Amrittal Bhagwanji Shah, Samuel Elikana Ondari Bosire, Bernard Chunga
Joseph Cheruiyot Langat v Republic  eKLR
Joseph Cheruiyot Langat v Republic
Court of Appeal, at Nakuru
March 15, 2002
Chunga CJ, Shah & Bosire JJ A
Criminal Appeal No 183 of 2000
(Appeal from a judgment and sentence of the High Court at Kericho, Ondeyo J, dated October 27, 2000 in HCCC No 22 of 1998)
Criminal Law - provocation – provocation as a defence to a charge of murder – circumstances in which provocation may not suffice to reduce such a charge to manslaughter – Penal Code (cap 63) sections 207, 298.
Assessors – excluding of assessor from trial – Criminal Procedure Code (cap 75) section 298(1)–– circumstances in which a court may exclude an assessor – whether proper to exclude assessor without inquiring as to the reasons for his absence – court not taking any steps to ensure the assessor’s attendance before excluding him – assessor absent during final submissions and summing up–– whether assessor’s absence a curable defect or fatal to the conviction of the accused.
The appellant was convicted by the High Court on an information charging him with the murder of his father, who had died as a result of severe haemorrhage from three cut wounds inflicted on his head, neck and wrist. At a resumed hearing of the case following the close of the evidence for the defence, one of the three assessors had been absent and the trial judge had made an order excluding him from the trial so that the submissions of counsel and the summing up proceeded in his absence.
In her judgment, the trial judge rejected the defence case that it was the deceased who had attacked and provoked the appellant. She found also that the nature, number and severity of the injuries sustained by the deceased was inconsistent with the appellant’s defence that he had cut the deceased by mistake and that if anything, they showed that he had the necessary malice aforethought to support the charge of murder.
On appeal, the appellant argued that the trial judge had erred convicting him and in failing to consider that he had only been defending himself and that he had no ill motive. His advocate also submitted that he lacked the necessary mens rea and that even if he had used disproportionate force, he could only have been guilty of the lesser offence of manslaughter.
1. Penal Code (cap 63) section 9(3) was clear that unless expressly declared by a provision of law creating an offence, the motive by which a person is induced to do or omit to do an act or to form an intention is immaterial so far as regards criminal responsibility. The appellant’s motive for cutting his father was not a matter the trial judge could properly consider in coming to a decision as to his guilt or innocence.
2. The appellant’s defence at his trial was not provocation but that he had cut the deceased accidentally. Even assuming that he had raised the defence of provocation, the facts of the case and his conduct took his case outside that defence under section 207 of the Penal Code (cap 63).
3. It is not every act of provocation which will reduce the charge of murder to manslaughter as it is material to consider such circumstances as the degree of retaliation as represented by the number of blows and the lethal nature of the weapon used. The trial judge in this case properly ruled out provocation after considering these aspects and the respective ages of the appellant and the deceased.
4. On the evidence, the attack on the deceased was premeditated and vicious and neither provocation nor self defence was disclosed. The appellant’s conviction was based on overwhelming and acceptable evidence.
5. Under the Criminal Procedure Code (cap 75) sections 297 and 298, it is the court’s prerogative to select assessors and also to exclude an assessor from a trial for sufficient cause. However, section 298(1) presupposes that before a court excludes an assessor from a trial, it must inquire as to the reasons for his non-attendance, or where it is not possible to enforce his immediate attendance, then, and only then, can a court properly proceed with the trial in his absence.
6. The trial judge neither conducted an inquiry as to the reasons for the assessor’s non-attendance nor did she indicate in the court record that some steps had been taken, without success, to ensure his attendance before she decided to proceed in his absence. This was an error of law.
7. This error was curable on the facts and circumstances of this case but in an appropriate case, it might be fatal to an otherwise sound conviction. It is not a light matter to exclude an assessor from proceedings.
1. Mungai v Republic  KLR 85; [1982-88] 1 KAR 611
2. Tei s/o Kabya v R  EA 580
3. Doto s/o Mtaki v R  EA 860
1. Penal Code (cap 63) sections 9(3), 203, 204, 207, 208
2. Criminal Procedure Code (cap 75) section 297, 298(1), 382
DG Kisila for the Appellant
EO Onderi, State Counsel, for the Republic