Chege & 3 others v Republic (Criminal Appeal 23, 34 & 35 of 2022 (Consolidated)) [2023] KECA 466 (KLR)
The bottom line
#Kenya's Court of Appeal freed four police officers convicted over a British tourist's death in custody, ruling the convictions rested on conjecture, not proof.
What this practically means
#Executive summary
#Key legal issues
#Whether the circumstantial evidence proved that the appellants inflicted or were responsible for the fatal injuries
The trial Judge's finding that the deceased was removed from the cell and tortured between 3.00 and 5.00 a.m. had no evidential basis; cellmates and witnesses contradicted it, and the injuries could possibly have been sustained before the deceased was handed over to the police.
The first appellate court re-evaluated the whole evidence. All cellmates (PW12, PW15, PW17, PW18) confirmed the deceased never left the cell and that there was no commotion or struggle. The trial Judge's 'only rational explanation' rested on conjecture, not evidence. The bouncer and treating doctor were not called, leaving gaps. Under PON v Republic, guilt must be the only rational inference; any possibility consistent with innocence requires a finding of not guilty.
Whether the expert opinion (PW25) fixed the time of injury as after 2.30 a.m.
The expert opinion could not be accepted without corroboration; there being no evidence of when and where the injury was inflicted, the prosecution failed to establish causation.
Citing Dhalay v Republic, the court held expert opinions are not binding and may be rejected on cogent grounds. There was no evidence the deceased left the cell after 2.30 a.m., so the opinion that the injury was inflicted thereafter was unsupported. The prosecution thus failed to prove the time, place and author of the head injury, leaving open the possibility the injury predated police custody.
Whether the appellants were guilty of manslaughter by culpable negligence for failing to provide medical care
No. Gross-negligence manslaughter requires proof of a duty, breach, causation and gross disregard for life; the prosecution failed to prove the appellants knew of the need for medical attention.
Applying R v Bateman, the court held the duty of care could not be general or at large. The connection of the 1st and 2nd appellants, senior Tourist Unit officers, was remote where they were not informed of any need for medical care. Even the doctors who examined the deceased missed the head injury, so the appellants could not be blamed for failing to notice it.
Legal principles established
#- On a first appeal the appellate court must reconsider, re-analyse and re-evaluate the evidence afresh and reach its own conclusions.
- A conviction on circumstantial evidence is only permissible where guilt is not merely a rational inference but the only rational inference, and any reasonable possibility consistent with innocence requires an acquittal.
- An inference of guilt founded on conjecture rather than evidence cannot sustain a conviction; an expert opinion is not binding and must be tested against all other evidence.
- Custodial officers' liability for negligent failure to provide medical care requires proof that they actually knew, or could not but have known, that the detainee needed medical attention; the duty cannot be general or at large.
Court orders
#- 1.The appellants' appeals are allowed
- 2.The convictions against each appellant are quashed
- 3.The sentences are set aside
- 4.The appellants shall be set at liberty forthwith unless otherwise lawfully held in custody
- On appeal from
- High Court of Kenya at Mombasa
- Jurisdiction invoked
- First appeal to the Court of Appeal under section 348A of the Criminal Procedure Code (first appellate jurisdiction); State's enhancement notice under Article 159 of the Constitution, sections 3(A) and 3(B) of the Appellate Jurisdiction Act and rules 4 and 12 of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chege & 3 others v Republic (Criminal Appeal 23, 34 & 35 of 2022 (Consolidated)) [2023] KECA 466 (KLR)", Case Analysis (2023). Criminal Appeal (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/466/eng@2023-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.