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Court of AppealPartially AllowedCriminal Appeal No. 135 of 2015· [2020] KECA 943 (KLR)

Josam Wesonga Makokha v Republic

Court of Appeal
31 January 2020
2,075 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 a robbery conviction but replaced the death sentence with 25 years' imprisonment, confirming courts can now choose sentences after Muruatetu.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Koome, Sichale & Kantai, JJA) dismissed a second appeal against conviction but allowed it in part on sentence. The appellant was convicted by the Acting Senior Principal Magistrate at Butere on two counts of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code and sentenced to death; the High Court at Kakamega (Sitati & Mrima, JJ) dismissed his first appeal on 21st July 2015. On the second appeal, the court reiterated that its mandate under Section 361(1) of the Criminal Procedure Code is confined to matters of law, applying David Njoroge Macharia and Kaingo. It upheld the concurrent findings that the appellant was positively identified by P.W.1 by the T-shirt he wore at the identification parade, and that recovery of recently stolen items from his house fortified the conviction, his claim of planting being rejected. Applying Oluoch v Republic, the court found all ingredients of robbery with violence proved: multiple robbers, assault on all three victims, and use of offensive weapons. On sentence, applying Muruatetu, the court held that the death sentence is no longer mandatory and, given the gruesome circumstances of the robbery, substituted twenty-five years' imprisonment from the date of conviction. The judgment is a single judgment of the whole court.

Key legal issues

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01

Scope of the Court's mandate on a second appeal

Holding

The mandate is confined to matters of law under Section 361(1) of the Criminal Procedure Code; concurrent findings of fact are not disturbed absent no evidence, misapprehension or wrong principles.

Reasoning

The court invoked Section 361(1)(a) and applied David Njoroge Macharia and Kaingo, which state that a second appeal is confined to points of law and the test is whether there was any evidence on which the trial court could find as it did.

p. 2
02

Identification and possession of recently stolen property

Holding

P.W.1 positively identified the appellant by the T-shirt he wore at the parade, and recovery of recently stolen items from the appellant's house fortified the finding that he was one of the robbers.

Reasoning

The court agreed with the first appellate court's careful re-evaluation: the witness was focused and steady, and the appellant failed to adequately explain possession of the stolen items recovered from him, displacing his claim of planting.

p. 3
03

Ingredients of robbery with violence

Holding

The ingredients under Section 295 as read with Section 296(2) of the Penal Code were satisfied: more than one robber, all three victims assaulted, and the appellant armed with offensive weapons.

Reasoning

Applying Oluoch v Republic, the court found the alternative circumstances of robbery with violence present on the facts: company, wounding/beating of all victims, and use of offensive instruments.

p. 3
04

Sentence following Muruatetu

Holding

The mandatory death sentence having been outlawed, the court exercised sentencing discretion and substituted death with 25 years' imprisonment from the date of conviction.

Reasoning

The record was silent on mitigation and first-offender status, but given the gruesome circumstances of the robbery the court deemed it fit to substitute imprisonment of a term for the death sentence.

p. 3

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 unless based on no evidence, misapprehension of the evidence, or wrong principles.
  • Following Muruatetu, the death sentence is no longer mandatory; courts have discretion in sentencing for robbery with violence, considering the circumstances of the offence, mitigation and first-offender status.

Court orders

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  1. 1.Appeal against conviction dismissed
  2. 2.Sentence of death substituted with imprisonment for a term of twenty five (25) years from the date of conviction

Authorities

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Legislation

  • Penal CodeSection 295
  • Penal CodeSection 296(2)
  • Penal CodeSection 322(1)
  • Criminal Procedure CodeSection 361(1)
  • Criminal Procedure CodeSection 7
  • Police Force Standing Orders

Cases cited (6)

  • Francis Karioko Muruatetu & another vs. Republic
    SC Petition No. 16 of 2015

    Outlawed the mandatory nature of the death sentence; courts have discretion in sentencing.

  • David Njoroge Macharia vs. Republic
    [2011] eKLR

    Summarises the second appeal mandate: matters of law only; no interference with concurrent findings absent no evidence, misapprehension or wrong principles.

  • Chemagong vs. Republic
    [1984] KLR 213

    Cited within Macharia quote on the second appeal mandate.

  • Kaingo versus Republic
    [1982] KLR 213

    Second appeal confined to points of law; test is whether there was any evidence on which the trial court could find as it did.

  • Reuben Karoti S/O Karanja versus Republic
    [1956 17 EALA 146]

    Cited within Kaingo quote on the second appeal test.

  • Oluoch vrs. Republic
    [1985] KLR

    Circumstances in which robbery with violence is committed.

On appeal from
High Court of Kenya at Kakamega
Kakamega HC. CRA No. 23 of 2013
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code (second appeal on 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, "Josam Wesonga Makokha v Republic", Case Analysis (2020). Criminal Appeal No. 135 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/943/eng@2020-01-31

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