Elly Opande Nyasaka v Republic
The bottom line
#Kenya's Court of Appeal upheld a robbery conviction and life sentence, confirming that unsupported constitutional arguments and challenges to established facts will fail on second appeal.
What this practically means
#Executive summary
#Key legal issues
#Constitutionality and certainty of charges under section 296(2) of the Penal Code
The ground failed; no authority was cited and no demonstration was made that the charge was ambiguous, illegal or unconstitutional
Counsel asserted the section had been declared invalid but filed a list of authorities without citing any in support, and never showed how the charge was ambiguous, illegal or unconstitutional. References to Articles 10 and 159 and 'new jurisprudence' did not demonstrate that the courts below flouted those Articles.
Identification and sufficiency of circumstantial evidence
Concurrent findings that the appellant was chased, apprehended and found with the stolen money were properly made and would not be disturbed
The court deferred to the concurrent findings of the two courts below. PW2 pursued the appellant and never lost sight of him; PW5 corroborated that testimony; and the stolen sum of Ksh. 247,950 was recovered from the backpack in the appellant's possession. The failure of PW1, PW3 and PW4 to identify him did not weaken this direct chase-and-recovery evidence.
Failure to call certain witnesses
Impliedly rejected; the evidence on record sufficed and section 143 of the Evidence Act requires no particular number of witnesses
Counsel argued that Flavia, Robert, Cpl. Ndwiga and members of the public were critical witnesses whose absence left only suspicion. The prosecution relied on section 143 of the Evidence Act, which requires no particular number of witnesses to prove any fact, and the court accepted the chase-and-recovery evidence on record as sufficient.
Legality of the death sentence
Following Muruatetu, the death sentence is no longer mandatory; the court would have reduced it to life imprisonment, which the appellant is already serving
The trial court imposed the death sentence as mandatory under section 296(2), and the High Court did not reconsider it. The Supreme Court in Muruatetu later declared the mandatory death sentence unconstitutional. The court would have reduced the sentence to life imprisonment but declined to disturb the commuted life sentence already being served.
Legal principles established
#- A second appellate court will not depart from concurrent findings of fact by the trial court and first appellate court unless there are compelling reasons, such as that the findings were perverse
- A ground of appeal not grounded in law or authority will be rejected as ornamental
- On a second appeal, sentence is not a proper subject for consideration unless its legality is in issue
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The life imprisonment sentence (as commuted from the death sentence) is not disturbed
- On appeal from
- High Court of Kenya at Nairobi
- H.C.CR.A. No. 693 of 2010
- Jurisdiction invoked
- Second and final appeal to the Court of Appeal under section 361 of the Criminal Procedure Code (appeal on matters of law)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elly Opande Nyasaka v Republic", Case Analysis (2019). Criminal Appeal No. 94 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/352/eng@2019-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.