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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCriminal Appeal No. 71 of 2013· [2015] KECA 23 (KLR)

Bonface Ikuha Adiagala & 2 Others v Republic

Court of Appeal
5 February 2015
2,648 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal freed a death-row inmate because police botched his identification parade, while confirming the death sentence itself remains legal.

What this practically means

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Executive summary

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This is a second appeal to the Court of Appeal at Kisumu (Maraga, Azangalala and Kantai, JJ.A) by Bonface Ikuha Adiagala, who had been convicted of robbery with violence and sentenced to death by the Principal Magistrate's Court at Kakamega, with his first appeal dismissed by the High Court at Kakamega on 7th February 2013. Under Section 361(1)(a) of the Criminal Procedure Code the appeal was confined to issues of law. Three issues were addressed: the constitutionality of the death sentence; an alleged defect in the charge sheet on geographical jurisdiction; and whether the facts proved robbery with violence, hinging on identification. The court dismissed the death sentence ground, holding on the authority of Joseph Mwaura that the death sentence remains lawful in Kenya, and clarifying that Godfrey Ngotho Mutiso only invalidated the mandatory death sentence for murder, not the death penalty itself. On identification, the court found that Rachel, the identifying witness, could not see the robbers properly after losing her spectacles; that the identification parade breached Rule 6(iv)(d) of the Force Standing Orders because steps were not taken to conceal the appellant's disfigurement; and that the witness gave no prior description of the appellant, as required by Ajode v Republic. The High Court had misdirected itself in excusing these defects. The appeal succeeded: the conviction was quashed, the sentence set aside, and the appellant ordered released forthwith unless otherwise lawfully held. No costs order was made.

Key legal issues

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01

Constitutionality of the death sentence

Holding

The ground challenging the death sentence was dismissed; the death sentence remains lawful

Reasoning

Relying on Joseph Mwaura, the court held the Constitution, former and current, envisages that the right to life is not absolute and may be limited by written law such as the Penal Code. Mutiso only struck down the mandatory death sentence for murder, not the death penalty itself. Kenya is not a party to the Second Optional Protocol to the ICCPR. Severity of sentence is a matter of fact not open on second appeal.

p. 4
02

Identification of the appellant and propriety of the identification parade

Holding

Identification did not meet the required standard; the parade was improperly conducted and the High Court misdirected itself

Reasoning

Rachel's evidence showed she could not properly see the robbers, having lost her spectacles. The parade violated Rule 6(iv)(d) of the Force Standing Orders because the appellant's disfigurement was not concealed, and Rachel gave no prior description of the appellant, contrary to Ajode v Republic. The High Court erred in holding it was too difficult to find other scarred participants.

p. 5

Legal principles established

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  • A second appeal under Section 361(1)(a) of the Criminal Procedure Code is confined to matters of law only
  • The death sentence remains a lawful sentence in Kenya; only the mandatory nature of the sentence for murder was declared unconstitutional in Mutiso
  • Where an accused person suffers from a disfigurement, steps must be taken to ensure it is not especially apparent in an identification parade, and a witness must give a description of the accused before the parade is conducted

Court orders

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  1. 1.Quash the conviction of the appellant
  2. 2.Set aside the sentence
  3. 3.Order that the appellant be released from prison forthwith unless otherwise lawfully held
On appeal from
High Court of Kenya at Kakamega
Kakamega No. 31, 32 & 33 of 2010
Jurisdiction invoked
Section 361(1)(a) of the Criminal Procedure Code - second appeal confined to matters of law

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, "Bonface Ikuha Adiagala & 2 Others v Republic", Case Analysis (2015). Criminal Appeal No. 71 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/23/eng@2015-02-05

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