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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCourt of Appeal at Nakuru Criminal Appeal (not separately numbered in the judgment as supplied)· [2024] KECA 710 (KLR)

Cleophas Kipketer Keino v Republic

Court of Appeal of Kenya
21 June 2024
5,368 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal upheld a double-murder conviction but replaced the death sentence with 35 years in prison.

What this practically means

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Executive summary

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The appellant, Cleophas Kipketer Keino, was convicted by the High Court (H.A. Omondi J.) of two counts of murder contrary to section 203 as read with section 204 of the Penal Code for the deaths of two minors on 28th April 2008, and sentenced to death on the first count, with sentencing on the second count held in abeyance. He appealed to the Court of Appeal at Nakuru against both conviction and sentence. The court, comprising Ochieng, Achode and Korir JJ.A in a single unanimous judgment, identified the issues as whether murder was proved, whether the failure to call the investigating officer was detrimental, and whether the sentence should be disturbed. Re-examining the whole evidence as required on a first appeal under section 379(1) of the Criminal Procedure Code, the court found the eyewitness and medical evidence placed the appellant at the scene as the aggressor armed with a panga. It held that failure to produce the murder weapon and failure to call the investigating officer were not fatal to the prosecution's case, that motive was immaterial under section 9(3) of the Penal Code, and that malice aforethought was inferable from the weapon used, the injuries and the circumstances. The appeal against conviction was dismissed in its entirety. On sentence, applying the post-Muruatetu jurisprudence and Bernard Kimani Gacheru, the court found the death sentence amenable to interference, and substituted imprisonment of 35 years on each count, to run concurrently, with credit under the proviso to section 333(2) of the Criminal Procedure Code. The appeal therefore partially succeeded: conviction affirmed, sentence varied.

Key legal issues

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01

Ingredients of murder

Holding

The ingredients are proof of death, proof that the accused caused it, and proof of malice aforethought; all were established on the evidence.

Reasoning

The court reiterated that murder requires proof of the fact and cause of death, the accused's involvement, and malice aforethought. Eyewitness testimony placed the appellant at the scene as the aggressor armed with a panga, and postmortem evidence established both deaths. The defence version did not dislodge the corroborated prosecution evidence.

02

Motive versus malice aforethought

Holding

Motive need not be proved; malice aforethought may be inferred from the surrounding circumstances.

Reasoning

Counsel argued motive was not proved, but section 9(3) of the Penal Code renders motive immaterial. Malice aforethought under section 206 is deemed established by, among other things, intention to cause death or grievous harm, and may be inferred from the weapon used, the injuries inflicted, and the conduct of the accused.

p. 8
03

Non-production of the murder weapon

Holding

Non-production of the panga was not fatal where witnesses identified and described the weapon.

Reasoning

Although the panga was never produced as an exhibit, three witnesses saw the appellant arrive with and use it, and a fourth saw him flee with it. The witnesses described it as having a rubber handle, and the injuries were consistent with a panga. Following Karani v. Republic and other authorities, the court held conviction may stand without production of the weapon.

p. 6
04

Failure to call the investigating officer

Holding

Not automatically fatal; the remaining evidence sufficiently proved the appellant's involvement.

Reasoning

While good practice requires the investigating officer to testify and tie together the prosecution's case, the failure does not automatically result in an acquittal. Here, the eyewitness and medical evidence was sufficient, and the only additional contribution the officer might have made was producing the weapon, which was not fatal to omit.

p. 3
05

Sentence

Holding

Death sentence set aside and substituted with 35 years' imprisonment on each count, running concurrently.

Reasoning

Sentence is discretionary to the trial court and interference requires it be manifestly excessive or that a material factor was overlooked. Considering the appellant's remorse and 11 years in remand against the aggravating factor of two innocent lives lost, a stiff custodial sentence of 35 years per count, concurrent as the offences were in a single transaction, was appropriate.

p. 9

Legal principles established

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  • On a first appeal, the Court of Appeal must subject the entire evidence tendered in the trial court to fresh and exhaustive examination and reach its own independent conclusions, while giving allowance for not having seen or heard the witnesses.
  • Failure to produce the murder weapon is not fatal to the prosecution's case where sufficient evidence establishes the type of weapon used.
  • Failure to call the investigating officer does not automatically result in an acquittal; each case must be considered on its own circumstances.
  • Motive is immaterial to criminal responsibility unless expressly required by law.
  • An appellate court will not easily interfere with sentence unless it is manifestly excessive, or the trial court overlooked a material factor, took into account wrong material, or acted on a wrong principle.

Court orders

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  1. 1.The appeal against conviction is dismissed
  2. 2.The death sentence imposed in count 1 is set aside and substituted with imprisonment for 35 years on each of the two counts
  3. 3.The sentences shall run concurrently
  4. 4.The term shall comply with the proviso to section 333(2) of the Criminal Procedure Code as per records held by the prison authorities
On appeal from
High Court of Kenya
Jurisdiction invoked
Section 379(1) of the Criminal Procedure Code and Rule 31(1)(a) of the Court of Appeal Rules, 2022 (first appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Cleophas Kipketer Keino v Republic", Case Analysis (2024). Court of Appeal at Nakuru Criminal Appeal (not separately numbered in the judgment as supplied). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/710/eng@2024-06-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.