Chengo & 4 others v Republic (Criminal Appeal 80, 81, 82, 83 & 84 of 2022 (Consolidated)) [2023] KECA 1069 (KLR)
The bottom line
#Kenya's Court of Appeal freed two murder convicts because presence at a mob killing isn't proof of participation, and cut three others' sentences from 35 to 20 years.
What this practically means
#Executive summary
#Key legal issues
#Duty of a first appellate court
The Court must analyse and re-assess the evidence on record and reach its own conclusions, making allowance for the trial court's advantage of seeing and hearing witnesses
Relying on the classic statement in Okeno v Republic, the Court restated that a first appeal is by way of retrial: the appellate court must weigh conflicting evidence, draw its own conclusions, and only then decide whether the trial court's findings should be supported, while bearing in mind the trial court's advantages.
Proof of individual participation in a mob killing
The conviction of the 4th and 5th Appellants was unsafe because the trial judge made no finding on their roles and the single identifying evidence of PW2 was insufficient; the prosecution must adduce evidence of each accused's role
PW1 only placed the 4th and 5th Appellants among many people at the scene without attributing any role; PW2 alone mentioned them lighting fire. In a charged mob atmosphere, a genuine mistake as to roles is possible, so the single identifying witness's evidence required corroboration in the circumstances and could not meet the threshold of proof beyond reasonable doubt.
Identification by recognition and necessity of an identification parade
Recognition evidence of well-known assailants was reliable and an identification parade was unnecessary; the alibi defences were rejected
The offence occurred at about 8.00 am in daylight, PW2 was in the vicinity, saw the 1st, 2nd and 3rd Appellants very well and was even threatened by them. Since the Appellants were people well known to PW1 and PW2, an identification parade was unnecessary and the alibi evidence could not displace the overwhelming recognition evidence.
Sentence for mob-action murder
35 years' imprisonment was manifestly excessive; reduced to 20 years from the date of arraignment
Considering that the death resulted from a mob action, the Court found the 35-year term excessive and substituted 20 years, leaving undisturbed the commencement date fixed by the trial judge as the date of arraignment on 5th November 2018.
Legal principles established
#- In mob-justice killings, the prosecution must prove the specific role played by each accused person; mere presence at the scene does not establish criminal culpability
- A first appellate court must re-analyse and re-assess the whole evidence and reach its own conclusions, not merely check whether some evidence supported the trial court
Court orders
#- 1.Appeal of the 4th and 5th Appellants allowed; their conviction set aside and sentence quashed; they to be set at liberty forthwith unless otherwise lawfully held
- 2.Appeals of the 1st, 2nd and 3rd Appellants on conviction dismissed
- 3.Sentence of 35 years' imprisonment for the 1st, 2nd and 3rd Appellants set aside and substituted with 20 years' imprisonment, commencing from the date of arraignment on 5th November 2018
- On appeal from
- High Court of Kenya at Malindi
- Criminal Case No. 19 of 2018
- Jurisdiction invoked
- First appeal to the Court of Appeal against conviction and sentence (the judgment does not cite a specific constitutional or statutory basis for the appellate jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chengo & 4 others v Republic (Criminal Appeal 80, 81, 82, 83 & 84 of 2022 (Consolidated)) [2023] KECA 1069 (KLR)", Case Analysis (2023). Criminal Appeal (not expressly numbered in the judgment; appeal from Malindi High Court Criminal Case No. 19 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1069/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.