Benard Shikuku Wanjala v Republic [2019] KECA 4 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a robbery conviction but scrapped the mandatory death sentence, replacing it with 25 years' imprisonment.
What this practically means
#Executive summary
#Key legal issues
#Ingredients of robbery with violence under section 296(2) of the Penal Code
The ingredients were present on the uncontroverted evidence of PW1; proof of any one of the elements is enough for a conviction
Section 296(2) prescribes death where the offender is armed with a dangerous weapon, is in company with others, or wounds, beats, strikes or uses personal violence at or around the time of the robbery. The court applied Oluoch v Republic and M'arimi, holding that proof of any one element suffices. PW1 testified the appellant cut him with a sword and hit his chest while armed with pangas and rungus, satisfying the violence ingredient.
Application of the doctrine of recent possession
Reliance on the doctrine by the two courts below could not be faulted; the appellant gave no valid explanation for possession of the stolen items
PW3 found a bicycle with luggage at his home and the appellant came to claim the items about two hours later, leading to his arrest after reporting to the Assistant Chief. The items were the very ones robbed from PW1. Applying Gideon Meitekin Koyiet, the court held the onus fell on the appellant to explain possession, and unexplained possession justified an inference of guilt.
Scope of a second appeal under section 361 of the Criminal Procedure Code
The Court considers only issues of law and will not disturb concurrent findings of fact unless based on no evidence or perverse
Section 361 confines the second appellate court to questions of law. The court adopted M'Riungu v Republic, holding that concurrent findings of fact by the trial court and first appellate court are binding unless made on no evidence at all or such that no reasonable court would have reached them on that evidence. The appellant's challenges to identification were matters of fact already resolved by the courts below.
Mandatory death sentence under section 296(2) of the Penal Code
Following Muruatetu by parity of reasoning, the appeal against sentence was allowed and the death sentence set aside and substituted with 25 years' imprisonment
The Supreme Court in Muruatetu declared the mandatory death sentence under section 204 of the Penal Code unconstitutional for depriving courts of judicial discretion. Although that decision concerned murder, the Court held that by parity of reasoning it applies to robbery with violence under section 296(2), which also prescribes a mandatory death sentence. The trial court's hands had been tied as the law then stood.
Legal principles established
#- A second appellate court under section 361 of the Criminal Procedure Code considers only issues of law and will not interfere with concurrent findings of fact by two courts below unless such findings were made on no evidence at all or no court would reasonably have reached them on that evidence
- Proof of any one of the three ingredients of robbery with violence under section 296(2) of the Penal Code suffices to sustain a conviction
- The doctrine of recent possession applies where the prosecution proves that the property was found with the suspect, was positively identified by the complainant, and was recently stolen from the complainant; unexplained possession justifies an inference of guilt
- By parity of reasoning with Muruatetu, the mandatory death sentence under section 296(2) of the Penal Code for robbery with violence is unconstitutional, and courts may exercise discretion in sentencing
Court orders
#- 1.Dismissal of the appeal against conviction
- 2.Setting aside of the death sentence
- 3.Substitution of the death sentence with imprisonment for a term of 25 years from the date of conviction by the trial court
- On appeal from
- High Court of Kenya at Busia
- H.C.C.R.A. No. 31 of 2004
- Jurisdiction invoked
- Second appeal under Section 361 of the Criminal Procedure Code, which confines the Court to issues of law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benard Shikuku Wanjala v Republic [2019] KECA 4 (KLR)", Case Analysis (2019). Criminal Appeal No. 137 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/4/eng@2019-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.