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Court of AppealDismissedCriminal Appeal No. 354 of 2011

Idd Mohammed Sairim & another v Republic [2015] KECA 653 (KLR)

Court of Appeal
12 June 2015
3,776 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that death is the lawful sentence for attempted robbery with violence and upheld convictions based on identification parades.

What this practically means

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Executive summary

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The appellants were convicted by the trial court on two counts of attempted robbery with violence contrary to section 297(2) of the Penal Code and sentenced to death, following an incident on 2nd April 1999 at Bora Bora Kamili Wholesale shop in Eastleigh, Nairobi, in which Florence Onsongo was shot dead and several witnesses wounded. Their first appeal to the High Court was dismissed after a rehearing by Ochieng and Achode, JJ, who upheld the convictions and sentences. On second appeal to the Court of Appeal (Waki, G.B.M. Kariuki and J. Mohammed, JJ.A), the appellants contended that the identification evidence was unreliable, that the identification parades were irregular, and that sections 297(2) and 389 of the Penal Code were in conflict as to the applicable sentence. The Court restated that on a second appeal it is confined to matters of law under section 361(1)(a) of the Criminal Procedure Code. It held that the guiding principle for identification parades is scrupulous fairness, a question of degree depending on the circumstances, and that the failure of witnesses to give prior descriptions did not invalidate the parades but went only to weight. It also endorsed the settled position that section 389 of the Penal Code applies only where no other punishment is provided, so the specific death penalty for attempted robbery with violence under section 297(2) prevails. The appeal was dismissed and the convictions and sentences affirmed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the identification of the two appellants was proper and free from error
  2. 2.Whether the identification parades were fairly conducted and properly admitted in evidence
  3. 3.Whether there is a conflict between sections 297(2) and 389 of the Penal Code regarding the sentence for attempted robbery with violence
  4. 4.Whether the High Court failed to analyse and evaluate the evidence on record

Key legal issues

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01

Propriety of the identification of the appellants

Holding

The identification parades in respect of both appellants were fairly conducted and were correctly accepted in evidence by the two courts below

Reasoning

The robbery occurred in broad daylight and eyewitnesses PW4, PW11 and PW13 identified the appellants. The parades complied with Police Force Standing Orders, including placement among at least eight persons of similar appearance. Complaints about lack of prior description, the 1st appellant's Maasai extraction and pierced ears, and identification by pointing rather than touching did not render the parades unfair in the circumstances; fairness is a question of degree depending on each case.

p. 6
02

Alleged conflict between sections 297(2) and 389 of the Penal Code

Holding

There is no conflict; section 389 is a residual provision which does not apply where a specific punishment is prescribed, and the lawful sentence for attempted robbery with violence is death

Reasoning

A plain reading of section 389 shows it operates only where no other punishment is provided. Section 297(2) prescribes the death penalty specifically for attempted robbery with violence, which places the offence in the category of attempted offences carrying a separate and distinct sentence, thereby ousting the general half-penalty rule. The Court endorsed its prior decision in Charles Mulandi Mbula v R and Dickens Odari Bige v R on this point.

p. 7
03

Scope of the Court's jurisdiction on a second appeal

Holding

The Court is enjoined to consider only issues of law; concurrent findings of fact by the trial court and first appellate court cannot be disturbed except where based on no evidence or where the courts below went plainly wrong

Reasoning

Relying on Dzombo Mataza v R and section 361(1)(a) of the Criminal Procedure Code, the Court restated that matters of fact are for the trial court and the first appellate court. The State's submission that interference is permissible only where concurrent findings rest on no evidence was consistent with this principle and framed the Court's restrained approach to the appellants' factual complaints about identification.

p. 4

Legal principles established

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  • In a second appeal, the Court of Appeal is confined to matters of law and cannot interfere with concurrent findings of fact unless the two courts below considered matters they should not have, failed to consider matters they should have, or were plainly wrong on the evidence
  • The guiding principle in evaluating an identification parade is whether it was conducted with scrupulous fairness, a question of fact dependent on the circumstances of each case
  • Failure of a witness to give a prior description of a suspect does not invalidate an identification parade; it goes only to the weight to be attached to the identification evidence
  • There is no conflict between sections 297(2) and 389 of the Penal Code; section 389 applies only where no other punishment is provided, and the specific penalty of death for attempted robbery with violence under section 297(2) ousts the general penalty in section 389

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.The conviction and sentence of death for attempted robbery with violence, as upheld by the High Court, shall stand

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
H.C.CR.A Nos. 1152 & 1154 of 2004
Jurisdiction invoked
Second appeal under section 361(1)(a) of the Criminal Procedure Code, conferring jurisdiction on matters of law only

Relief refused

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Quashing of the convictions and death sentences of both appellants

The identification parades were fairly conducted and correctly accepted by the two courts below, and there is no conflict between sections 297(2) and 389 of the Penal Code, so the sentence is lawful

p. 7

Costs

No order as to costs is recorded in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Based on the above it is clear that there is no conflict between the two provisions of the law and accordingly the sentence meted out by the trial court and upheld by the High Court is lawful and shall stand. On the whole, this appeal is devoid of merit and is hereby dismissed.
p. 7Disposition - appeal dismissed and sentence upheld
Having regard to the foregoing, we are satisfied that in the circumstances of this case, the identification parades with regard to both appellants were fairly conducted and were correctly accepted in evidence by the two courts below.
p. 6Identification parades held fair
A plain reading of s389 suggests that it only comes into operation where no other punishment is provided. S297 (2) clearly prescribes the sentence for attempted robbery with violence as death.
p. 7Statutory interpretation - Penal Code sections 297(2) and 389
It is precisely for that reason that courts have insisted that identification parades must be fair and be seen to be fair. Scrupulous compliance with the rules in the conduct of identification parades is necessary to eliminate any unfairness or risk of erroneous identification.
p. 4Standard for identification parades (quoting Samuel Kilonzo Musau v R)

Issues in the judgment

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minor

The quoted text of section 297(2) and section 389 appears merged into a single block in the judgment, making the two provisions difficult to distinguish at the quotation

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Idd Mohammed Sairim & another v Republic [2015] KECA 653 (KLR)", Case Analysis (2015). Criminal Appeal No. 354 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/653/eng@2015-06-12

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