Josphat Ashiundu & 3 others v Republic [2019] KECA 559 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed four robbery convictions and death sentences, ruling that identification parades were validly conducted and post-Muruatetu death sentences remain available for aggravated robberies.
What this practically means
#Executive summary
#Key legal issues
#Admissibility of the 1st appellant's indication of accomplices
The evidence that the 1st appellant mentioned his accomplices was discounted by the trial magistrate and not considered by the High Court; the convictions rested on visual identification, not the alleged confession
The trial magistrate expressly held the evidence inadmissible against the co-accused. Both lower courts based conviction on visual identification evidence, so the complaint of improperly admitted confession evidence could not found the appeal.
Sufficiency of identification parade compliance
The signed prescribed-form certificate by the parade officer, unchallenged by the appellants who signed the forms indicating satisfaction, sufficed to prove that parade members were of similar age, height and general appearance as the suspects
Although IP Kemboi did not give detailed evidence on how parade members were selected, he signed the prescribed Police Form 156 certifying strict compliance. The appellants each signed the parade forms without objection and never asserted that any member did not qualify for the parade.
Re-evaluation of evidence by first appellate court
The High Court re-evaluated the evidence and made proper findings that identification conditions were favourable; the appellants' grounds on re-evaluation and defences failed
The High Court considered the prosecution evidence and the respective defences, made express findings that the complainants had ample time and sufficient light to identify the appellants, and disbelieved the defences. The concurrent findings of fact were supported by credible and cogent evidence and were not directly challenged on the circumstances of identification.
Sentencing after Muruatetu
The Muruatetu unconstitutionality of the mandatory death sentence extends to robbery with violence and attempted robbery, making death a discretionary maximum, but death remained the appropriate sentence on these aggravated facts
The court applied Muruatetu to sections 296(2) and 297(2) of the Penal Code, following Kittiny and Gichimu. However, the robberies were committed by several armed people using lethal weapons, a watchman was killed cruelly, and complainants were cut with pangas, justifying the death sentence.
Legal principles established
#- Following Muruatetu, the death sentence for robbery with violence under section 296(2) and attempted robbery under section 297(2) of the Penal Code is a discretionary maximum punishment, not a mandatory one
- An unquestioned certificate by the officer conducting an identification parade that the prescribed instructions were complied with is sufficient evidence that parade members were of similar age, height and general appearance as the suspect, absent any challenge
- An appellate court will not disturb concurrent findings of fact by the two courts below where they are supported by credible and cogent evidence
Court orders
#- 1.The appeal of each appellant is dismissed in its entirety
- On appeal from
- High Court of Kenya at Kakamega
- H.C.C.A. No. 115 of 2006
- Jurisdiction invoked
- First appellate jurisdiction under the Criminal Procedure Code against judgment, conviction and sentence of the High Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Josphat Ashiundu & 3 others v Republic [2019] KECA 559 (KLR)", Case Analysis (2019). Criminal Appeal No. 170 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/559/eng@2019-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.