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Court of AppealAllowedCriminal Appeal No. 121 of 2016· [2018] KECA 539 (KLR)

Jonathan Kiplimo v Republic [2018] KECA 539 (KLR)

Court of Appeal of Kenya
31 May 2018
2,654 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal freed a murder convict because convictions cannot rest on hostile witnesses' retracted statements or incomplete circumstantial evidence.

What this practically means

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Executive summary

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This is a judgment of the Court of Appeal at Eldoret (Githinji, Okwengu and J. Mohammed, JJ. A.) allowing a first appeal by Jonathan Kiplimo against his conviction for the murder of Joshua Chemwolo and the death sentence imposed by Kimondo J of the High Court at Eldoret on 10th May 2016 in HCCRC. No. 19 of 2011. The prosecution case rested largely on circumstantial evidence, because the only purported eyewitnesses who had identified the appellant, Alex Kiplagat and Patrick Kiprop, denied at trial having seen him stab the deceased and were declared hostile, while other witnesses present at the scene saw nothing. The Court held that the trial judge's conclusion of guilt was anchored on the recanted police statements of the hostile witnesses, which carried no probative value without proper corroboration. Applying the three Abanga tests for circumstantial evidence, the Court found that the report made to the police was hearsay, that the investigating officer's information came from witnesses who denied the identification, that the appellant's presence at the scene gave him no greater opportunity than others present and was supported by a probable explanation, and that the pathologist's evidence could not corroborate the identity of the assailant. The Court further held that, having undertaken a trial de novo, the judge could not rely on evidence adduced in the earlier proceedings before Azangalala J, since those proceedings ceased to exist. Finding the conviction unsafe, the Court allowed the appeal, set aside the conviction and directed that the appellant be set free unless otherwise lawfully held. The judgment binds lower courts on the evidential value of hostile witnesses' retracted statements, the de novo trial rule, and the complete-chain requirement for circumstantial evidence.

Key legal issues

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01

Evidential value of hostile witnesses' retracted statements

Holding

Statements made to the police by witnesses later declared hostile, and their testimony denying the identification of the appellant, carry little or no probative value and cannot anchor a conviction without proper corroboration.

Reasoning

Alex and Patrick were the purported eyewitnesses identifying the appellant. Both denied seeing the appellant stab the deceased and were declared hostile by the prosecution. Their prior police statements implicating a motor vehicle driver were inconsistent with their testimony and, having been retracted, were of little probative value. The trial judge's conclusion rested on those recanted statements, which was unsafe.

p. 3
02

Failure of the circumstantial evidence to meet the required tests

Holding

The circumstances relied on did not point irresistibly to the appellant's guilt and did not exclude the possibility that the deceased was injured by another person; the conviction on circumstantial evidence therefore failed the Abanga tests.

Reasoning

The court applied the conditions in Abanga Alias Onyango v Republic as restated in Erick Odhiambo Okumu v Republic: the circumstances must be firmly established, unerringly point to the accused, and form a complete chain. Here, the report to the police was hearsay, the investigating officer's information came from witnesses who denied the identification, mere presence at the scene was inconclusive, and the pathologist could not corroborate identity.

p. 3
03

Corroboration from presence at the scene and from pathology

Holding

Mere presence at the scene afforded opportunity to many people present and could not corroborate identity; the pathologist's evidence confirmed cause of death but not the identity of the assailant.

Reasoning

The trial judge found corroboration in the appellant's presence at the scene and in the pathologist's evidence. The court held that several other people were at the scene with similar opportunity, and the appellant gave a probable explanation for his presence including the damaged windscreen. The pathologist only confirmed the injuries and cause of death, which could not corroborate who inflicted them.

p. 3
04

Effect of trial de novo on earlier proceedings

Holding

A judge conducting a trial de novo may not refer to or rely on evidence adduced in the earlier proceedings before a different judge, as those proceedings ceased to exist.

Reasoning

The trial was ordered to start de novo before Kimondo J. The learned judge nonetheless relied on evidence earlier adduced by Alex and Patrick before Azangalala J. The court held that in a trial de novo the earlier proceedings cease to exist and cannot be referred to, so reliance on that evidence was an error vitiating the conviction.

p. 3

Legal principles established

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  • Evidence of witnesses declared hostile, including their retracted prior statements, cannot be relied upon to convict without proper corroboration.
  • Where a trial is conducted de novo, proceedings before the earlier judge cease to exist and evidence adduced in them can no longer be referred to.
  • Circumstantial evidence can found a conviction only where the circumstances are cogently established, unerringly point to the accused, and form a chain so complete as to exclude any other person as the perpetrator.
  • A trial judge cannot substitute conjecture for cogent evidence by conjuring up a scenario of what is believed to have occurred.

Court orders

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  1. 1.Appeal allowed
  2. 2.Conviction set aside
  3. 3.Appellant to be set free unless otherwise lawfully held

Authorities

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Legislation

  • Penal Codesection 203 as read with section 204
  • Evidence Actsection 163(1)

Cases cited (7)

  • Ndung'u Kimanyi vs Republic
    [1979] KLR 282
  • Mwangi vs Republic
    [1983] KLR 522
  • Opo v Republic
    [1976-80] 1 KLR 1669
  • Armstrong Kisuva v Republic
    Eldoret, High Court, Criminal Appeal 88 of 2011 [2016] eKLR
  • Erick Odhiambo Okumu v Republic
    [2015] eKLR
  • Musili Tulo v Republic
  • Abanga Alias Onyango v Republic
    Cr. App. No 32 of 1990
On appeal from
High Court of Kenya at Eldoret
HCCRC. No. 19 of 2011
Jurisdiction invoked
Appellate jurisdiction over appeals from the High Court in criminal matters (Court of Appeal, first appellate court over High Court murder conviction and death sentence)

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, "Jonathan Kiplimo v Republic [2018] KECA 539 (KLR)", Case Analysis (2018). Criminal Appeal No. 121 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/539/eng@2018-05-31

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