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Court of AppealPartially AllowedCriminal Appeal No. 242 of 2005

Josephat Kunyali Kunyam, Alex Alulu Shikokoti & Albert Kaliavo Kaliondo v Republic

Court of Appeal of Kenya
31 March 2006
3,771 words in judgment
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The bottom line

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Kenya's Court of Appeal reduced three men's death sentence for robbery to seven years for grievous harm because the robbery elements were not proved.

What this practically means

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Executive summary

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The three appellants were convicted of robbery with violence contrary to section 296(2) of the Penal Code by the Senior Principal Magistrate at Kakamega and sentenced to death, after the complainant Aggrey Musindi's wrist was severed during a daylight attack near Savane Primary School on 5 October 2000. Their first appeal to the High Court (Sergon & Kariuki, JJ) was dismissed. On second appeal, only issues of law were open under section 361 of the Criminal Procedure Code. Counsel argued five grounds: identification, failure to re-evaluate evidence, contradictions, failure to consider defences, and absence of proof of the charge particulars. The Court held this was a case of recognition, not identification, since the assailants and complainant were village-mates and schoolmates, and the attack occurred in broad daylight. It found the superior court had discharged its Okeno duty of re-evaluation, and that the contradiction over the date of the first appellant's arrest was immaterial. However, the Court found insufficient consideration of the appellants' defences, which cast reasonable doubt on whether the incident amounted to robbery with violence or mere assault. The appeal was partially allowed: the conviction and sentence for robbery with violence were set aside and, in substitution, the appellants were convicted of causing grievous harm contrary to section 234 of the Penal Code, each sentenced to seven years imprisonment running from the date of the trial court's conviction.

Key legal issues

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01

Recognition versus identification of assailants

Holding

The attack occurred in broad daylight between persons from the same village who knew each other; this was recognition, which was reassuring, and the courts below did not err.

Reasoning

The Court distinguished identification of strangers from recognition based on prior personal knowledge, citing Siro Ole Giteya and Anjononi. Both the complainant and PW2 knew the appellants as schoolmates and neighbours, so the possibility of mistaken identity was minimal and the treatment of the issue by the lower courts was not faulted.

p. 5
02

Duty of first appellate court to re-evaluate evidence

Holding

The superior court expressly recognized and discharged its duty; the contradiction on the date of arrest was minor and did not invalidate the evidence.

Reasoning

Applying Okeno v R, the Court examined whether the superior court merely paid lip service to its duty. It found the superior court specifically dealt with the ground and that the date of arrest (09.10.00) was confirmed by PW8, PW4 and PW10, so PW1's differing date did not undermine the conviction.

p. 5
03

Whether the offence was robbery with violence or grievous harm

Holding

The defences and exculpatory evidence, on proper analysis, threw reasonable doubt on whether the incident amounted to robbery with violence rather than assault; conviction was substituted for grievous harm.

Reasoning

The Court found insufficient consideration of the appellants' defences, which raised doubt as to whether the incident constituted robbery with violence or mere assault. While rejecting the alibis and finding the appellants attacked the complainant, the Court concluded the robbery elements were not proved and substituted a conviction under section 234 of the Penal Code.

p. 6

Legal principles established

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  • On a second appeal under section 361 of the Criminal Procedure Code, only issues of law may be raised.
  • Recognition of an assailant is more reliable than identification of a stranger because it rests on personal knowledge.
  • A first appellate court must re-evaluate the whole evidence and reach its own conclusions, not merely endorse the trial court's findings.

Court orders

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  1. 1.Appeal allowed; conviction and sentence for robbery with violence under section 296(2) of the Penal Code set aside
  2. 2.Appellants convicted in substitution of the lesser offence of causing grievous harm contrary to section 234 of the Penal Code
  3. 3.Each appellant sentenced to seven years imprisonment, commencing from the date of conviction by the trial court
On appeal from
High Court of Kenya at Kakamega
H.C.CR.A. No. 236, 237 & 238 of 2002
Jurisdiction invoked
Section 361, Criminal Procedure Code (second appeal on matters of law only)

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, "Josephat Kunyali Kunyam, Alex Alulu Shikokoti & Albert Kaliavo Kaliondo v Republic", Case Analysis (2006). Criminal Appeal No. 242 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/290/eng@2006-03-31

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