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Court of AppealPartially AllowedCriminal Appeal No. 58 of 2017

Rashid Siyoi Chesholei & another v Republic [2019] KECA 920 (KLR)

Court of Appeal of Kenya
7 March 2019
3,623 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal upheld one murder conviction based on strong circumstantial evidence but freed a second man convicted only on suspicion and family disputes.

What this practically means

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Executive summary

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The Court of Appeal at Eldoret (Githinji, Okwengu and Mohammed, JJ.A) heard a first appeal against a conviction and death sentence imposed by the High Court at Bungoma (Ali-Aroni, J.) for the murder of Peter Naibei Chebaskwony, whose body was found in a locked hotel room at Grandma Hotel, Kanduyi, in December 2008. The prosecution case rested entirely on circumstantial evidence. The court reiterated the settled principle that circumstantial evidence must be incompatible with the accused's innocence and incapable of explanation on any other hypothesis than guilt. It re-evaluated the evidence as a first appellate court, giving allowance for the trial judge's advantage of seeing the witnesses. Against the 1st appellant, the court found cogent circumstances: he was the last person seen with the deceased, participated in booking and sharing the hotel room, was found with the deceased's identity and electoral cards and banking withdrawal slips after the death, failed to give a credible account of his whereabouts, and did not discharge the burden under section 111(1) of the Evidence Act; his appeal was dismissed in its entirety. Against the 2nd appellant, the court found only suspicion - motive over family land and association with the 1st appellant - unsupported by evidence of aiding, abetting, counselling or procuring under section 20 of the Penal Code; his conviction was quashed and the death sentence set aside, with release ordered. The court held that counsel's concession by the respondent was not binding on it. The outcome was a partial allowance of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the circumstantial evidence was sufficient to sustain the 1st appellant's conviction for murder
  2. 2.Whether there were serious contradictions in the prosecution evidence that vitiated the conviction
  3. 3.Whether the 2nd appellant, on the basis of motive, association and conduct, could be convicted as a principal offender or as one who aided, abetted, counselled or procured the murder
  4. 4.Whether the sentence of death was deserved

Key legal issues

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01

Sufficiency of circumstantial evidence against the 1st appellant

Holding

The conviction of the 1st appellant was proper; the circumstances - last seen with deceased, booking the room, possession of deceased's documents and banking slips, and failure to discharge the burden under section 111(1) of the Evidence Act - proved guilt beyond reasonable doubt

Reasoning

The court re-evaluated Kennedy's evidence showing the 1st appellant actively participated in booking and sharing the room and left with the deceased at 10 pm, discrediting the claim of travelling to Mbale. The recovery of the deceased's identity and electoral cards and banking withdrawal slips, and the handwriting examiner's match with the ransom note, were cogent circumstantial evidence incompatible with innocence. The circumstances of death were especially within the 1st appellant's knowledge.

p. 4
02

Conviction of the 2nd appellant on suspicion of procuring the murder

Holding

The 2nd appellant's conviction was unsustainable; mere suspicion, motive and post-death association are not a proper basis for conviction

Reasoning

There was no evidence the 2nd appellant was at Bungoma when the murder was committed, nor any act from which aiding, abetting or procuring under section 20 of the Penal Code could be inferred. Bad blood over family land and communications with the 1st appellant were innocent, being friends and neighbours. He was not shown to be an accessory after the fact. The investigating officer's conclusion rested on suspicion only.

p. 4
03

Effect of the respondent's concession of the appeal

Holding

Counsel for the respondent conceded both appeals, but the court held that counsel's opinion is not binding on the court and independently evaluated the evidence

Reasoning

Mr Omwega conceded the appeals of both appellants on the grounds of suspicion and absence of the 1st appellant during recoveries. The court stated that counsel's opinion does not bind it, and proceeded to its own re-evaluation. It nonetheless allowed the 2nd appellant's appeal on its own analysis while dismissing the 1st appellant's appeal.

p. 4

Legal principles established

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  • Before a court can base a conviction on circumstantial evidence, the evidence must be incompatible with the accused's innocence and incapable of explanation on any other hypothesis than guilt, with no co-existing circumstances weakening the inference of guilt
  • A first appellate court has a duty to re-evaluate the evidence and reach its own independent findings of fact, while allowing for the trial judge's advantage of hearing and seeing the witnesses
  • Motive, suspicion or association alone cannot sustain a conviction for murder; a person may be liable under section 20 of the Penal Code only upon evidence of aiding, abetting, counselling or procuring
  • A statement by a deceased person threatening harm made while the deceased was still alive, not about the cause or circumstances of death, is not a dying declaration under section 33(a) of the Evidence Act

Court orders

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  1. 1.The appeal of the 1st appellant is dismissed in its entirety
  2. 2.The appeal of the 2nd appellant is allowed
  3. 3.The conviction of the 2nd appellant is quashed and the sentence of death set aside
  4. 4.The 2nd appellant shall be released forthwith unless otherwise lawfully held

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Bungoma
HCCRC. No. 1 of 2009
Jurisdiction invoked
First appellate jurisdiction over a conviction and sentence of the High Court (murder trial), Criminal Appeal

Relief refused

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1st appellant's appeal against conviction and sentence

The totality of the circumstantial evidence proved his guilt beyond reasonable doubt; his defence was incredible

p. 4

2nd appellant's implied claim that the State's concession bound the court

Counsel's opinion is not binding on the court, though the appeal nonetheless succeeded on the evidence

p. 4

Costs

No order as to costs was made in the judgment.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

For the foregoing reasons, the appeal of the 1st appellant is dismissed in its entirety. The appeal of the second appellant is allowed.
p. 4Final orders / disposition
The conviction of the 2nd appellant is quashed and the sentence of death set aside. The 2 nd appellant shall be released forthwith unless otherwise lawfully held.
p. 4Orders quashing conviction and setting aside sentence of 2nd appellant
It is a settled principle of law that before a court can base conviction on circumstantial evidence such evidence must be incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of guilt
p. 3Circumstantial evidence standard
There may have been bad blood between him and the deceased arising from the dispute about the properties left by their deceased father but that alone cannot make him a principle offender.
p. 4Motive and suspicion insufficient for conviction

Issues in the judgment

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minor

The judgment records counsel for the respondent as both 'Mr. Omwega' and 'Mr Omwenga', an apparent typographical inconsistency in the name

minor

No costs order appears in the final orders despite this being a criminal appeal

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, "Rashid Siyoi Chesholei & another v Republic [2019] KECA 920 (KLR)", Case Analysis (2019). Criminal Appeal No. 58 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/920/eng@2019-03-07

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