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Case Brief · caselaw.co.ke
High CourtPartially AllowedCriminal Case No. 14 of 2018

Republic v Benjamin Kemboi Yano

High Court of Kenya
11 December 2020
1,474 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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In Kenya, you cannot use self-induced intoxication as a legal defense for criminal acts.

What this practically means

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Executive summary

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The accused, Benjamin Kemboi Yano, was charged with the murder of Edwin Maiyo on 4th August 2018 at Mugula village, Elgeyo Marakwet County, contrary to Section 203 as read with Section 204 of the Penal Code. The prosecution called four witnesses. PW1 produced a post mortem report showing multiple stab wounds and death from severe haemothorax due to assault. PW3, the deceased's mother, and PW4, an eyewitness, testified that the accused took a knife from his pocket and stabbed the deceased three times - twice on the neck and once on the mouth - during an evening of drinking changaa at the accused's home. PW2, the deceased's brother, corroborated that the two had fought and the deceased had been stabbed. The accused gave unsworn evidence denying the charge, claiming he was drunk and could not recall events, and relied on a defence of intoxication advanced by his counsel. The court held the defence untenable: it was an afterthought never raised in cross-examination, and being unsworn it had no probative value since the accused could not be cross-examined on it. Applying Section 13 of the Penal Code and the Court of Appeal decision in Kupele ole Kitaiga v Republic, the court held self-induced intoxication cannot avail an accused. Finding malice aforethought established from the deliberate stabbing of the neck, the court convicted the accused of murder under Section 203 of the Penal Code on 11th December 2020.

Key legal issues

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01

Whether the defence of intoxication was available to the accused

Holding

The defence fails: the intoxication was self-induced, raised as an afterthought only in unsworn evidence, and thus had no probative value

Reasoning

The court found no evidence during the substantive hearing, including cross-examination of prosecution witnesses, that intoxication was raised. Because the accused gave unsworn evidence, he could not be cross-examined on the claim, depriving it of probative value. Section 13(2)(a) of the Penal Code excludes self-induced intoxication, and the Court of Appeal in Kupele ole Kitaiga warns against drunkenness as a cover for criminal acts.

p. 2
02

Whether malice aforethought was established

Holding

Malice aforethought was inferred from the accused taking out a knife and stabbing the deceased three times, including twice on the neck, knowing this would fatally injure him

Reasoning

Two eyewitnesses (PW3 and PW4) placed the stabbing at the accused's hand, and the injuries were consistent with the pathologist's findings of severe haemothorax due to assault. The court held that deliberately drawing a knife and stabbing the neck constituted malice aforethought, satisfying all ingredients of murder under Section 203 of the Penal Code.

p. 3

Legal principles established

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  • Intoxication shall not constitute a defence to any criminal charge save as provided in Section 13 of the Penal Code; self-induced intoxication cannot avail an accused

Court orders

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  1. 1.The accused is found guilty of murdering the deceased under the provisions of Section 203 of the Penal Code
Jurisdiction invoked
Original criminal jurisdiction over murder contrary to Section 203 as read with Section 204 of the Penal Code

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, "Republic v Benjamin Kemboi Yano", Case Analysis (2020). Criminal Case No. 14 of 2018. Source: 

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