Kedisia v Republic (Criminal Appeal 96 of 2008) [2009] KECA 458 (KLR)
The bottom line
#Kenya's Court of Appeal cut a murder conviction to manslaughter because the trial judge wrongly dismissed the assessors and ignored evidence that the accused was drunk.
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 killed the deceased Josephine Petang Julius
- 2.Whether the learned Judge's discharge of the assessors, without legal justification, vitiated the trial
- 3.Whether the issue of the appellant's intoxication should have been left to the assessors and considered in determining specific intent (malice aforethought)
- 4.Whether a retrial should be ordered or an appropriate conviction and sentence substituted
Key legal issues
#Wrongful discharge of assessors in a murder trial where their aid was mandatorily required at the material time
The discharge of the assessors without legal justification, given that the repeal of the assessor requirement post-dated both the offence and the start of the trial, was an irregularity that deprived the appellant of a mandatory component of his trial
The offence was committed on 11th February 2001 and the trial began on 15th March 2006, when the law still required trials with the aid of assessors. By 20th November 2007 the requirement had been repealed, but the Judge gave no explanation for discharging the assessors. Both counsel and the Court agreed there was no legal justification, particularly in view of section 23(3) of the Interpretation and General Provisions Act. The irregularity meant the assessors' views on intoxication could never be known.
Effect of intoxication on specific intent (malice aforethought) in a murder charge
The trial Judge erred in finding there was no evidence of drunkenness; prosecution evidence of intoxication had to be considered under section 13(4) of the Penal Code and the assessors should have been directed on it
Julius admitted in cross-examination that the appellant was drunk when he arrived at the scene. The Court, relying on Said Karisa Kimunzu v Republic, held that under section 13(4) of the Penal Code a court must consider whether intoxication deprived the accused of the ability to form the specific intention required, namely malice aforethought under section 206. The Judge gave no directions on this and the assessors were not properly directed, so the benefit of the doubt went to the appellant.
Whether the appellant caused the death of the deceased
The Court affirmed the trial Judge's finding of fact that the appellant shot the deceased with an arrow, causing her death; the appellant's denial was rightly rejected
The appellant admitted fighting Julius on the material day. Julius and Jane Chepokaptalam Michael gave the same account of the appellant returning armed with a bow and arrows and firing the arrow that struck Josephine. The post-mortem attributed death to cardio-pulmonary failure secondary to the abdominal wound and septichemia. On the recorded evidence the finding could not be wrong, so the issue narrowed to intent, not identity or causation.
Interaction between appellate orders and presidential commutation of death sentences where appeals are pending
The Court's orders superseding a presidential commutation, based as that was on a conviction now found to be wrongful, and urged restraint by presidential intervention in pending appeals
The appellant may have benefited from a presidential commutation of his death sentence to life imprisonment. The Court held that any such clemency presumed the murder conviction was sound; having found the conviction and sentence wrongful, the appellate orders had to prevail. The Court took the unusual step of advising that presidential intervention be withheld in respect of prisoners whose appeals remain pending.
Legal principles established
#- Where a mandatory-trial-with-assessors regime applied and assessors are wrongly discharged, the appellate court must give the appellant the benefit of the doubt arising from the loss of the assessors' verdict
- Evidence of drunkenness may come from prosecution witnesses and cannot be ignored merely because it comes only from them; a trial court must take intoxication into account in determining specific intent for murder
- Before ordering a retrial, an appellate court is entitled to consider all circumstances including the likelihood of a conviction on the admissible evidence
Court orders
#- 1.Appeal against conviction allowed
- 2.Conviction for murder set aside and substituted with a conviction for manslaughter under section 202 of the Penal Code
- 3.Sentence of seven years imprisonment imposed under section 205 of the Penal Code, running from 9th July 2008
- 4.The orders of the Court to supersede any other orders in force regarding the appellant, including any presidential commutation
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 Kitale
- Jurisdiction invoked
- First appeal to the Court of Appeal against conviction and sentence under the Criminal Procedure Code (murder conviction under section 203 as read with section 204 of the Penal Code)
Relief refused
#Retrial order
A retrial was sought by both counsel, but the Court considered the likelihood of conviction on the available evidence and instead substituted a conviction for manslaughter
Outright acquittal
The Court was satisfied the appellant caused the deceased's death, so conviction was upheld for the lesser offence of manslaughter
Costs
No costs order made (criminal appeal)
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 allow the appellant’s appeal against the conviction and we set aside the conviction for murder and substitute it with a conviction for manslaughter under section 202 of the Penal Code.
Under section 205 of the Penal Code we now sentence the appellant to seven years imprisonment, the sentence to run from 9th July, 2008 when he was sentenced by the High Court.
the assessors having been wrongly discharged we do not know what their verdict on the issue of drunkenness would have been had they been allowed to stay up to the end and had been properly directed on that issue. We must give the benefit of that doubt to the appellant.
Evidence of drunkenness need not necessarily come from an accused person himself; such evidence can come from the prosecution witnesses and it cannot be simply ignored because it has only come from the prosecution witnesses.
before ordering a retrial, the Court is entitled to look at all the circumstances surrounding a particular case including the issue of whether a conviction is likely to be obtained, taking into account the admissible or potentially admissible evidence available.
Accordingly the orders of this Court must supersede any other orders which may be in force with regard to the appellant.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kedisia v Republic (Criminal Appeal 96 of 2008) [2009] KECA 458 (KLR)", Case Analysis (2009). Criminal Appeal (unspecified number), Court of Appeal at Eldoret. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/458/eng@2009-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.