Dickson Amalemba Lisanza & Geoffrey Shituka Cheruta v Republic (Criminal Appeal 67 of 2016) [2021] KECA 711 (KLR)
The bottom line
#Kenya's Court of Appeal freed one man because conflicting witness accounts created doubt, but confirmed another's death sentence for robbery.
What this practically means
#Executive summary
#Key legal issues
#Safety of the 1st appellant's identification by a single witness
The conviction was unsafe: Hardley's evidence placed the 1st appellant outside the gate while Mathew placed him inside among the robbers, contradicting Mathew's identification, and the benefit of the doubt should have gone to the 1st appellant
Mathew's evidence was the only evidence implicating the 1st appellant, but Hardley found him at the gate as the robbery was going on, he did not flee, and he later joined Hardley at Roseline's house, corroborated by David's testimony. The first appellate court failed to consider this evidence or the burden of proof, so the identification was not free from error and the prosecution failed to prove the case beyond reasonable doubt.
Misdirection by the first appellate court on the burden of proof
The first appellate court misdirected itself by considering the prosecution case first and then asking whether the defence disapproved it, thereby casting the onus of disapproval on the defence
In finding that the appellants' defences did not shake the prosecution's case, the learned Judges provisionally accepted the prosecution case and cast on the defence an onus of rebutting it. Following Okale v Republic and Ndege Maragwa, this is an essentially wrong approach; the burden of proof rests throughout on the prosecution and the evidence must be weighed as a whole.
Ingredients of robbery with violence
The ingredients were established: the assailants were armed with dangerous weapons (gun, panga, crowbar), were more than one person, and used personal violence in which one victim was killed
P3 forms and treatment notes showed several victims were wounded and one killed; the evidence established the presence of dangerous weapons and multiple assailants. The respondent relied on Oluoch v Republic for the three alternative factors, at least one of which must be present; here all three were present, so the offence was made out.
Safety of the 2nd appellant's conviction and sentence
The 2nd appellant was properly identified through recognition by four witnesses under favourable lighting, and the death sentence, though no longer mandatory, was appropriate on the facts
Esther, Azibeta, Isaac and Shibada all recognised the 2nd appellant, using a lantern, an electric bulb and electricity lights respectively, and all testified he was armed. Following Muruatetu, the mandatory death sentence is unconstitutional but death remains a lawful sentence; the attempted robbery victim was shot dead in cold blood, making the sentence appropriate.
Legal principles established
#- On a second appeal the Court is confined to issues of law and must respect concurrent findings of fact of the two lower courts, interfering only where findings are unsupported by evidence or based on a perversion of the evidence or law
- Where the only evidence against a defendant is evidence of identification or recognition, the court must examine it carefully and be satisfied that the circumstances of identification were favourable and free from possibility of error before founding a conviction on it
- It is fundamentally wrong to evaluate the case for the prosecution in isolation and then consider whether the case for the defence rebuts it; the burden of proof in criminal proceedings is throughout on the prosecution and the evidence must be considered as a whole
Court orders
#- 1.Appeal against conviction and sentence of the 1st appellant allowed
- 2.1st appellant's conviction quashed and sentence of death set aside
- 3.1st appellant to be set free forthwith unless otherwise lawfully held
- 4.2nd appellant's appeal against conviction and sentence dismissed in its entirety
- On appeal from
- High Court of Kenya at Kakamega
- Kakamega H.C.CR.A. No. 26 & 32 of 2014
- Jurisdiction invoked
- Second appeal under section 361(1)(a) of the Criminal Procedure Code, confined to issues of law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dickson Amalemba Lisanza & Geoffrey Shituka Cheruta v Republic (Criminal Appeal 67 of 2016) [2021] KECA 711 (KLR)", Case Analysis (2021). Criminal Appeal No. 67 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/711/eng@2021-04-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.