lacuna did not occasion a miscarriage of justice
1st appellant's appeal against the death sentence
Though the death sentence is no longer mandatory per Muruatetu, the High Court found the crime most foul and this Court agreed the 1st appellant deserved death
Costs
No order as to costs was made in the judgment.
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.
(i) The appeal by the 1st appellant, Vincent Chemjor against conviction and sentence is dismissed save that the 1 st appellant shall suffer death in the first count and sentences of death in the 2 nd and 3rd counts are held in abeyance.
(ii) The appeal against conviction and sentence by the 2 nd appellant Peter Kiprop Chemjor is allowed, the conviction in each of the three counts is quashed and sentences set aside.
Our duty is to reconsider the evidence, re-evaluate it, and come to our independent conclusions while bearing in mind that we have not had the opportunity to see and hear the witnesses.
We give the 2nd appellant the benefit of doubt.
Sentence of death should have been imposed in one count and the sentences in the other two counts left in abeyance.
Issues in the judgment
#The judgment variously dates the incident as 23rd November 2007, the night of 25th November 2007, and, in the 2nd appellant's statement, 23rd November 2008 - internally inconsistent dates
The 2nd appellant is referred to by name ('David'/'Daudi') within an eyewitness excerpt quoted as describing 'accused 1', creating ambiguity about which accused the witness meant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Vincent Chemjor & another v Republic [2019] KECA 517 (KLR)", Case Analysis (2019). Criminal Appeal No. 50 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/517/eng@2019-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.