Wanjiku v Republic (Criminal Appeal 23 of 2019) [2021] KECA 330 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a robbery conviction but replaced the death sentence with 20 years' imprisonment, confirming single-judge first appeals are lawful.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the first appeal was lawfully heard by a single judge of the High Court under Section 359(1) of the Criminal Procedure Code as amended
- 2.Whether the first appellate court failed in its duty to re-assess the evidence adduced at trial
- 3.Whether the identification of the appellant by recognition was satisfactory and free from error
- 4.Whether the death sentence was lawful and appropriate
Key legal issues
#Lawfulness of first appeal heard by a single judge
The first appeal heard and determined by Mutende, J. as a single judge in 2017 was lawful because Section 359(1) of the Criminal Procedure Code had been amended by the High Court (Organization and Administration) Act 2015 to provide for hearing by one judge, with effect from 2nd January 2016.
The schedule to the High Court (Organization and Administration) Act No. 27 of 2015 substituted the words 'two judges' with 'one judge' in Section 359(1). The Act was assented to on 15th December 2015 and commenced on 2nd January 2016, so the single-judge hearing in 2017 was lawful. The court also noted its prior decision in Francis Irungu Muthoni v Republic on the same amendment. Additionally, the quorum provision of that Act allows constitution of the court by a single judge.
Duty of the first appellate court to re-assess evidence
Failure by the first appellate court to re-evaluate the evidence would be a matter of law, but on the record the learned Judge considered and analysed the grounds of appeal and evidence, so there was no failure of duty.
The court accepted that a failure of the first appellate court to perform its re-evaluation duty is a matter of law open on second appeal, citing Alexander Ongasia. However, there is no set format for re-evaluation; it must simply be self-evident in the judgment (Jeremiah Nyaga). Here the Judge analysed the grounds and evidence and concluded the trial court had not erred, so the ground failed.
Identification by recognition
The evidence of recognition was satisfactory: the complainant knew the appellant, and PW2 saw the assailants by moonlight, knew the appellant previously, and the appellant was arrested at the locus in quo.
The court restated the caution in Paul Etole regarding identification evidence, noting mistakes can be made even in recognition of known persons. Applying that caution, it found the recognition evidence reliable: the complainant had known the appellant for months, PW2 was aided by bright moonlight from 87 metres, and the appellant was pursued and arrested at the scene, from which the trial and first appellate courts were entitled to convict.
Sentence for robbery with violence
The death sentence was set aside because the trial magistrate did not exercise sentencing discretion, treating death as the only lawful sentence; a term of twenty years was substituted given the injuries, the items robbed and the appellant being treated as a first offender.
The trial magistrate considered death the only lawful sentence for robbery with violence, showing discretion was not exercised. Although the appellant said nothing in mitigation, he was treated as a first offender and should not have received the maximum penalty - a factor the first appellate court overlooked. Weighing the injuries suffered and property stolen, the court found twenty years appropriate and allowed the appeal against sentence.
Legal principles established
#- A second appeal to the Court of Appeal is confined to matters of law, and the Court will not interfere with concurrent findings of fact unless based on no evidence.
- Following the amendment by the schedule to the High Court (Organization and Administration) Act No. 27 of 2015, a first appeal from a subordinate court may lawfully be heard by a single judge of the High Court.
- Where a trial magistrate proceeds on the view that only the maximum penalty is lawful, the sentencing discretion has not been exercised, and an appellate court may substitute an appropriate sentence.
Court orders
#- 1.Dismissal of the appeal against conviction
- 2.Allowance of the appeal against sentence
- 3.Substitution of the death sentence with a term of twenty (20) years imprisonment effective from the date of conviction
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- null
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal limited to matters of law)
Relief refused
#Quashing of conviction for robbery with violence
All ingredients of the offence were proved and identification by recognition was reliable; the first appellate court did not err in upholding conviction
Costs
No costs order was made in the judgment.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence.
This has of course changed with the amendment to Section 359(1) replacing two judges with one judge. See the schedule to the High Court (Organization and Adminstration) Act 2015.
The upshot of the above is that we dismiss the appellant's appeal against conviction but allow his appeal against sentence to the extent of substituting the death sentence with a term of twenty (20) years imprisonment efiective from the date of his conviction. Those shall be the orders of the Court.
Issues in the judgment
#The judgment records the appellant's submission that the first appeal was heard by a single judge, and the court's finding that Mutende, J. heard it and Ngugi, J. delivered the judgment, while the State contended two judges heard it; the record itself shows delivery of judgment by a different judge than the one who heard the appeal.
The case number of the present second appeal is not stated anywhere in the judgment text.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanjiku v Republic (Criminal Appeal 23 of 2019) [2021] KECA 330 (KLR)", Case Analysis (2021). Criminal Appeal (not specified in judgment text). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/330/eng@2021-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.