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Court of AppealDismissedNot stated in the judgment (Criminal Appeal from High Court, West Pokot)

Alimaris v Republic (Criminal Appeal 134 of 2018) [2023] KECA 134 (KLR)

Court of Appeal of Kenya
10 February 2023
4,788 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a first appeal to the Court of Appeal at Nakuru against conviction and sentence for the murder of Geofirey Thomas Loweti, shot with an arrow at Selewo, West Pokot County on 23rd/24th November 2016, for which the High Court had sentenced the appellant to life imprisonment. The appellant, in six amended grounds, argued mistaken identity, failure of proof beyond reasonable doubt, fatal contradictions in the prosecution case, absence of malice aforethought, and an unlawful shifting of the burden of proof. The Court, comprising Sichale, Ochieng and Achode JJ A in a single judgment, framed three issues: proof of murder, the effect of contradictions, and the lawfulness of the sentence. Re-evaluating the evidence as required on a first appeal, the Court found that eyewitnesses PW2 and PW3, corroborated by dying declarations recorded by police officers PW5 and PW6, positively placed the appellant at the scene firing the fatal arrow in broad daylight among neighbours well known to each other, disposing of the mistaken-identity claim as an afterthought. Applying section 206 of the Penal Code, the Court inferred malice aforethought from the use of a bow and arrow. Relying on section 382 CPC and established authority, it held the discrepancies trivial and non-fatal. On sentence, the Court declined to make any determination because the appellant never canvassed the issue. The appeal was dismissed in its entirety, the conviction and life sentence being affirmed.

Questions the Court framed

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

  1. 1.Whether the prosecution proved the offence of murder against the appellant
  2. 2.Whether contradictions in the prosecution case were of a fatal nature to the case against the appellant
  3. 3.Whether the sentence issued against the appellant is lawful

Key legal issues

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01

Whether the prosecution proved the offence of murder against the appellant

Holding

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.

Reasoning

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.

p. 6
02

Whether malice aforethought was established

Holding

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.

Reasoning

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.

p. 7
03

Whether contradictions in the prosecution case were fatal

Holding

No. The discrepancies, including which hospital the deceased was referred to, were trivial and did not affect the substratum of the case.

Reasoning

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.

p. 8
04

Whether the sentence of life imprisonment is lawful

Holding

The court declined to determine the issue because the appellant did not canvass sentence in his grounds or submissions.

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 1.The appeal against conviction is dismissed
  2. 2.The conviction and sentence of life imprisonment are sustained
  3. 3.The appeal in its entirety is dismissed

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
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

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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

p. 9

Determination on sentence

The appellant did not canvass any issue pertaining to the sentence

p. 9

Costs

No costs order 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.

The upshot of the foregoing is that the appellant’s appeal against conviction is without merit and is hereby dismissed.
p. 8Disposition on conviction
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.
p. 9Final orders dismissing the appeal
The conviction against the appellant is therefore safe and is sustained.
p. 7Sustaining the conviction
We are mandated to re-evaluate, and independently assess the evidence on record and come out with our own independent conclusion.
Duty of first appellate court
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.
p. 6Standard of proof

Issues in the judgment

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minor

The judgment inconsistently refers to the governing statute as both the 'Criminal Procedure Act' and the 'Criminal Procedure Code'

minor

The name of the deceased is rendered inconsistently throughout the judgment (Loweti, Losweti, Geofirey Thomas)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.