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Court of AppealPartially AllowedCriminal Appeal No. 92 of 2014· [2018] KECA 76 (KLR)

Stanley Khakubi Songa v Republic [2018] KECA 76 (KLR)

Court of Appeal of Kenya
7 December 2018
2,470 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed a robbery with violence conviction but replaced the mandatory death sentence with 20 years' imprisonment.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Musinga, M'inoti and Murgor, JJ.A) dismissed a second appeal against conviction for robbery with violence but allowed the appeal against sentence. The appellant had been convicted on 20th November 2009 by the Chief Magistrate's Court at Kakamega and sentenced to death under section 296(2) of the Penal Code for robbing the complainant of slippers, a matchbox, cigarettes and Kshs 10 while armed with, among others, long knives, in the company of two others, and inflicting injuries classified as harm. The High Court dismissed his first appeal. The Court of Appeal, whose jurisdiction was limited to questions of law by section 361 of the Criminal Procedure Code, held that all ingredients of robbery with violence were proved, that conviction on the evidence of a single witness was permissible under section 143 of the Evidence Act, and that no mistaken identification arose since the appellant was arrested at the scene. On sentence, the Court followed the Supreme Court's decision in Muruatetu and its own decisions in Kittiny and Kihunyu, holding that the mandatory death sentence for robbery with violence is a discretionary maximum punishment and unconstitutional to the extent of its mandatory nature. Taking into account the appellant's mitigation, his status as a first offender and sole breadwinner, and nearly ten years in custody, the Court found the death sentence wholly disproportionate, quashed it and substituted a term of imprisonment of 20 years commencing 24th December 2008.

Key legal issues

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01

Proof of the ingredients of robbery with violence

Holding

The offence was proved: the appellant was in the company of two others, armed with dangerous weapons, and violence was used on the complainant, confirmed by medical evidence.

Reasoning

Under section 296(2) of the Penal Code the offence may be proved by showing the offender was armed with a dangerous weapon, was in company, or used violence before or after the robbery. The evidence accepted by the two courts below established all these elements, and credibility findings being questions of fact were not disturbable on second appeal.

p. 2
02

Sufficiency of a single witness's evidence

Holding

A conviction may rest on the evidence of one credible witness; section 143 of the Evidence Act requires no particular number of witnesses.

Reasoning

Section 143 of the Evidence Act provides that no particular number of witnesses is required to prove any fact. The fact of multiple armed assailants could be proved by PW1 alone if believed, and the trial court believed him. Credibility was a settled question of fact.

p. 2
03

Identification of the appellant

Holding

No mistaken identification arose; the appellant was arrested at the scene while being held by the complainant.

Reasoning

PW1 recognised the appellant and his two accomplices as neighbours, and the appellant was arrested at the scene of the robbery by members of the public while PW1 held onto him, with PW2 and PW3 confirming the arrest. He had no opportunity to escape and create doubt as to identity.

p. 2
04

Constitutionality of the mandatory death sentence for robbery with violence

Holding

The mandatory death sentence under section 296(2) of the Penal Code is unconstitutional to the extent that it deprives courts of sentencing discretion; the Muruatetu reasoning applies mutatis mutandis.

Reasoning

Section 296(2) proceeds on the same footing as section 204, prescribing a mandatory death sentence. Following Kittiny and Kihunyu, the Supreme Court's reasoning in Muruatetu applies, rendering the death sentence a discretionary maximum punishment and entitling the Court to interfere where the sentence is disproportionate.

p. 3

Legal principles established

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  • On a second appeal under section 361 of the Criminal Procedure Code, the Court of Appeal is confined to matters of law and cannot interfere with findings of fact by the two lower courts unless they considered matters they ought not to have, or failed to consider matters they should have, or were plainly wrong.
  • The reasoning in Muruatetu on the unconstitutionality of the mandatory death sentence under section 204 of the Penal Code applies equally to the mandatory death sentence for robbery with violence under section 296(2); that sentence is a discretionary maximum punishment.

Court orders

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  1. 1.Dismissal of the appeal against conviction
  2. 2.Allowance of the appeal against sentence
  3. 3.Quashing of the sentence of death
  4. 4.Substitution of a term of imprisonment of 20 years with effect from 24th December 2008

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Penal Codesection 297(2)
  • Penal Codesection 204
  • Criminal Procedure Codesection 361
  • Evidence Actsection 143
  • Constitution of KenyaArticle 25

Cases cited (9)

  • George Omondi v. Republic
    [2005] eKLR
  • Karani v. Republic
    [2010] 1 KLR 73
  • Johana Ndungu v. Republic
    Cr. App. No. 116 of 1995
  • Oluoch v. Republic
    [1985] KLR 549
  • Ganzi & 2 Others v. Republic
    [2005] 1 KLR 52
  • Francis Karioko Muruatetu & Another v. Republic
    SC Pet. No. 16 of 2015
  • Willam Okungu Kittiny v. Republic
    Cr. App. No. 56 of 2013
  • George Munyuhi Kihunyu v Republic
    Cr. App. No. 156 of 2016
  • Wycliffe Wangusi Mafura v Republic
    [2018] eKLR
On appeal from
High Court of Kenya at Kisumu
H.C. CR.A. No. 194 of 2009
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal limited to questions of law)

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, "Stanley Khakubi Songa v Republic [2018] KECA 76 (KLR)", Case Analysis (2018). Criminal Appeal No. 92 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/76/eng@2018-12-07

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