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Court of AppealPartially AllowedCriminal Appeal No. 166 of 2005· [2007] KECA 200 (KLR)

Moses Olesugut Paranai v Republic

Court of Appeal of Kenya
28 September 2007
855 words in judgment
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The bottom line

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Kenya's Court of Appeal reduced a man's murder conviction to manslaughter and replaced the death sentence with 10 years because he was drunk when he killed.

What this practically means

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Executive summary

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The appellant, Moses Olesugut Paranai, was charged with the murder of his wife, Silo Ene Sebut, committed on 1st August 2002 at Nkareta area in Narok District. After numerous mentions before the High Court in Nakuru, on 27th April 2005 before D. K. Musinga Ag. Judge, counsel for the appellant indicated a change of plea to guilty. The charge was read and explained to the appellant in Kimasai, the prosecution stated the facts (an attack with a panga following the appellant's return home from a drinking spree after a dispute over a missing calf), the appellant accepted the facts, and he was convicted of murder and sentenced to death, the only punishment by law prescribed. On appeal, the Court of Appeal (Omolo, O'Kubasu and Deverell JJA) held that, given that the appellant had been on a drinking spree before the killing, section 13(4) of the Penal Code required intoxication to be taken into account in determining whether he had formed the intention necessary for murder, and it considered it highly unlikely that the learned Judge did so. The court therefore substituted the murder conviction with a conviction for manslaughter contrary to section 202 as read with section 205 of the Penal Code, set aside the death sentence, and substituted a sentence of ten years imprisonment running from 27th April 2005, the date of conviction and sentence by the superior court. The appeal partially succeeded: the conviction was varied rather than quashed outright, and no acquittal was ordered.

Key legal issues

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01

Effect of intoxication on liability for murder on a plea of guilty

Holding

Where the accused was on a drinking spree before the killing, his murder conviction should be substituted with manslaughter under section 202 as read with section 205 of the Penal Code, because intoxication negates the specific intention required for murder.

Reasoning

The court relied on section 13(4) of the Penal Code, which directs that intoxication be taken into account in determining whether the accused formed the requisite intention, specific or otherwise. Given the admitted fact that the appellant had been drinking before returning home and attacking the deceased, the High Court judge, in convicting on a plea of guilty to murder, was considered highly unlikely to have factored intoxication into the assessment of intent as the statute requires.

p. 2
02

Appropriate sentence for manslaughter on substitution

Holding

The mandatory death sentence for murder was set aside and replaced with a definite term of ten years imprisonment running from the date of the superior court's conviction and sentence.

Reasoning

Having substituted a manslaughter conviction, the death penalty prescribed for murder could no longer stand. The court exercised its appellate power to impose a determinate custodial sentence of ten years, pegged to run from 27th April 2005, the date of conviction and sentence by the superior court, thereby giving credit for time served since that date.

p. 2

Legal principles established

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  • Under section 13(4) of the Penal Code, intoxication must be taken into account in determining whether the accused formed the intention required for murder; a sentencing judge who fails to do so errs, warranting substitution of a murder conviction with manslaughter.

Court orders

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  1. 1.The conviction for murder under section 203 of the Penal Code is substituted with a conviction for the lesser offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code
  2. 2.The sentence of death imposed by the trial Judge is set aside and substituted with a sentence of ten (10) years imprisonment to run from the date of conviction and sentence by the superior court, i.e. 27th April, 2005
On appeal from
High Court of Kenya, Nakuru
H.C. CR. C. No. 11 of 2003
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court sitting on first instance in criminal matters (Criminal Appeal No. 166 of 2005)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Moses Olesugut Paranai v Republic", Case Analysis (2007). Criminal Appeal No. 166 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/200/eng@2007-09-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.