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Court of AppealDismissedCriminal Appeal 18 of 2019· [2022] KECA 1244 (KLR)

Zakayo v Republic

Court of Appeal
4 November 2022
WKW. KaranjaASAsike-MakhandiaAMA.K. Murgor
3,264 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 confirmed that DNA evidence is not required to prove rape and that life sentences for robbery with violence cannot be reopened using Muruatetu.

What this practically means

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Executive summary

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The appellant, Simon Ngugi Zakayo, was convicted by the trial magistrate of robbery with violence contrary to section 296(2) of the Penal Code and of the rape of PW1, and acquitted on the count concerning PW3. The High Court upheld the conviction and sentence, and this second appeal followed. The Court of Appeal, per W. Karanja, Asike-Makhandia and A.K. Murgor, JJ.A, framed six issues: identification, the identification parade, the absence of a DNA test, alleged contradictions, whether the courts below properly evaluated the evidence, and mitigation. The court held that identification was safe: PW1 saw the appellant while the lights were on during a roughly 20-minute attack and later recognised his voice, while PW3 also identified him and both picked him out at a properly conducted parade. A DNA test was held not to be mandatory under section 36(1) of the Sexual Offences Act and unnecessary absent mistaken identity. Applying Johana Ndungu and Mehtab Ahmed, the court found the ingredients of robbery with violence proved, proof of one ingredient sufficing, and the rape conviction corroborated by medical evidence. On sentence, the court declined to revisit the life imprisonment term, holding that the Supreme Court's July 6, 2021 guidelines confine Muruatetu to murder sentences under sections 203 and 204 of the Penal Code. The appeal against conviction and sentence was dismissed in its entirety. Notably, the judgment contains an internal inconsistency, recording a death sentence in one passage and life imprisonment in another.

Key legal issues

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01

Whether the appellant was properly identified

Holding

Identification was proper: PW1 saw the appellant while lights were on during a 20-minute ordeal and later recognised his voice; PW3 also identified him, and both picked him out at an identification parade.

Reasoning

PW1 testified the house lights were on when the assailants entered and the attack lasted about 20 minutes, allowing visual identification. When the lights were off during the rape, she recognised the appellant by voice, applying the Karani v Republic voice-recognition criteria. PW3 also saw and identified the appellant, so the single-witness objection failed. Both witnesses positively identified him at the parade.

p. 4
02

Whether the identification parade was properly conducted

Holding

The parade was properly conducted; nothing unsatisfactory was found in the evidence of the parade officer and witnesses.

Reasoning

The parade comprised eight people of the same age, stature and size as the appellant, who consented to participate and stood between numbers 5 and 6. Both PW1 and PW3 identified him, positions were changed several times with consistent identification, and the appellant signed the parade forms. The court found no breach of the Police Standing Orders.

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Whether a DNA test was required

Holding

A DNA test was not mandatory and was unnecessary because this was not a case of mistaken identity.

Reasoning

Section 36(1) of the Sexual Offences Act is discretionary, not mandatory. PW1 identified the appellant as her rapist under favourable conditions and later picked him out at an identification parade. Since identity was not in issue, the absence of DNA evidence did not undermine the rape conviction.

p. 5
04

Whether the offences of robbery with violence and rape were proved and the evidence properly evaluated

Holding

Both offences were proved to the required standard; the courts below correctly evaluated the evidence and the convictions were safe.

Reasoning

The assailants were armed with an axe and hoe handle, were more than one, and fatally wounded the deceased, satisfying section 296(2); proof of one ingredient suffices. The rape conviction rested on PW1's testimony corroborated by medical evidence showing penetration and injuries consistent with forceful penetration without consent.

p. 6
05

Whether the High Court took into account the appellant's mitigation and could revisit the sentence

Holding

The court had no discretion to interfere with the life imprisonment sentence by invoking Muruatetu, which is limited to murder sentences.

Reasoning

The Supreme Court's July 6, 2021 guidelines confined Muruatetu to sentences of murder under sections 203 and 204 of the Penal Code. The appellant's sentence was for robbery with violence, so the jurisdiction to review mandatory sentences under Muruatetu was unavailable and the sentence challenge failed.

p. 6

Legal principles established

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  • On a second appeal under section 361 of the Criminal Procedure Code, the Court of Appeal considers only matters of law, not matters of fact.
  • A DNA test is not mandatory to prove a sexual offence; section 36(1) of the Sexual Offences Act is discretionary and medical or DNA evidence is not the only proof of commission of a sexual offence.
  • The ingredients of robbery with violence under section 296(2) of the Penal Code are distinctive, not conjunctive; proof of any one suffices for conviction.
  • The Muruatetu decision does not apply to sentences for robbery with violence; it is limited to sentences of murder under sections 203 and 204 of the Penal Code.

Court orders

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  1. 1.Appeal against conviction and sentence dismissed

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Penal Codesections 203 and 204
  • Sexual Offences Actsection 3(1)(a)
  • Sexual Offences Actsection 11(1)(6)
  • Sexual Offences Actsection 36(1)
  • Criminal Procedure Codesection 361
  • Police Standing OrdersStanding Order 6(iv)(d)

Cases cited (6)

  • Francis Karioko Muruatetu & Anor vs Republic
    [2017] eKLR

    Appellant sought resentencing; court held its application is limited to murder sentences under sections 203 and 204 of the Penal Code.

  • Joseph Njoroge vs Republic
    [1982] KLR 388

    Second appeal confined to matters of law under section 361 of the Criminal Procedure Code.

  • Karani vs Republic
    (1985) KLR 290

    Criteria for safe identification by voice recognition.

  • Robert Mutungi Mumbi vs Republic
    Malindi Cr App No 52 of 2014

    Section 36(1) of the Sexual Offences Act is not mandatory; DNA evidence not the only proof of a sexual offence.

  • Johana Ndungu vs Republic
    Criminal Appeal No 116 of 1995 (unreported)

    Ingredients of robbery with violence under section 296(2) of the Penal Code.

  • Mehtab Ahmed Ali Hussein Shah vs Republic
    Criminal Appeal No 85 of 2019

    Ingredients of robbery with violence are distinctive, not conjunctive; proof of one suffices.

On appeal from
High Court
Criminal Appeal No. 48 of 2017
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal on matters of law only)

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, "Zakayo v Republic", Case Analysis (2022). Criminal Appeal 18 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1244/eng@2022-11-04

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