Alex Afande Salamba & another v Republic [2018] KECA 54 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that even robbery-with-violence offenders must get a chance to plead for a lesser sentence, and convictions based on shaky eyewitness identification cannot stand.
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 1st appellant's death sentence, imposed without an opportunity to mitigate, should be set aside and the matter remitted for mitigation hearing
- 2.Whether the 2nd appellant's conviction, founded on visual identification and an unexplained arrest, was safe
Key legal issues
#Mandatory death sentence for robbery with violence and right to mitigate
The 1st appellant's appeal against sentence was allowed; the death sentence was set aside and the matter remitted to the High Court for mitigation.
Relying on the Supreme Court's decision in Muruatetu holding Section 204 of the Penal Code unconstitutional, the Court held that the same reasoning applies to Section 296(2) robbery with violence, where the death sentence is imposed without discretion. Since the 1st appellant was never given an opportunity to mitigate, the appropriate remedy was remittal to the first appellate court for a mitigation hearing.
Safety of conviction based on visual identification of the 2nd appellant
The 2nd appellant's conviction was unsafe and was quashed; the death sentence was set aside and he was ordered set at liberty.
The conviction rested solely on visual identification by PW3, PW4 and PW5 during a brief, terrifying armed robbery. Their testimony contained contradictions, no identification parade was conducted, and the arresting officers did not testify so the circumstances of the arrest were unexplained. Such identification could not be said to be free from error; the gaps weakened the prosecution case and the first appellate court failed to re-evaluate the evidence properly.
Failure by the prosecution to call the arresting officers
The failure to call the arresting police officers compromised the prosecution case against the 2nd appellant.
Citing Bukunya v Uganda, the Court held that the failure to call a crucial witness entitles the court to draw an adverse conclusion. The investigating officer's evidence did not explain the circumstances of the 2nd appellant's arrest, leaving a vital gap that the first appellate court should have addressed in re-evaluating the evidence.
Legal principles established
#- On a second appeal, the Court of Appeal is concerned only with matters of law, not fact.
- The reasoning of the Supreme Court in Muruatetu on the mandatory death sentence under Section 204 of the Penal Code applies by parity of reasoning to robbery with violence under Section 296(2), where the court must exercise discretion in sentencing.
- Evidence of visual identification must be examined with the greatest care to ensure it is free from the possibility of error before a conviction is founded on it.
- Where the prosecution fails to call a crucial witness, the court is entitled to make an adverse inference against the prosecution case.
Court orders
#- 1.The 1st appellant's death sentence is set aside and his appeal on sentence remitted to the High Court to conduct a mitigation hearing and pass an appropriate sentence
- 2.The 2nd appellant's conviction is quashed and the death sentence set aside
- 3.The 2nd appellant to be set at liberty unless otherwise lawfully held
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HC. CR. Appeal No. 495 & 497 of 2006
- Jurisdiction invoked
- Section 361(1)(a) of the Criminal Procedure Code (second appeal on matters of law only)
Relief refused
#1st appellant's appeal against conviction
Counsel conceded conviction at the hearing and only argued the sentence ground
Costs
No costs order was made 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.
This being a second appeal, we are only concerned with matters of law and not fact, in terms of Section 361(1) (a) of the Criminal Procedure Code.
by parity of reason it is equally applicable in respect of a charge of robbery with violence under Section 296(2) of the Penal Code, where upon entry of a conviction the trial court has to pass the death sentence, without any room for exercise of discretion.
We hereby set aside the death sentence that was pronounced by the trial court and direct that this appeal be remitted to the High Court to conduct a mitigation hearing and pass sentence.
Consequently, we allow the 2nd appellant’s appeal, quash the conviction and set aside the death sentence that was passed by the trial court. We order that the 2nd appellant be and is hereby set at liberty unless otherwise lawfully held.
Evidence of visual identification in criminal cases can bring about miscarriages of justice and it is of vital importance that such evidence is examined carefully to minimize this danger.
a failure to call a crucial witness by the prosecution entitles the Court to make an adverse conclusion against the prosecution case
Issues in the judgment
#Duplicate paragraph numbering - two paragraphs are both numbered 9 in the judgment
The citation for Wamunga appears as '[989] eKLR', apparently a typographical error
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alex Afande Salamba & another v Republic [2018] KECA 54 (KLR)", Case Analysis (2018). Criminal Appeal No. 109 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/54/eng@2018-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.