Abdub Debano Boye & Another v Republic [2005] KECA 242 (KLR)

Applying Okeno v Republic, the court held a first appellate court must reconsider the evidence and draw its own conclusions. The High Court merely answered counsel's submissions in brief paragraphs and, on identification, proceeded on an assumption that the issue had been conceded, although ground 8 of the supplementary petition specifically put the 1st appellant's presence at the scene in issue and nothing showed abandonment. The court nonetheless cautioned that failure of the first appellate court must be weighed against the available evidence, not treated as automatic success.

Following Okeno and Selle, the court framed its task as deciding whether the convictions could be supported on the facts found below rather than re-hearing the case de novo. It nevertheless undertook its own assessment of the recorded evidence to satisfy itself that guilt was proved, holding that the failure of the first appellate court must be considered against the available evidence and the generalized conclusions in the first appeal, each appeal turning on its own merits.

The court distinguished the night-identification authorities relied on by the defence, which turned on artificial lighting. Tension and fear did not defeat visibility, and PW1, PW10 and PW11 saw their attackers. The allegation that PW15 had shown the suspects to witnesses a day earlier was false on the record, since not all witnesses identified all suspects; failure to change parade members did not affect the witnesses' ability to identify. Dock identification alone, the court noted, is of little value.

Counsel argued under section 33 that the report was inadmissible because produced by Chief Inspector Musyimi rather than the firearms examiner. The court held the amended section 77 displaced that objection, and that Rajab Said Abdallah, although decided after the amendment, made no mention of the amended section 77 and therefore did not govern. The ballistics report matched the spent cartridges from the scene to the rifle recovered on the 1st appellant's direction, corroborating his participation.

The 1st appellant, arrested on 26th January 1997, led police to a spot from which a SIMONON self-loading carbine was dug out; the ballistics report showed the two spent cartridges collected from the scene had been fired from that gun. Possession of the weapon the day after the robberies evidenced participation. The magistrate accepted that evidence, the High Court confirmed the conviction, and this Court held him correctly convicted on all charges despite its reservations about the quality of the first appellate judgment.

The court reasoned that a convict cannot be hanged more than once, so consecutive death sentences are senseless, and imposing a prison term alongside death serves no purpose; if the appeal on the capital count succeeded, the appellate court would resentence on the remaining counts. Giving effect to that principle, it retained death on count 1 for both appellants, set aside the death sentences on counts 2 to 6, and vacated the concurrent seven-year imprisonment terms imposed on the 1st appellant.