Thomas Kipkemoi Kipkorir & 2 others v Republic [2020] KECA 34 (KLR)
The bottom line
#Three Kenyan police officers lost their murder appeal but won a chance at lighter sentences, because the mandatory death sentence is now unconstitutional.
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 relied on was contradictory and, if so, the effect thereof
- 2.Whether there was common intention on the part of the appellants to cause death or grievous harm
- 3.Whether the offence of murder was proved beyond reasonable doubt
- 4.Whether the defence of intoxication was available to the appellants
- 5.Whether the sentence of death should stand in light of the Muruatetu decision
Key legal issues
#Materiality of contradictions in prosecution evidence
The contradictions between PW4 and PW6 were not material and did not occasion a miscarriage of justice; the trial court was entitled to prefer the credible testimony of the eyewitness PW4.
The Court deferred to the trial judge's assessment of demeanour, noting PW4 was calm, firm and consistent while PW6 contradicted herself and had left the scene. Relying on Phillip Nzaka Watu, it held human recollection is not infallible and discrepancies must be weighed case by case. The conviction did not rest solely on PW4's evidence since PW1, PW2, PW3 and PW9 corroborated the appellants' conduct.
Common intention and malice aforethought
The appellants' joint conduct in harassing, beating and causing grievous harm to the deceased, and abandoning him despite a direction to take him to hospital, established common intention and malice aforethought under sections 21 and 206 of the Penal Code.
The Court inferred a shared unlawful purpose from the joint assault and the severity of the injuries. Even if the arrest were lawful, police officers have no justification to use excessive force; the National Police Service Act's Sixth Schedule requires proportionality and immediate medical assistance where force causes injury, obligations the appellants flouted.
Defence of intoxication
The defence of intoxication failed because the appellants' intoxication was self-induced and did not meet the conditions in section 13(2) of the Penal Code.
Section 13(2) permits intoxication as a defence only where the state was caused without consent by another's malicious or negligent act, or where it produced temporary insanity. The appellants drank voluntarily, so the statutory conditions were not satisfied and the ground lacked merit.
Sentence
The mandatory death sentence could no longer stand; the matter was remitted for re-sentencing only.
In light of Muruatetu, courts must consider individual circumstances and mitigation. The appellants' failure to mitigate may have stemmed from the then-existing legal position that death was the only sentence for murder. The appeal against sentence therefore succeeded to that limited extent.
Legal principles established
#- On a first appeal, the appellate court must revisit the evidence afresh, analyse it and reach its own conclusions while allowing for the trial court's advantage of seeing and hearing the witnesses.
- Minor discrepancies in witnesses' testimony do not necessarily destroy credibility; whether discrepancies are material depends on the circumstances and their nature and extent.
- Common intention under section 21 of the Penal Code requires a shared intention to pursue a specific unlawful purpose which led to the offence charged.
- Following Muruatetu, the mandatory death sentence for murder is unconstitutional and courts must consider individual circumstances and mitigation in sentencing.
Court orders
#- 1.Appeal against conviction dismissed in its entirety
- 2.Appeal against sentence succeeds to the extent that the matter is remitted to the trial court for re-sentencing only
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- H.C.CR.C. No. 29 of 2012
- Jurisdiction invoked
- First appeal to the Court of Appeal against conviction and sentence for murder (Article 164(1)(a) of the Constitution; Criminal Procedure Code)
Relief refused
#Setting aside of the convictions
The Court was satisfied, after its own re-evaluation of the evidence, that the offence was proved beyond reasonable doubt and that the contradictions were immaterial
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.
It is therefore in the interest of justice that we remit this matter to the trial court for re-sentencing only. To that extent, the appeal against sentence succeeds. For avoidance of doubt, the appeal against conviction is dismissed in its entirety.
We are therefore enjoined to revisit the evidence afresh, analyse it, and come to our own independent conclusion, but always bearing in mind that the trial court had the advantage of seeing and hearing witnesses and therefore give allowance for that.
We are satisfied that the cited contradictions were not material and did not occasion any miscarriage of justice.
The only inference that can be deduced from the testimonies is that the appellants had common intention to harm the deceased, stemming from their action of harassing, beating, and causing him grievous harm.
there was no justification whatsoever for them to use excessive force by inflicting severe injuries to the deceased.
we are satisfied that malice aforethought as defined under section 206 of the Penal Code was established.
Issues in the judgment
#The judgment inconsistently dates the offence: the charge states the murder occurred on the night of 30th March 2012, but the respondent's submissions refer to events at Kwitu bar on the evening of 30th March 2010.
The first appellant's name is spelled differently within the judgment ('KIPKEMOI KIPKORIR' in the style of cause versus 'KIPKIROR' in the charge particulars).
The respondent's submissions describe PW1 as a friend of the deceased who witnessed the deceased being escorted, while paragraph 48 describes PW1 as finding the deceased already being harassed; the two accounts are not reconciled.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thomas Kipkemoi Kipkorir & 2 others v Republic [2020] KECA 34 (KLR)", Case Analysis (2020). Criminal Appeal No. 89 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/34/eng@2020-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.