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Court of AppealPartially AllowedCriminal Appeal (not expressly numbered in judgment)· [2021] KECA 213 (KLR)

Stephen & 3 others v Republic (Criminal Appeal 45 of 2016) [2021] KECA 213 (KLR)

Court of Appeal of Kenya
19 November 2021
DMD. K. MusingaASAsike-MakhandiaFSF. Sichale
4,278 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld robbery convictions but replaced death sentences with 30 years' imprisonment, clarifying what Muruatetu did and did not change.

What this practically means

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Executive summary

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This was a second appeal against the judgment of Sitati and Langat, JJ. delivered on 22nd March 2012, dismissing the appellants' first appeals against conviction for robbery with violence contrary to Section 296(2) of the Penal Code, and against the death sentence imposed by the trial court. The 2nd appellant also faced a rape count under the Sexual Offences Act. The Court of Appeal, comprising Musinga (P), Asike-Makhandia and Sichale, JJA, in a single unanimous judgment, restated that on a second appeal only matters of law fall for consideration under Section 361(1)(a) of the Criminal Procedure Code. It held that PW2's night-time identification of the 1st and 2nd appellants by torchlight, over a sustained period and with prompt descriptions of their appearance and clothing, was free from error; the convictions of the 3rd and 4th appellants were properly grounded on circumstantial evidence; and the first appellate court had adequately re-evaluated the evidence and considered the appellants' mere denials. The appeals against conviction were dismissed. On sentence, the Court accepted that Muruatetu did not invalidate the death penalty but only its mandatory nature; nevertheless, given the lack of sentencing discretion at trial and the mitigation on record, it substituted the death sentence with thirty (30) years' imprisonment from the date of conviction and sentence. The appeal therefore partially succeeded on sentence only. No costs order was made.

Key legal issues

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01

Scope of second appeal

Holding

The Court considers only matters of law under Section 361(1)(a) Criminal Procedure Code

Reasoning

The Court reiterated its primary role as a second appellate court, steering clear of issues of fact and concerning itself only with issues of law, citing Kados v Republic and David Njoroge Macharia v Republic.

p. 4
02

Identification by a single witness at night

Holding

Identification of the 1st and 2nd appellants by PW2 was free from error given proximity, torchlight, duration and prompt description

Reasoning

Both lower courts warned themselves of the dangers of single-witness visual identification. PW2's evidence remained firm under cross-examination; she described the assailants' appearance and clothes shortly after the robbery, and the appellants did not mask their faces.

p. 6
03

Conviction of 3rd and 4th appellants on circumstantial evidence

Holding

Their presence in the same house with wet, muddy trousers after a drizzle, with stolen items recovered nearby, properly grounded conviction

Reasoning

The Court found the circumstantial evidence sufficient: they were found sleeping in the same room as the identified robbers, with wet and muddy trousers despite a drizzle, and stolen items were recovered from within and around the house.

p. 6
04

Sentence after Muruatetu

Holding

Death sentence substituted with 30 years' imprisonment given the lack of sentencing discretion at trial and mitigation on record

Reasoning

The Court held Muruatetu only invalidated the mandatory nature of the death penalty, not the penalty itself. However, given the fault identified in Muruatetu regarding discretion and the appellants' mitigation, it was inclined to interfere with sentence.

p. 8

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
  • Muruatetu did not invalidate mandatory or minimum sentences under the Penal Code or the Sexual Offences Act; it only struck down the mandatory nature of the death sentence

Court orders

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  1. 1.Appeals against conviction dismissed
  2. 2.Sentence of death substituted with a term of imprisonment of thirty (30) years from the date of conviction and sentence of the appellants

Authorities

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Legislation

  • Penal CodeSection 296(2)
  • Penal CodeSection 204
  • Sexual Offences ActSection 3(3)
  • Sexual Offences ActSection 11(6)
  • Criminal Procedure CodeSection 361(1)(a)

Cases cited (9)

  • Kados vs. Republic
    Nyeri Cr. Appeal No. 149 of 2006 (UR)
  • David Njoroge Macharia vs. Republic
    [2011] eKLR
  • Chemagong vs. Republic
    [1984] KLR 213
  • Maitanyi v Republic
    (1968) EA
  • Abdallah Bin Wendo v Republic
    (1953) 20 EACA 16
  • Pandya v Republic
    (1954) EA 336
  • Okeno v Republic
    (1972) EA
  • Abdul Hameed Saif v Ali Mohammed Sholan
    (1955) 22 EACA 270
  • Francis Karioko Muruatetu & Another v Republic
    [2017] eKLR
On appeal from
High Court of Kenya
Not stated
Jurisdiction invoked
Second appeal under Section 361(1)(a) of the Criminal Procedure Code

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, "Stephen & 3 others v Republic (Criminal Appeal 45 of 2016) [2021] KECA 213 (KLR)", Case Analysis (2021). Criminal Appeal (not expressly numbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/213/eng@2021-11-19

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