Josam Wesonga Makokha v Republic
The bottom line
#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
#Executive summary
#Key legal issues
#Scope of the Court's mandate on a second appeal
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.
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.
Identification and possession of recently stolen property
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.
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.
Ingredients of robbery with violence
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.
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.
Sentence following Muruatetu
The mandatory death sentence having been outlawed, the court exercised sentencing discretion and substituted death with 25 years' imprisonment from the date of conviction.
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.
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 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
#- 1.Appeal against conviction dismissed
- 2.Sentence of death substituted with imprisonment for a term of twenty five (25) years from the date of conviction
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.