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Court of AppealPartially AllowedCriminal Appeal No. 110 of 2017· [2020] KECA 565 (KLR)

Zacharia Kimeu Samson & nother v Republic [2020] KECA 565 (KLR)

Court of Appeal
19 June 2020
William OukoW. OukoAMA.K. MurgorSISichale
1,956 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal upheld two robbery convictions but replaced death sentences with 20 years, confirming sentencing after Muruatetu is discretionary.

What this practically means

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Executive summary

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This second appeal arose from the appellants' convictions for robbery with violence contrary to section 296(2) of the Penal Code and sentences of death imposed by the trial magistrate, upheld on first appeal by the High Court (F. Ochieng & L. Achode JJ.) on 17th December 2012. The complaint was that the offence occurred on 10th October 2005 at Biafra Estate, where the appellants, in a group of eight others, attacked two complainants, stole personal items, and the 2nd appellant stabbed PW1; the appellants were subsequently identified at identification parades at Shauri Moyo Police Station. On appeal, counsel for the appellants challenged the conduct and standard of the identification parades under the Force Standing Orders, the absence of prior investigations, alleged violations of section 150 of the Criminal Procedure Code, the failure to call the arresting and investigating officers, and contradictions in the prosecution case; counsel for the respondent relied on favourable daylight identification conditions and on Muruatetu to invite substitution of the death sentence. The Court of Appeal, sitting as Ouko (P), Murgor and Sichale, JJ.A, held that on a second appeal it considers only issues of law and must respect concurrent findings of fact unless unsupported by evidence. It found the identification conditions favourable and the parades properly conducted, and held that the failure to call the arresting and investigating officers was cured by the proviso to section 143 of the Evidence Act. The appeal on conviction was dismissed, but the death sentence was set aside and replaced with twenty years imprisonment, taking into account time spent in custody under section 333(2) of the Criminal Procedure Code. Sichale, JA declined to sign the judgment, being of a different opinion.

Key legal issues

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01

Whether the visual identification of the appellants was safe and reliable

Holding

Identification was proper: the offence occurred in broad daylight, the appellants were in close proximity to the complainants for about ten minutes, and they were positively identified in two properly conducted identification parades.

Reasoning

The court found the conditions favourable: the attack took place at 10.00 am, PW1 struggled with the 2nd appellant before being stabbed, giving sufficient opportunity to observe; identification was by appearance and clothing; the parades each had 8 members, the appellants chose their positions, and the parade forms corroborated PW2's testimony. There was no evidence the complainants saw the appellants before the parade.

p. 2
02

Whether the failure to call the arresting and investigating officers was fatal to the prosecution case

Holding

It was not: under the proviso to section 143 of the Evidence Act no particular number of witnesses is required to prove a fact, and the case was proved beyond reasonable doubt without them.

Reasoning

Both courts below were satisfied the prosecution case had been proven beyond reasonable doubt, so the absence of the arresting and investigating officers did not affect that conclusion. The court invoked the proviso to section 143 of the Evidence Act, which abolishes any rule of mandatory witness numbers.

p. 2
03

Whether the death sentence should stand in light of Muruatetu

Holding

The death sentence was set aside and substituted with a custodial sentence of twenty years, taking into account that the appellants were first offenders, the injury to PW1 was not severe, and the value of stolen items was only Kshs. 7,000.

Reasoning

Following the Supreme Court's decision in Muruatetu, sentencing in capital offences is discretionary rather than the mandatory imposition of death. Exercising that discretion, the court considered the appellants' status as first offenders, the moderate injury, and the low value of stolen property, and interfered with the death sentence.

p. 3

Legal principles established

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  • On a second appeal, the Court of Appeal considers only issues of law and must respect concurrent findings of fact by the two courts below unless unsupported by the evidence or based on a misapplication of the evidence.
  • The offence of robbery with violence under section 296(2) of the Penal Code is committed in any of three circumstances: 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.
  • Evidence of visual identification must be examined with special care to avoid miscarriages of justice, and the court must warn itself of the special need for caution before convicting on identification evidence.
  • Following Muruatetu, the death sentence is not mandatory; sentencing is a discretionary function of the court.

Court orders

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  1. 1.Dismissal of the appeal on conviction
  2. 2.Setting aside of the death sentence
  3. 3.Substitution of a custodial sentence of twenty (20) years imprisonment for each appellant
  4. 4.The sentence to take into account the period spent in custody pursuant to section 333(2) of the Criminal Procedure Code

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Criminal Procedure Codesection 361(1)
  • Criminal Procedure Codesection 333(2)
  • Criminal Procedure Codesection 150
  • Evidence Actsection 143
  • Force Standing Orderschapter 46
  • Court of Appeal RulesRule 32(2)

Cases cited (5)

  • M’Riungu vs. Republic
    (1983) KLR 455
  • Juma Mohamed Ganzi & 2 others vs. Republic
    (2005) eKLR
  • Oluoch v Republic
    [1985] KLR 549
  • Cleophas Otieno Wamunga V. R
    (1989) eKLR
  • Francis Karioko Muruatetu & another vs. Republic
    (2017) eKLR
On appeal from
High Court at Nairobi
H.C.CR.A 210 & 211 of 2008
Jurisdiction invoked
Second appeal under section 361(1) of the Criminal Procedure Code, confined to issues 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, "Zacharia Kimeu Samson & nother v Republic [2020] KECA 565 (KLR)", Case Analysis (2020). Criminal Appeal No. 110 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/565/eng@2020-06-19

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