Idd Mohammed Sairim & another v Republic [2015] KECA 653 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the identification of the two appellants was proper and free from error
- 2.Whether the identification parades were fairly conducted and properly admitted in evidence
- 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.Whether the High Court failed to analyse and evaluate the evidence on record
Key legal issues
#Propriety of the identification of the appellants
The identification parades in respect of both appellants were fairly conducted and were correctly accepted in evidence by the two courts below
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.
Alleged conflict between sections 297(2) and 389 of the Penal Code
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
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.
Scope of the Court's jurisdiction on a second appeal
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
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed in its entirety
- 2.The conviction and sentence of death for attempted robbery with violence, as upheld by the High Court, shall stand
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
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
#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
Costs
No order as to costs is recorded in the judgment
Quotable passages
#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.
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.
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.
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.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Abdalla Kirao Mkare Wanje & 2 others v Republic [2016] KECA 399 (KLR)[2016] KECA 399 (KLR)15 Jul 2016followed
Cite this brief
#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.