George Onyango Kisera & another v Republic [2019] KECA 570 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that the death sentence for robbery with violence is no longer mandatory, replacing it with 15 years' imprisonment.
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 doctrine of recent possession was properly invoked to sustain the conviction of the 2nd appellant
- 2.Whether this Court should revisit the sentence of death imposed on the appellants in view of the Supreme Court decision in the Muruatetu case
Key legal issues
#Application of the doctrine of recent possession to the 2nd appellant's conviction
The doctrine was properly invoked; unexplained possession of property stolen shortly before, positively identified by the complainant, justified an inference of guilt.
The trial court and the first appellate court made concurrent findings that the black leather belt belonging to the complainant was recovered on the 2nd appellant's person immediately after the robbery, and that his explanation was untrue. He offered no plausible explanation of how he came by the stolen items. As a second appellate court, the Court of Appeal was constrained by section 361(1)(a) of the Criminal Procedure Code not to disturb concurrent findings of fact and found no basis to interfere.
Constitutionality of the mandatory death sentence for robbery with violence under section 296(2) of the Penal Code after Muruatetu
Following Muruatetu and Kittiny, the death sentence under section 296(2) is a discretionary maximum punishment; this Court could revisit and substitute the sentence.
The Supreme Court in Muruatetu declared section 204 of the Penal Code invalid insofar as it prescribed a mandatory death sentence for murder, and clarified that the death penalty remained a discretionary maximum penalty. This Court, in Kittiny, extended that holding mutatis mutandis to sections 296(2) and 297(2). The decision of the Supreme Court binds all other courts immediately, giving this Court jurisdiction to direct a sentence re-hearing or pass any appropriate lawful sentence. On the facts, the appellants had served 9 years and the complainant sustained no serious injuries, making imprisonment appropriate.
Whether a sentence re-hearing was necessary
No re-hearing was necessary because the appellants' mitigation was already on record and the Court could itself pass an appropriate sentence.
The trial magistrate had considered herself bound to impose the mandatory death sentence despite mitigation. Since the appellants' mitigating circumstances were already on the record, and given their nine years in custody and the absence of serious injuries to the complainant, the Court found it unnecessary to remit the matter for a sentence re-hearing and instead substituted a term of fifteen years' imprisonment effective from the date of conviction.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to matters of law and may not interfere with concurrent findings of fact of the trial court and the first appellate court unless no reasonable tribunal could have reached that conclusion.
- The holding in Muruatetu applies mutatis mutandis to section 296(2) of the Penal Code; the death sentence for robbery with violence is a discretionary maximum punishment, not a mandatory one.
- Before relying on the doctrine of recent possession, the prosecution must positively prove that the property was found with the suspect, that it is positively the complainant's property, that it was stolen from the complainant, and that it was recently stolen.
- The Supreme Court's decision in Muruatetu has immediate and binding effect on all other courts, and courts below are not prohibited from ordering sentence re-hearing in pending matters.
Court orders
#- 1.The appeal against conviction by the 2nd appellant is dismissed
- 2.The appeal against sentence by both appellants is allowed
- 3.The sentence of death is set aside
- 4.The appellants are sentenced to 15 years imprisonment with effect from 22nd October, 2010 when they were convicted and sentenced
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisumu
- HCCRA No. 157 of 2010
- Jurisdiction invoked
- Second appeal to the Court of Appeal under section 361(1)(a) of the Criminal Procedure Code, confining the appeal to matters of law
Relief refused
#The 2nd appellant's appeal against conviction
The two courts below were justified in invoking the doctrine of recent possession; the stolen items were recovered immediately after the robbery and no plausible explanation was given
Costs
No costs order is recorded 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.
In the premises, the appeal against conviction fails in respect of the 2 nd appellant.
Thus, the sentence of death under section 296 (2) and 297(2) of the penal code is a discretionary maximum punishment.
However, the appeal against sentence by both appellants is allowed. The sentence of death is set aside and in substitution therefor the appellants are sentenced to 15 years imprisonment with effect from 22nd October, 2010 when they were convicted and sentenced.
Upon proof of the unexplained possession of recently stolen property, the trier of fact may –but not must-- draw an inference of guilt of theft or of offences incidental thereto.
Issues in the judgment
#The coram heading states the appeal is against a judgment dated 7th July, 2015, yet the appeal was filed as Criminal Appeal No. 192 of 2014, suggesting the appeal number predates the decision appealed against.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Onyango Kisera & another v Republic [2019] KECA 570 (KLR)", Case Analysis (2019). Criminal Appeal No. 192 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/570/eng@2019-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.