John Maina Kanyi & 2 others v Republic

Section 359(1) of the Criminal Procedure Code requires appeals from subordinate courts to be heard by two High Court judges unless the Chief Justice or an authorised judge directs in writing that one judge may sit. There was no evidence of such authority in this case. Consistent with the Court's earlier decision in Peter Ndungu Kihiko v Republic and Nzingo v Republic, the single-judge hearing was erroneous and the appeal therefore had to be allowed.

The Court endorsed its earlier statement in Abdul Debano Boye & Another v R that a convict cannot be hanged more than once, so where there are convictions on several capital counts, death should be imposed on one count only and the remaining sentences left in abeyance. The learned Judge of the High Court had instead substituted mandatory death sentences on both count I and count II, contrary to that principle.

The trial magistrate's sentencing remarks did not state whether the seven-year terms were concurrent or consecutive and the corporal punishment order was obscure. Against that confusion, the High Court exercised its powers under section 354 of the Criminal Procedure Code to alter the nature of the sentence and impose the mandatory death sentence on both counts. The Court found various errors by both the trial court and the first appellate court, and in the interests of justice quashed the convictions and set aside the death sentences rather than remitting for re-hearing.

Mrs Ndeda submitted that each appellant had raised an alibi and that the two courts below ought to have critically examined the evidence of identification vis-à-vis the alibi, emphasising that no descriptions of the appellants were given to the police. The High Court had found the identification under electric lights over about an hour favourable and correct. The Court of Appeal did not disturb the identification findings, disposing instead on the section 359(1) point and the sentencing errors.