Rashid Siyoi Chesholei & another v Republic [2019] KECA 920 (KLR)
The bottom line
#Kenya's Court of Appeal upheld one murder conviction based on strong circumstantial evidence but freed a second man convicted only on suspicion and family disputes.
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 circumstantial evidence was sufficient to sustain the 1st appellant's conviction for murder
- 2.Whether there were serious contradictions in the prosecution evidence that vitiated the conviction
- 3.Whether the 2nd appellant, on the basis of motive, association and conduct, could be convicted as a principal offender or as one who aided, abetted, counselled or procured the murder
- 4.Whether the sentence of death was deserved
Key legal issues
#Sufficiency of circumstantial evidence against the 1st appellant
The conviction of the 1st appellant was proper; the circumstances - last seen with deceased, booking the room, possession of deceased's documents and banking slips, and failure to discharge the burden under section 111(1) of the Evidence Act - proved guilt beyond reasonable doubt
The court re-evaluated Kennedy's evidence showing the 1st appellant actively participated in booking and sharing the room and left with the deceased at 10 pm, discrediting the claim of travelling to Mbale. The recovery of the deceased's identity and electoral cards and banking withdrawal slips, and the handwriting examiner's match with the ransom note, were cogent circumstantial evidence incompatible with innocence. The circumstances of death were especially within the 1st appellant's knowledge.
Conviction of the 2nd appellant on suspicion of procuring the murder
The 2nd appellant's conviction was unsustainable; mere suspicion, motive and post-death association are not a proper basis for conviction
There was no evidence the 2nd appellant was at Bungoma when the murder was committed, nor any act from which aiding, abetting or procuring under section 20 of the Penal Code could be inferred. Bad blood over family land and communications with the 1st appellant were innocent, being friends and neighbours. He was not shown to be an accessory after the fact. The investigating officer's conclusion rested on suspicion only.
Effect of the respondent's concession of the appeal
Counsel for the respondent conceded both appeals, but the court held that counsel's opinion is not binding on the court and independently evaluated the evidence
Mr Omwega conceded the appeals of both appellants on the grounds of suspicion and absence of the 1st appellant during recoveries. The court stated that counsel's opinion does not bind it, and proceeded to its own re-evaluation. It nonetheless allowed the 2nd appellant's appeal on its own analysis while dismissing the 1st appellant's appeal.
Legal principles established
#- Before a court can base a conviction on circumstantial evidence, the evidence must be incompatible with the accused's innocence and incapable of explanation on any other hypothesis than guilt, with no co-existing circumstances weakening the inference of guilt
- A first appellate court has a duty to re-evaluate the evidence and reach its own independent findings of fact, while allowing for the trial judge's advantage of hearing and seeing the witnesses
- Motive, suspicion or association alone cannot sustain a conviction for murder; a person may be liable under section 20 of the Penal Code only upon evidence of aiding, abetting, counselling or procuring
- A statement by a deceased person threatening harm made while the deceased was still alive, not about the cause or circumstances of death, is not a dying declaration under section 33(a) of the Evidence Act
Court orders
#- 1.The appeal of the 1st appellant is dismissed in its entirety
- 2.The appeal of the 2nd appellant is allowed
- 3.The conviction of the 2nd appellant is quashed and the sentence of death set aside
- 4.The 2nd appellant shall be released forthwith unless otherwise lawfully held
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Bungoma
- HCCRC. No. 1 of 2009
- Jurisdiction invoked
- First appellate jurisdiction over a conviction and sentence of the High Court (murder trial), Criminal Appeal
Relief refused
#1st appellant's appeal against conviction and sentence
The totality of the circumstantial evidence proved his guilt beyond reasonable doubt; his defence was incredible
2nd appellant's implied claim that the State's concession bound the court
Counsel's opinion is not binding on the court, though the appeal nonetheless succeeded on the evidence
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.
For the foregoing reasons, the appeal of the 1st appellant is dismissed in its entirety. The appeal of the second appellant is allowed.
The conviction of the 2nd appellant is quashed and the sentence of death set aside. The 2 nd appellant shall be released forthwith unless otherwise lawfully held.
It is a settled principle of law that before a court can base conviction on circumstantial evidence such evidence must be incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of guilt
There may have been bad blood between him and the deceased arising from the dispute about the properties left by their deceased father but that alone cannot make him a principle offender.
Issues in the judgment
#The judgment records counsel for the respondent as both 'Mr. Omwega' and 'Mr Omwenga', an apparent typographical inconsistency in the name
No costs order appears in the final orders despite this being a criminal appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rashid Siyoi Chesholei & another v Republic [2019] KECA 920 (KLR)", Case Analysis (2019). Criminal Appeal No. 58 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/920/eng@2019-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.