Abraham Kibet Chebukwa v Republic [2020] KECA 745 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that self-defence fails when excessive force is used, and upheld a 15-year manslaughter sentence.
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 appellant's conviction for manslaughter contrary to section 202 as read with section 205 of the Penal Code was right in view of the appellant's defence of self defence
- 2.Whether the sentence of 15 years imprisonment was manifestly harsh or excessive and amenable to reduction or variation by the Court
Key legal issues
#Whether the defence of self defence negated liability for manslaughter
The trial Judge properly considered and rejected the self-defence claim; excessive force was used, which justifies conviction for manslaughter rather than murder
By pleading self defence the appellant impliedly admitted inflicting the fatal blow. The trial court found the defence an afterthought and a pack of lies, and found the force used was excessive. Because the intent to kill was lacking in the quarrel and fight, the charge of murder was properly substituted with manslaughter. The Court found no error in that approach and affirmed the conviction.
Whether the 15-year sentence was manifestly harsh or excessive
The sentence was lawful and not manifestly excessive; the trial Judge properly exercised his discretion by considering the prescribed sentence, mitigation and personal circumstances
Manslaughter attracts a maximum of life imprisonment under section 205 of the Penal Code. Applying the Ogolla s/o Owuor principles as elaborated in Bernard Kimani Gacheru, the Court found the trial Judge considered all relevant factors including the appellant's mitigation that he was a first offender and his personal circumstances. Absent any of the recognized criteria for interference, the Court declined to disturb the sentence.
Legal principles established
#- A first appellate court must re-evaluate the evidence afresh, weigh conflicting evidence and draw its own conclusions, while making allowance for the trial court's advantage of hearing and seeing the witnesses
- Self defence is an absolute defence to murder only where the accused did not apply excessive force; where excessive force is used, the proper conviction is manslaughter, not murder
- An appellate court will not interfere with sentence unless the trial judge acted on wrong principles, overlooked material factors, took into account wrong material, or the sentence is manifestly excessive in the circumstances
Court orders
#- 1.Appeal dismissed as devoid of merit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kitale
- H.C.CR. C. No. 12 of 2013
- Jurisdiction invoked
- First appellate jurisdiction over a conviction and sentence from the High Court under the Court of Appeal Rules (Rule 32(2) invoked regarding delivery of the judgment)
Relief refused
#Setting aside the conviction for manslaughter on the ground of self defence
The trial Judge considered and rejected the defence of self defence, finding the force used was excessive and the defence an afterthought
Reduction of the 15-year sentence
The trial Judge considered all relevant factors, including mitigation and the appellant's personal circumstances, and the sentence was neither harsh nor excessive
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.
Accordingly, we dismiss this appeal as it is devoid of merit.
It is trite law that self defence is an absolute defence on a charge of murder provided that, the accused person did not in the circumstances of the case apply excessive force.
we are satisfied that the learned Judge considered all the relevant factors in meting out the sentence and properly exercised his discretion. We find that in the circumstances of the case the sentence was neither harsh nor excessive and we have no reason to interfere.
This judgment has been delivered in accordance with Rule 32(2) of the Court of Appeal Rules, Githinji JA having ceased to hold office by virtue of retirement.
Issues in the judgment
#The coram lists three judges (Githinji, Okwengu & J. Mohammed, JJ.A.) but the judgment was delivered by only two judges, Githinji JA having retired before delivery
The judgment is dated and delivered at Nairobi although the appeal is registered at the Court of Appeal at Eldoret
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abraham Kibet Chebukwa v Republic [2020] KECA 745 (KLR)", Case Analysis (2020). Criminal Appeal No. 61 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/745/eng@2020-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.