Yohana Hamisi Kyando v Republic [2019] KECA 992 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a robbery conviction but sent the man back to the High Court for a fresh sentence, now that mandatory death sentences are unconstitutional.
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 circumstances were favourable for the positive identification of the appellant and whether the courts below warned themselves of the dangers of relying on a single identifying witness
- 2.Whether the charge was proved beyond reasonable doubt
- 3.Whether the ingredients of section 296(2) of the Penal Code were fully met
- 4.Whether the appellant's defence was adequately considered and given due weight
- 5.Whether the Court should revisit the mandatory death sentence in light of the Muruatetu decision
Key legal issues
#Scope of a second appeal under section 361(1) Criminal Procedure Code
The Court's mandate is limited to matters of law; findings of fact by the two courts below are not interfered with absent shown error.
The Court invoked Dzombo Mataza v R and Okeno v Republic, restating that in a second appeal matters of fact belong to the trial court and the first appellate court, and interference is warranted only where the courts below failed to consider relevant matters or were plainly wrong on the evidence, such that the decision is bad in law.
Identification by a single witness and the need for a warning
PW2 was a single identifying witness for the parade and PW1's evidence was dock identification; the courts below failed to warn themselves, but the conviction was independently supported by recent possession and recovery evidence.
Applying Turnbull, Abdalla Bin Wendo, Kariuki Njiru and Maitanyi, the Court found the warning absent but held the conviction did not rest solely on identification: the appellant was found in a recently stolen vehicle with his driving licence inside shortly after the robbery, corroborating the identification. Concurrent findings of fact were not upset.
Ingredients of robbery with violence under section 296(2) Penal Code
The evidence showed offenders armed with a pistol, in company, using violence and death threats, satisfying the elements of section 296(2) beyond reasonable doubt.
Adopting Johana Ndung'u v Republic, the Court noted any one of three circumstances suffices. PW1 and PW2 saw two persons by electric light without apprehension of fear; one drew a pistol; the victims were threatened with death, stripped and abandoned, so the offences were proved to the required standard.
Consideration of the appellant's defence and the doctrine of recent possession
Both courts below adequately considered the defence and rejected it; the recent possession doctrine was properly applied given the recovery of the appellant in the stolen vehicle with his documents.
The trial court expressly found the defence a mere denial tainted with untruths; the first appellate court affirmed that analysis. The Court found no basis to disturb these concurrent findings, and the appellant's explanation of his arrest did not displace the inference from recent possession of the stolen car and his driving licence found inside it.
Sentence in light of Muruatetu
The death sentence, imposed when the mandatory penalty was the only lawful sentence, is to be revisited; the matter is remitted to the High Court for rehearing on sentencing only.
Following the Supreme Court's decision in Francis Karioko Muruatetu & Another v Republic, which declared the mandatory death sentence under section 204 of the Penal Code unconstitutional and restored sentencing discretion in capital offences, and consistent with the practice in Juma Anthony Kakai and Julius Mutei Muthama, the Court remitted the matter for resentencing.
Legal principles established
#- On a second appeal the Court of Appeal is confined to matters of law and will not interfere with concurrent findings of fact unless the courts below considered or failed to consider matters they should have, or were plainly wrong on the evidence.
- Where conviction rests on a single identifying witness, the courts must warn themselves of the dangers of acting on such evidence, but failure to do so does not of itself vitiate the conviction where there is other cogent supporting evidence.
- Proof of any one of the three sets of circumstances in section 296(2) of the Penal Code suffices to establish robbery with violence.
- Following Muruatetu, a death sentence imposed when the mandatory death penalty was the only lawful sentence may be revisited, and the proper course is remittal to the High Court for sentencing.
Court orders
#- 1.Conviction affirmed as safe
- 2.Matter remitted to the High Court for rehearing on sentencing only consistent with the Muruatetu guidelines
- 3.Case to be mentioned before the High Court within 14 days of delivery of the judgment for appropriate directions on sentencing
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HC.CR.A. No. 400 of 2006
- Jurisdiction invoked
- Section 361(1) of the Criminal Procedure Code (second appeal limited to matters of law)
Relief refused
#Appeal against conviction (all five grounds)
Concurrent findings of fact on identification and recent possession not disturbed; elements of section 296(2) proved; defence adequately considered
Costs
No order as to costs made
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.
As this is a second appeal, our mandate under section 361 (1) of the Criminal Procedure Code is limited to considering matters of law only.
We accordingly affirm the appellant’s conviction as safe.
It is therefore our view that, the proper order to make upon dismissing the appeal against conviction is to remit the matter back to the High Court for rehearing on sentencing only consistent with the guidelines pronounced by the Supreme Court in the Muruatetu case. To that end, the case shall be mentioned before the High Court within 14 days of the delivery of the Judgment herein for appropriate directions on sentencing. It is so ordered.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Osumba v Republic (Criminal Appeal 110 of 2016) [2021] KECA 292 (KLR)[2021] KECA 292 (KLR)3 Dec 2021applied
- Paul Mulinge & another v Republic [2019] KECA 793 (KLR)[2019] KECA 793 (KLR)22 Mar 2019followed
Cite this brief
#Cite this brief
Caselaw, "Yohana Hamisi Kyando v Republic [2019] KECA 992 (KLR)", Case Analysis (2019). Criminal Appeal No. 6 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/992/eng@2019-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.