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Court of AppealPartially AllowedCriminal Appeal No. 5 of 2015· [2020] KECA 70 (KLR)

Francis Omwenga Opiyo v Republic [2020] KECA 70 (KLR)

Court of Appeal of Kenya
18 December 2020
2,501 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld a robbery with violence conviction but cut the death sentence to time already served, following Muruatetu.

What this practically means

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Executive summary

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This was a second appeal by Francis Omwenga Opiyo, who had been convicted of robbery with violence contrary to Section 296(2) of the Penal Code and sentenced to death on 3rd March 2006 by the Principal Magistrate's Court at Busia. His first appeal to the High Court at Busia (D.A. Onyancha and F.N. Muchemi, JJ) was dismissed on 8th November 2011. Before the Court of Appeal at Kisumu (W. Karanja, Asike-Makhandia and F. Sichale, JJ.A), the appellant argued that the first appellate court failed to re-evaluate the evidence, that the voice identification relied on at trial was unreliable, and that the ingredients of the offence were not proved. The court restated that a second appeal is confined to matters of law and that it will not interfere with concurrent findings of fact unless based on no evidence, a misapprehension of the evidence, or wrong principles, citing Kaingo v Republic. It noted that the first appellate court had itself discounted the voice identification, and upheld the conviction instead on positive recognition of the appellant by P.W.1, a colleague in the bicycle taxi business, aided by moonlight. Following Oluoch v Republic, the court found all ingredients of robbery with violence satisfied: the appellant acted with another, armed with a panga, threatening and using violence. The appeal against conviction was dismissed, but on sentence the court applied Francis Karioko Muruatetu v Republic, in which the Supreme Court declared the mandatory death sentence unconstitutional. Noting the appellant's prolonged custody since April 2005, that P.W.1 was not harmed, and that the stolen bicycle was recovered, the court reduced the sentence to the term already served.

Key legal issues

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01

Scope of a second appeal

Holding

A second appeal is confined to points of law; the court will not disturb concurrent findings of fact absent misapprehension of evidence or wrong principles.

Reasoning

Relying on Kaingo v Republic, the court restated that it will not interfere with concurrent findings of fact by the two courts below unless those findings are based on no evidence, rest on a misapprehension of the evidence, or the courts demonstrably acted on wrong principles. The test is whether there was any evidence on which the trial court could find as it did.

p. 3
02

Identification and recognition of the appellant

Holding

P.W.1 positively identified the appellant, a colleague in the bicycle taxi business, aided by moonlight despite the 5.00 a.m. darkness.

Reasoning

Although the robbery occurred at about 5.00 a.m. when it was dark, P.W.1 testified that there was moonlight, and he was familiar with the appellant as a fellow bicycle rider. He reported immediately after the incident that he knew one of the attackers. The court held the identification/recognition to be positive and reliable, independent of the discredited voice identification.

p. 3
03

Ingredients of robbery with violence

Holding

All ingredients were satisfied: the appellant was in company of another, armed with a panga, and used violence and threats to kill while robbing P.W.1 of a bicycle.

Reasoning

Adopting Oluoch v Republic, the court enumerated the alternative circumstances of the offence and found that the appellant was in company of another, armed with a panga, threatened to kill P.W.1, assaulted him and robbed him of his bicycle. The court found the trial evidence established every ingredient of robbery with violence under Section 296(2) of the Penal Code.

p. 4
04

Sentence following Muruatetu

Holding

The mandatory death sentence was unconstitutional; the court reduced the sentence to the term already served, taking into account the appellant's custody since 2005, that P.W.1 was not harmed, and that the stolen bicycle was recovered.

Reasoning

At the time of sentencing the death sentence was mandatory, so the appellant's failure to mitigate was immaterial. Following Francis Karioko Muruatetu v Republic, the mandatory nature of the death sentence is unconstitutional. The trial court also failed to obtain a certificate of prior convictions. Weighing these factors and the recovery of the stolen item, the court found it fitting to reduce the sentence to time served.

p. 4

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to matters of law and will not interfere with concurrent findings of fact by the two lower courts unless those findings are based on no evidence, on a misapprehension of the evidence, or on wrong principles.
  • Robbery with violence under Section 296(2) of the Penal Code is established where the offender is armed with a dangerous or offensive weapon, or is in company with one or more persons, or wounds, beats, strikes or uses personal violence at or immediately before or after the robbery.

Court orders

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  1. 1.Dismissal of the appeal against conviction
  2. 2.Reduction of the appellant's death sentence to the term already served

Authorities

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Legislation

  • Penal CodeSection 296(2)

Cases cited (4)

  • Kaingo versus Republic
    [1982] KLR 213
  • Reuben Karoti S/O Karanja versus Republic
    [1956] 17 EALA 146
  • Oluoch vs. Repubic
    [1985] KLR
  • Francis Karioko Muruatetu & another vs. Republic
    [2017] eKLR
On appeal from
High Court of Kenya at Busia
H.C.CR.A No. 30 of 2011
Jurisdiction invoked
Second appeal to the Court of Appeal under the Constitution of Kenya, 2010, confined to matters of law

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Francis Omwenga Opiyo v Republic [2020] KECA 70 (KLR)", Case Analysis (2020). Criminal Appeal No. 5 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/70/eng@2020-12-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.