Desdelio Fausto Muriuki v Republic [2020] KECA 5 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a robbery conviction but replaced the mandatory death sentence with 25 years' imprisonment under the Muruatetu decision.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court could entertain the contention that there was no retrial as ordered
The issue was not entertained because it was raised for the first time on second appeal without explanation for the earlier omission.
The issue had not been raised in the trial court or the first appellate court despite the appellant being represented by counsel, and no explanation for the failure was proffered. Relying on Alfayo Gombe Okello and John Kariuki Gikonyo, the court held it must refrain from determining new issues on which the two courts below expressed no opinion, since their input could not be placed on record.
Identification of the appellant
The identification was sound; the appellant was identified by several witnesses and, even on a single-witness analysis, the circumstances were conducive to correct identification.
PW1 sold the appellant the hammer, PW2 saw him enter the Taxi, PW3 was robbed by him and PW4 arrested him with the vehicle. Even assuming a single identifying witness, PW3 was with the appellant for a long time in broad daylight, the trial court warned itself on the dangers of single-witness identification, and the first appellate court addressed the issue at length. The court declined to disturb these concurrent findings.
Recovery, inventory and doctrine of recent possession
The vehicle recovered was KAD 262U; failure to prepare an inventory was not fatal; the doctrine of recent possession was properly invoked.
The evidence of PW2, PW3, PW4, PW5 and PW7 established that the vehicle recovered from the appellant was the stolen Taxi KAD 262U. Applying the five elements of recent possession, the Taxi stolen at about 1 pm was found with the appellant four hours later, was positively identified as PW7's, and a motor vehicle is not property easily passed from person to person. The appellant gave no explanation for his possession.
Alibi defence
The alibi defence was duly considered and rejected by the trial court; the complaint was not borne out by the record.
The trial court expressly disbelieved the appellant's claim of a grudge arrest, observing that the recovery and robbery were consistent with the chain of events. The court added that it would have been logical for the appellant, if arrested in Naivasha as claimed, to be booked at Naivasha police station rather than Tigoni.
Sentence - mandatory death penalty
Guided by Muruatetu, the court interfered with the death sentence and substituted 25 years' imprisonment.
Following the Supreme Court's holding that the mandatory death sentence deprives courts of legitimate discretion and fails to conform to fair trial tenets under Article 25, the court noted the vehicle was recovered the same day, the violence was not aggravated, and the appellant was a first offender. It set aside the death sentence and substituted 25 years' imprisonment effective from the date of the trial court's sentence, while dismissing the appeal on conviction.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to matters of law and cannot interfere with concurrent findings of fact unless the courts below considered matters they ought not to have, failed to consider matters they should have, or were plainly wrong.
- An issue raised for the first time on a second appeal, which was never raised in the trial court or the first appellate court, will not be entertained absent explanation.
- Before relying on the doctrine of recent possession, possession must be positively proved: the property was found with the suspect, was positively the complainant's, was stolen from the complainant, and was recently stolen, with proof of recency depending on the ease with which the property can move from person to person.
- Failure to compile an inventory of recovered property is a procedural step which, absent prejudice, does not vitiate a trial or occasion failure of justice.
Court orders
#- 1.Set aside the sentence of death imposed on the appellant
- 2.Substitute the death sentence with a sentence of 25 years' imprisonment effective from the date of sentence by the trial court
- 3.Dismiss the appeal on conviction
- On appeal from
- High Court of Kenya at Embu
- HC. CR.A. No. 116 of 2006
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code - second appeal limited to matters of law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Desdelio Fausto Muriuki v Republic [2020] KECA 5 (KLR)", Case Analysis (2020). Criminal Appeal No. 309 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/5/eng@2020-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.