Alimaris v Republic (Criminal Appeal 134 of 2018) [2023] KECA 134 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a West Pokot man's murder appeal, confirming his life imprisonment sentence after eyewitnesses and dying declarations identified him as the shooter.
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 prosecution proved the offence of murder against the appellant
- 2.Whether contradictions in the prosecution case were of a fatal nature to the case against the appellant
- 3.Whether the sentence issued against the appellant is lawful
Key legal issues
#Whether the prosecution proved the offence of murder against the appellant
Yes. The evidence of PW2 and PW3, corroborated by the dying declarations to the police officers, positively identified the appellant as the person who shot the deceased in broad daylight among neighbours well known to one another; the defence of mistaken identity was an afterthought.
The court re-evaluated the entire record as the first appellate court. Multiple eyewitnesses placed the appellant at the scene with bow and arrows, shooting at PW2, PW3 and the deceased in daylight. The dying declarations to PW5 and PW6 identified the appellant. The identification was that of a known neighbour, not a stranger, dispelling mistaken identity. The defence version was dismissed as a story meant to hoodwink the court.
Whether malice aforethought was established
Yes. By firing an arrow from a bow, the appellant knew his act would probably cause death or grievous harm, satisfying section 206(b) of the Penal Code.
Applying section 206 of the Penal Code and the surrounding-circumstances test from Bonaya Tutu Ipu and Chesakit v Uganda, the court considered the weapon used, the part of the body struck and the appellant's conduct in firing successive arrows at multiple persons. An arrow fired from a bow plainly carries the possibility of death or grievous harm, so knowledge could be imputed.
Whether contradictions in the prosecution case were fatal
No. The discrepancies, including which hospital the deceased was referred to, were trivial and did not affect the substratum of the case.
Guided by section 382 CPC and Joseph Maina Mwangi, the court held that only substantial and fundamental contradictions create doubt. The apparent confusion between the two persons named Thomas was resolved on a careful reading of the evidence, and the hospital-referral discrepancy was immaterial to the central issue of who shot the deceased.
Whether the sentence of life imprisonment is lawful
The court declined to determine the issue because the appellant did not canvass sentence in his grounds or submissions.
Citing Ahamad Abolfathi Mohammed, the court reiterated that an appellant seeking intervention on sentence must show the trial court acted on wrong principles or that the sentence is manifestly excessive. Since the appellant raised no such issue, there was no legal basis for any determination on a matter not in issue in the appeal.
Legal principles established
#- As a first appellate court, the Court of Appeal must re-evaluate and independently assess the evidence on record and reach its own conclusion, while being slow to reverse trial court findings of fact given its advantage of seeing and hearing witnesses.
- The standard of proof in criminal trials is proof beyond reasonable doubt, which need not reach certainty but must carry a high degree of probability.
- Malice aforethought in murder is rarely proved by direct evidence and is generally inferred from the surrounding circumstances, including the part of the body injured, the type of weapon used, the injuries inflicted and the accused's conduct.
- Only contradictions that are substantial and fundamental to the main issues are capable of creating doubt; trivial discrepancies that do not affect the substratum of the case are inconsequential.
Court orders
#- 1.The appeal against conviction is dismissed
- 2.The conviction and sentence of life imprisonment are sustained
- 3.The appeal in its entirety is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated
- Jurisdiction invoked
- Section 379(1) of the Criminal Procedure Code and Rule 31(1)(a) of the Court of Appeal Rules, 2022 (first appeal against conviction and sentence)
Relief refused
#Setting aside of the conviction and life sentence
The prosecution proved the murder beyond reasonable doubt; the alleged contradictions were not fatal; and no ground on sentence was canvassed
Determination on sentence
The appellant did not canvass any issue pertaining to the sentence
Costs
No costs order made in the judgment
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.
The upshot of the foregoing is that the appellant’s appeal against conviction is without merit and is hereby dismissed.
The upshot of the foregoing and on the basis of the reasons we have elaborated above, this appeal is without merit and is hereby dismissed.
The conviction against the appellant is therefore safe and is sustained.
We are mandated to re-evaluate, and independently assess the evidence on record and come out with our own independent conclusion.
It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt.
Issues in the judgment
#The judgment inconsistently refers to the governing statute as both the 'Criminal Procedure Act' and the 'Criminal Procedure Code'
The name of the deceased is rendered inconsistently throughout the judgment (Loweti, Losweti, Geofirey Thomas)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kiteria & another v Kiteria (Civil Application E010 of 2024) [2024] KECA 755 (KLR)[2024] KECA 755 (KLR)21 Jun 2024
Cite this brief
#Cite this brief
Caselaw, "Alimaris v Republic (Criminal Appeal 134 of 2018) [2023] KECA 134 (KLR)", Case Analysis (2023). Not stated in the judgment (Criminal Appeal from High Court, West Pokot). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/134/eng@2023-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.