Benson Masakhwe v Republic [2019] KECA 571 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a robbery conviction but replaced the automatic death sentence with 20 years' imprisonment, confirming judges may now use sentencing discretion.
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 identification of the appellant by the complainant was proper given the alleged prior sighting at Bungoma law courts
- 2.Whether the two courts below erred in evaluating and analysing the evidence on record
- 3.Whether the mandatory death sentence imposed was harsh and unconstitutional in light of Francis Karioko Muruatetu & another v Republic
Key legal issues
#Reliability of identification based on recollection of physical features
The complainant's identification of the appellant by his cut lip and broken tooth was reliable because he had ample opportunity to observe the appellant before dark and had described those features to the police before the arrest
The complainant conversed with and interrogated the appellant at around 6.00 pm before darkness set in, called a fellow boda boda rider to help verify him, and described the cut lip and broken tooth to police before the appellant was arrested. It was therefore no coincidence the appellant bore those features. The alleged prior sighting at Bungoma did not taint the identification.
Scope of a second appeal
A second appeal is confined to matters of law and the Court will not disturb concurrent findings of fact unless based on no evidence
Section 361 of the Criminal Procedure Code confines a second appeal to points of law. The Court restated the Karingo v R test: whether there was any evidence on which the trial court could find as it did. The appellant did not demonstrate any item of evidence ignored or not considered by the High Court, so the concurrent findings stood.
Constitutionality of the mandatory death sentence for robbery with violence
Following Muruatetu, the mandatory death sentence is no longer lawful as it deprives courts of sentencing discretion; the Court substituted 20 years' imprisonment
The impugned judgment predated Muruatetu, in which the Supreme Court held the mandatory death sentence unconstitutional because it removes judicial discretion in sentencing. The Court noted its own precedents setting aside death sentences for robbery with violence and substituting 20-year terms, found mitigation on record, and declined to remit for rehearing on sentence.
Weight of an unsworn statement by an accused
An unsworn statement by an accused is not evidence, though it should be considered in relation to the whole of the evidence
The appellant gave an unsworn statement denying the offence and claiming his injuries were inflicted by members of the public. Citing Amber May v Republic and R v Frost, R v Hale, the Court held such a statement is not evidence, and found the prosecution had proved its case beyond reasonable doubt.
Legal principles established
#- A second appeal is confined to matters of law only and this Court will not interfere with concurrent findings of fact unless based on no evidence
- Following Muruatetu, the mandatory death sentence for robbery with violence is no longer good law; courts have discretion in sentencing
Court orders
#- 1.Appeal against conviction dismissed
- 2.Death sentence set aside and substituted with a sentence of 20 years' imprisonment
- 3.Sentence to run with effect from 2nd October 2012 when the trial court passed sentence
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kakamega
- H. CR. APP. No. 229 of 2012
- Jurisdiction invoked
- Second appeal under Section 361 of the Criminal Procedure Code, confined to matters of law
Relief refused
#Appeal against conviction
Identification was proper and concurrent findings of fact were not shown to be unsupported by evidence
Costs
No costs order made 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.
We dismiss the appeal against conviction; we set aside the death sentence meted upon the appellant and substitute thereto a sentence of 20 years’ imprisonment with effect from 2nd October, 2012 when the trial court passed sentence.
By dint of Section 361 of the Criminal Procedure Code, a second appeal is confined to matters of law only.
Because of the fallibility of human observation, evidence of identification is approached by the Courts with some caution.
Witnesses should be asked by what features, marks or indications they identify the person whom they claim to recognize.
This position is no longer the law in light of the Supreme Court decision in Francis Karioko Muruatetu & another -v- Republic.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benson Masakhwe v Republic [2019] KECA 571 (KLR)", Case Analysis (2019). Criminal Appeal No. 16 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/571/eng@2019-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.