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Court of AppealPartially AllowedCriminal Appeal No. 20 of 2018· [2020] KECA 726 (KLR)

Josphat Otieno v Republic [2020] KECA 726 (KLR)

Court of Appeal of Kenya
24 April 2020
WKW. KaranjaHOHannah OkwenguFSF. Sichale
3,484 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld a murder conviction but replaced the death sentence with 15 years imprisonment, confirming that death is no longer automatic for murder.

What this practically means

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Executive summary

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This is a first appeal to the Court of Appeal at Nairobi against the conviction and sentence imposed by Lesiit, J on 5th November 2015 in HC. CR.C No. 32 of 2012, in which the appellant, Josphat Otieno alias Bush, was convicted of the murder of Geoffrey Ochieng, committed on 22nd February 2012 at Dandora, Nairobi, and sentenced to death. Two eyewitnesses (P.W.2 and P.W.3) and P.W.6 testified to the appellant pursuing the deceased into the Nairobi River and stabbing him with a pen-knife on the chest and neck; the postmortem established death from cardiac tamponade due to a penetrating stab wound. The appellant advanced an unsworn defence that the deceased had cut him with scissors, raising self-defence and provocation on appeal, and relying on Hussein S/O Mohammed to contend the offence should have been manslaughter. The Court, restating the Okeno duty of a first appellate court to re-evaluate the evidence, held that the defences of self-defence and provocation failed because the appellant had time to cool off, ignored an appeal for amicable resolution, and used wholly unreasonable and excessive force against an unarmed man walking away. Malice aforethought was established under section 206 of the Penal Code. The Court affirmed the conviction but, applying Muruatetu and considering the appellant's youth, first-offender status and personal circumstances, set aside the death sentence and substituted fifteen years imprisonment. The bench of Karanja, Okwengu and Sichale, JJA delivered a single unanimous judgment on 24th April 2020.

Key legal issues

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01

Malice aforethought for murder

Holding

Malice aforethought was established; the conviction for murder was properly founded.

Reasoning

The appellant unfolded a pen-knife, pursued the deceased into the river despite intervention, stabbed him on the chest and neck, and while the deceased lay helpless remarked he could chop off his legs and take his shoes. The court held this showed an intention to cause death, satisfying section 206(a) of the Penal Code.

p. 5
02

Self-defence and provocation

Holding

Neither defence was available: any provocation had cooled and the force used was wholly unreasonable and excessive against an unarmed man walking away.

Reasoning

The court agreed with the trial judge that sufficient time elapsed between the alleged provocation (the scissors injury) and the stabbing, during which P.W.3 urged reconciliation. The deceased was unarmed and walking away; it was the accused who endangered the deceased's life, not vice versa, negating self-defence and provocation.

p. 5
03

Sentence for murder

Holding

The death sentence was set aside and substituted with fifteen (15) years imprisonment, considering Muruatetu, the appellant's youth, first-offender status and personal circumstances.

Reasoning

Following Francis Karioko Muruatetu & another v Republic, death is no longer the only sentence for murder. The court considered that the appellant was a first offender, about twenty years old at the time of the offence, an orphan doing apprenticeship at his brother-in-law's garage, and deemed fifteen years an appropriate sentence.

p. 6

Legal principles established

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  • A first appellate court must re-evaluate the evidence afresh, weigh conflicting evidence and draw its own conclusions, while making allowance for the trial court's advantage of seeing and hearing the witnesses.
  • A death sentence is no longer the mandatory or only sentence for murder following Muruatetu; appellate courts may substitute an appropriate determinate sentence considering the offender's age, status as a first offender and personal circumstances.
  • Malice aforethought may be inferred where the accused, armed with a weapon, inflicts fatal injuries on an unarmed, fleeing or helpless victim and continues the attack.

Court orders

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  1. 1.Conviction for murder affirmed
  2. 2.Sentence of death set aside and substituted with a sentence of fifteen (15) years imprisonment
  3. 3.It is so ordered

Authorities

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Legislation

  • Penal Codesection 203 as read with section 204
  • Penal Codesection 206

Cases cited (3)

  • Republic vrs. Hussein S/O Mohammed
    [1942] EACA at page 66
  • Francis Karioko Muruatetu & another vs. Republic
    [2017] eKLR
  • Okeno vs. Republic
    [1972] EA 32
On appeal from
High Court of Kenya at Nairobi
HC. CR.C No. 32 of 2012
Jurisdiction invoked
First appeal to the Court of Appeal against conviction and sentence (Criminal Appeal No. 20 of 2018)

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, "Josphat Otieno v Republic [2020] KECA 726 (KLR)", Case Analysis (2020). Criminal Appeal No. 20 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/726/eng@2020-04-24

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