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Court of AppealDismissedCriminal Appeal 250 of 2005· [2007] KECA 390 (KLR)

Joseph Kiptum Keter v Republic [2007] KECA 390 (KLR)

Court of Appeal of Kenya
23 February 2007
SBS.E.O BosireEGE.M GithinjiJOJ.W Onyango Otieno
1,924 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a witness isn't disbelieved just for being related to a victim, and upheld a murder conviction and death sentence.

What this practically means

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Executive summary

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The Court of Appeal at Eldoret (Bosire, Githinji and Onyango Otieno, JJA) dismissed in its entirety the appeal of Joseph Kiptum Keter against his conviction for the murder of his infant daughter, Milka Cherono Keter, and the mandatory death sentence imposed by Wanjiru Karanja, J of the High Court at Kitale on 25th October 2005. The prosecution case rested on five eye-witnesses, including the child's mother, who saw the appellant smash the deceased's head against logs of wood, corroborated by a post mortem report showing a shattered skull, and by testimony that the appellant confessed to a local councilor and surrendered to police. The appellant argued the eye-witnesses were partial because related to his estranged wife, that he was not at the scene, and that his defence was ignored. Applying the classic Okeno principles governing first appeals, the Court re-evaluated the evidence afresh and held that relationship alone is no ground to disbelieve a witness, that the trial Judge who saw and heard the witnesses was entitled to accept them, that the prosecution was under no duty to call a superfluity of witnesses per Bukenya v Uganda, and that the appellant's alibi was displaced by overwhelming eye-witness evidence supported by motive. The binding propositions on the duties of a first appellate court and on related witnesses reaffirm settled East African authority. The decision below was affirmed and no costs order was made.

Key legal issues

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01

Duty of a first appellate court on re-evaluation of evidence

Holding

The Court applied the Okeno principles, re-examined the entire record, made its own findings and concluded the conviction was sound.

Reasoning

As a first appeal, the Court was obliged to subject the whole evidence to a fresh and exhaustive examination, weighing conflicting evidence and drawing its own conclusions, while making allowance for the trial Judge's advantage of hearing and seeing the witnesses. Having done so, it found the relationship between the parties hostile, the death not accidental, and the eye-witness accounts corroborated by the post mortem report showing a shattered skull.

p. 2
02

Credibility of related witnesses

Holding

Relationship alone is no ground to disbelieve a witness; the trial Judge was entitled to accept the testimony of witnesses she saw and heard, having assessed their credibility.

Reasoning

Counsel argued the eye-witnesses were partial because they were related to Everlyne. The Court held that belief of a witness is a matter of judicial discretion based on evidence and sound legal principles, that Section 125(1) of the Evidence Act renders all persons competent witnesses, and that cross-examination on credibility enables the court to test truthfulness. The witnesses were cross-examined before the trial Judge, who believed them.

p. 3
03

Failure to call certain witnesses

Holding

The prosecution discharged its burden with the witnesses called; the appellant could not complain that others were not called.

Reasoning

Relying on Bukenya v Uganda, the Court held the prosecution need only call witnesses sufficient to establish the charge beyond reasonable doubt. Those called established the killing, the absence of legal justification, soundness of mind and guilty intention, so no adverse inference arose from the non-calling of other witnesses.

p. 3
04

Alibi defence

Holding

The alibi failed against the overwhelming eye-witness account placing the appellant at the scene.

Reasoning

The appellant's defence was that he was attacked by his brothers-in-law and escaped, denying the killing. The Court noted the offence was committed in broad daylight before several witnesses who knew the appellant well, that there was motive, and that the post mortem corroborated the eye-witnesses, so the alibi was displaced.

p. 3

Legal principles established

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  • On a first appeal, the appellate court must re-examine and re-evaluate the evidence afresh and make its own findings and conclusions, while allowing for the trial court's advantage of seeing and hearing the witnesses.
  • A witness is not to be disbelieved merely because of a relationship to the complainant or the accused; credibility is a matter for the trial court's discretion based on demeanour and evidence.
  • The prosecution is not obliged to call a superfluity of witnesses, only such witnesses as are sufficient to establish the charge beyond reasonable doubt.
  • An alibi defence is displaced by credible, overwhelming direct eye-witness evidence placing the accused at the scene.

Court orders

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  1. 1.Dismissal of the appellant's appeal in its entirety, upholding the conviction and the mandatory death sentence

Authorities

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Legislation

  • Penal Codesection 203
  • Penal Codesection 204
  • Evidence Act, Cap 80 Laws of Kenyasection 125(1)

Cases cited (5)

  • Okeno v. R.
    [1972] EA 32
  • Pandya v. R
    [1957] EA 336
  • Shantilal M. Ruwala v. R.
    [1957] EA 570
  • Peters v. Sunday Post
    [1958] EA 424
  • Bukenya v. Uganda
    [1972] EA 549
On appeal from
High Court of Kenya at Kitale
H.C. Cr. Case No. 30 of 2001
Jurisdiction invoked
First appellate jurisdiction over a High Court conviction and sentence on a charge of murder under section 203 as read with section 204 of the Penal Code

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joseph Kiptum Keter v Republic [2007] KECA 390 (KLR)", Case Analysis (2007). Criminal Appeal 250 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/390/eng@2007-02-23

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