Alex Cheren Laikong Alias Boi Josto Alais Boiyo Jarmin & 7 others v Republic
The bottom line
#Kenya's Court of Appeal freed eight men convicted of murder, ruling that weak identification evidence and ignored alibi defences made their convictions unsafe.
What this practically means
#Executive summary
#Key legal issues
#Reliability of visual identification evidence
The identification of all the appellants, including the 4th and 7th, was tenuous: the incident occurred at dawn in a dense forest, the identifying witnesses were mere visitors who gave no distinguishing features, and the identification amounted to worthless dock identification.
The Court applied Wamunga and Kamau on the risk of mistaken identity, held the trial court wrongly took judicial notice that the sun was up at dawn without any evidential basis, and found the witnesses could not point to what stood out among strangers. The respondent's concession had exempted the 4th and 7th appellants, but the Court held the same defects applied to them.
Common intention under Section 21 of the Penal Code
Common intention may be inferred from presence, actions and failure to dissociate, but it cannot be applied where identification of the accused at the scene is itself doubtful; the State could not selectively apply the doctrine to only the 4th and 7th appellants.
Relying on Tabulayenka and Kipkemoi, the Court held that where accused persons are seen together at the scene participating in various degrees, all are equally culpable; but since the identification of all the appellants was doubtful, the doctrine was inappropriately applied and could not sustain any conviction.
Alibi defences
The trial court erred in cursorily dismissing the appellants' alibi defences without a reasoned evaluation against the prosecution's case; the burden of rebutting an alibi rests on the prosecution once raised.
Invoking Kiarie v Republic, the Court held that failure to consider an alibi amounts to a miscarriage of justice. The appellants' alternative narratives of arrest at roadblocks, marketplaces and the border were dismissed without juxtaposing them against the totality of the prosecution evidence, warranting appellate interference.
Legal principles established
#- An appellate court is not bound by a concession by the State; it has an independent duty to re-evaluate the evidence and decide the appeal on its merits.
- Where identification of accused persons at the scene is doubtful, the doctrine of common intention under Section 21 of the Penal Code cannot be applied against them, even if they were placed at the scene.
- Once an alibi defence is raised, the burden of rebutting it shifts to the prosecution, and failure to consider an alibi defence amounts to a miscarriage of justice.
- On a first appeal, the Court of Appeal must re-evaluate the evidence afresh, analyse it independently and draw its own conclusions while making allowance for not having seen the witnesses.
Court orders
#- 1.The appeals in respect of all the appellants are allowed
- 2.The convictions of all the appellants are quashed
- 3.The sentences imposed are set aside
- 4.The appellants shall be set at liberty forthwith unless otherwise lawfully held
- On appeal from
- High Court (trial court, station not stated)
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal from a conviction and sentence for murder (not expressly anchored to a cited constitutional or statutory provision in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alex Cheren Laikong Alias Boi Josto Alais Boiyo Jarmin & 7 others v Republic", Case Analysis (2025). Criminal Appeal (not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1902/eng@2025-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.