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Court of AppealDismissedCriminal Appeal 41 of 2014· [2022] KECA 559 (KLR)

Okeno & another v Republic

Court of Appeal
10 June 2022
DMD K MusingaKMK M'InotiSKS ole Kantai
940 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld two murder convictions and 30-year sentences, ruling that being drunk is no defence when an attack was planned.

What this practically means

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Executive summary

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This is a first appeal from the judgment of the High Court of Kenya at Nakuru (Emukule, J.) dated 13th June 2014, by which the two appellants were convicted of the murder of Robert Ouko Oliech contrary to Sections 203 and 204 of the Penal Code and sentenced to 30 years' imprisonment. The appeal was argued solely on grounds of mitigation: the appellants described themselves as remorseful first offenders, young unmarried men, rehabilitated after long custody, and claimed they were drunk at the time of the offence and suffered temporary insanity. The State, through Miss Chelangat, submitted that no issues of law or fact were raised in the mitigation. The Court of Appeal (Musinga, M'Inoti and ole Kantai, JJA) rehearsed the prosecution evidence: the appellants armed themselves with a knife and a Somali sword, boasted to PW2 that they would kill someone that day, fought the deceased and stabbed him; the doctor found the cause of death was excessive bleeding from a stab wound. The trial Judge had rejected the defence of intoxication under Section 207 of the Penal Code, finding a deliberate decision to go out and kill, after which the appellants confirmed their act to PW2. The appellate court agreed with those findings, held that the appellants had admitted the acts in their appeal, and found no reason in law to interfere with the convictions or the sentence, which the trial Judge had imposed after considering mitigation and Articles 23 and 26 of the Constitution. The appeal was dismissed in its entirety.

Key legal issues

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01

Re-evaluation of evidence on first appeal

Holding

The Court reached the same conclusion as the trial Judge on the evidence and declined to interfere.

Reasoning

The Court noted the Okeno duty to re-evaluate evidence but found it unnecessary to dwell on it given the appellants' position. The prosecution evidence showed the appellants armed themselves with a knife and Somali sword, boasted they would kill someone, and stabbed the deceased, who died of excessive bleeding.

p. 2
02

Defence of intoxication

Holding

The defence of intoxication as defined by Section 207 of the Penal Code was not available to the appellants.

Reasoning

The trial Judge found the appellants were not intoxicated and that there was a deliberate decision to go out and kill the deceased, after which they confirmed to PW2 what they had done. The appellate court agreed with these findings.

p. 2
03

Sentence

Holding

The 30-year sentence, imposed in place of the death sentence prescribed by Section 204 of the Penal Code, was not disturbed.

Reasoning

The trial Judge considered the appellants' mitigation (remorse, youth, long custody) and applied Articles 23 and 26 of the Constitution on the right to life and an interpretation enhancing rather than detracting from rights. The appellate court found no reason in law to interfere.

p. 2

Legal principles established

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  • In a first appeal the Court of Appeal must re-evaluate the evidence and come to its own conclusions of fact, while remembering it lacks the advantage of seeing or hearing the witnesses.
  • The defence of intoxication under Section 207 of the Penal Code is unavailable where there was a deliberate decision to attack the deceased.

Court orders

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  1. 1.The appeal is dismissed in its entirety

Authorities

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Legislation

  • Penal CodeSection 203
  • Penal CodeSection 204
  • Penal CodeSection 207
  • Constitution of Kenya, 2010Article 23
  • Constitution of Kenya, 2010Article 26

Cases cited (1)

  • Okeno v Republic
    [1972] EA 32

    Duty of a first appellate court to re-evaluate evidence and reach its own conclusions of fact.

On appeal from
High Court of Kenya at Nakuru
HC. CR.C. No. 50 of 2008
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction over High Court criminal matters (Criminal Procedure Code / Article 164(1)(a))

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, "Okeno & another v Republic", Case Analysis (2022). Criminal Appeal 41 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/559/eng@2022-06-10

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