CHARO KARISA THOYA v REPUBLIC [2011] KECA 244 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a robbery appeal, confirming that the new right to State-funded counsel does not apply to trials conducted under the old Constitution.
What this practically means
#Executive summary
#Key legal issues
#Sufficiency of identification and possession evidence on a first appeal
The conviction was safe: the appellant was caught in the act and found in possession of the stolen items, and the concurrent findings of fact of the two lower courts would not be disturbed
The trial magistrate saw and heard the witnesses and her analysis was adopted by the first appellate court. Citing Okeno v R and M'Iriungu v R, the Court held it must defer to concurrent findings of fact unless no reasonable tribunal could have reached them. The appellant was arrested shortly after the robbery in possession of the stolen chains, bracelet and watch, so the conviction was inevitable and the appeal on evidence had no merit.
Right to State-funded legal representation
Applying David Njoroge Macharia v Republic, persons accused of capital offences are entitled to State-funded counsel under Article 50(2)(h), but the right is not retrospective and did not apply to this appellant, whose trial occurred under the repealed Constitution
Section 14 of the repealed Constitution expressly excluded legal representation at public expense. Article 50(2)(h) of the 2010 Constitution guarantees State-assigned counsel where substantial injustice would otherwise result, and the court held capital offences fall within that category, drawing on the ICCPR via Article 2(6). But the appellant was tried under the old Constitution, so the right did not assist him.
Constitutionality of the death sentence
The issue was academic as the sentence had been commuted to life imprisonment; the court nonetheless reiterated Mutiso's declaration that the mandatory death sentence under section 204 of the Penal Code is unconstitutional
The court, quoting its own decision in Macharia, noted the President had commuted all death row sentences to life imprisonment, so the appellant no longer faced the death penalty. It restated the Mutiso holding that section 204's mandatory death penalty is antithetical to constitutional protections against inhuman or degrading punishment, though the Constitution recognises the death penalty as lawful.
Legal principles established
#- An appellate court must defer to the factual findings of the trial court and the first appellate court where evidence was properly analysed, unless no reasonable tribunal could have reached those conclusions
- Under the 2010 Constitution, persons accused of capital offences have a right to legal representation at State expense
- The new Constitution's right to State-funded legal representation does not apply retroactively to trials conducted under the repealed Constitution, and each case must be assessed individually for prejudice
Court orders
#- 1.The appeal be and is hereby dismissed
- On appeal from
- High Court of Kenya at Mombasa
- H.C.CR.A. No. 98 of 1999
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court in a criminal matter under the Penal Code and the applicable appellate criminal procedure provisions
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Peter Njoroge Kinuthia v Republic [2017] KECA 52 (KLR)[2017] KECA 52 (KLR)8 Dec 2017followed
- Ondeng' v Republic (Criminal Appeal 5 of 2013) [2014] KECA 523 (KLR)[2014] KECA 523 (KLR)20 Jun 2014followed
Cite this brief
#Cite this brief
Caselaw, "CHARO KARISA THOYA v REPUBLIC [2011] KECA 244 (KLR)", Case Analysis (2011). Criminal Appeal No. 274 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/244/eng@2011-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.