Ojwang & 9 others v Republic (Criminal Appeal 107 of 2017) [2023] KECA 365 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed ten murder convictions, ruling that recognising attackers by torchlight and car headlights was reliable despite the dark night.
What this practically means
#Executive summary
#Key legal issues
#Reliability of recognition evidence in dark, mob-violence conditions
Conviction was safe: although several witnesses described a dark night, there were two independent light sources (vehicle lights and torches), the assailants were people well known to the witnesses, the assault lasted about an hour, and the witnesses were in close proximity to the assailants.
The court evaluated the evidence afresh as a first appellate court. It accepted the trial judge's endorsement of the credibility of PW1, PW3 and PW4, noting the absence of suggested grudge or animus, and held that inconsistencies between police statements and testimony reflected the climate of fear after the killings rather than unreliability. Following Wamunga and Turnbull, it found the circumstances of identification favourable and free from possibility of error.
Treatment of alibi defences raised late in the trial
The alibis, raised for the first time at the defence hearing, could only be tested by weighing them against the prosecution evidence; when so weighed they were overawed by the materially consistent evidence of PW1, PW2, PW3 and PW4.
Relying on Athuman Salim Athuman and Ganzi & 2 Others v Republic, the court held that a late-raised alibi cannot be ignored but also imposes no burden of proof on the accused; the trial court properly discharched its task by placing the alibi accounts on a scale against the prosecution evidence, and the appellate court reached the same conclusion on its own evaluation.
Effect of a successful resentencing petition on an appeal against the original sentence
The appellants' challenge to the original sentences was spent and extinguished by their successful petitions for resentencing; any grievance lay against the fresh sentences, not the original ones, and the court declined to consider the sentence grounds at all.
Following the Muruatetu directions, the appellants petitioned the High Court for resentencing; their sentences were set aside and fresh sentencing conducted. Having taken their chance at resentencing, they could no longer appeal against the sentences imposed by the trial court in 2017; the proper remedy was an appeal against the resentencing outcome.
Legal principles established
#- Where the only evidence against an accused is identification or recognition evidence, the trial court must examine it carefully and be satisfied the circumstances of identification were favourable and free from the possibility of error before basing a conviction on it.
- Where an alibi is raised for the first time in the defence hearing, the trial court must weigh the alibi against the totality of the prosecution evidence rather than require the accused to prove it.
- An appeal against sentence is extinguished once the accused has petitioned for and obtained resentencing; the proper course is to appeal against the outcome of the resentencing itself.
Court orders
#- 1.Appeal against both conviction and sentence dismissed
- On appeal from
- High Court of Kenya at Migori
- High Court Criminal Case No. 46 of 2014
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Act over an appeal from the High Court in a criminal trial (trial court exercised original criminal jurisdiction on murder charges)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ojwang & 9 others v Republic (Criminal Appeal 107 of 2017) [2023] KECA 365 (KLR)", Case Analysis (2023). Criminal Appeal (not specified in judgment; appeal against conviction and sentence from Migori High Court Criminal Case No. 46 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/365/eng@2023-03-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.