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Court of AppealDismissedCriminal Appeal 127 of 2016· [2022] KECA 1365 (KLR)

Bichanga & 3 others v Republic

Court of Appeal
2 December 2022
PKP O KiageHOH A OmondiFTF Tuiyott
2,204 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 upheld death sentences for four men who lynched two elderly women, confirming that Muruatetu did not abolish the death penalty itself.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Kiage, Omondi and Tuiyott, JJA) dismissed an appeal by four appellants convicted of the murder of two elderly women lynched and burnt to death on accusations of witchcraft at Getenge, Kisii County, on 25 February 2014. The High Court (Karanja J) had convicted them on two counts of murder contrary to section 203 as read with section 204 of the Penal Code and sentenced them to death, the second count's sentence being held in abeyance. On appeal, counsel for the appellants attacked the identification evidence, contending that darkness, smoke from burning tyres and the mob conditions made recognition unsafe, and challenged the death sentence as excessive in light of the Supreme Court's decision in Francis Muruatetu & Another v Republic on the unconstitutionality of the mandatory death sentence. The State maintained the crime occurred in broad daylight and that the witnesses knew the appellants as fellow villagers and relatives. The Court, exercising its first appellate mandate to re-evaluate the evidence, held that the cumulative evidence showed the crime occurred in daylight, giving PW1, PW2 and PW3 adequate time to discern identity, and that identification by recognition was reliable and conducive. It affirmed the conviction. On sentence, it held Muruatetu invalidated only the mandatory nature of the death penalty and does not preclude its imposition in deserving cases; describing the killing as premeditated mob violence, it affirmed the death sentence and directed that any commutation to life imprisonment must carry no possibility of release or parole. The appeal was dismissed in its entirety.

Key legal issues

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01

Safety of identification by recognition

Holding

Conviction on identification by recognition was sound; conditions were favourable as the crime occurred in broad daylight and witnesses knew the appellants.

Reasoning

The court re-evaluated the evidence and found the witnesses' ordinary daylight activities (shamba work, board meetings) placed them at the scene in daylight. The transaction took time, allowing discernment of identity. PW2 and PW3 expressly knew all four accused as villagers and relatives, making recognition reliable.

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Appropriateness of the death sentence after Muruatetu

Holding

The death sentence was affirmed; Muruatetu removed only the mandatory nature of the sentence and does not bar its imposition in deserving cases.

Reasoning

The court characterised the killing as premeditated, malicious mob violence against two elderly women burnt alive before their children, repelling rescue attempts. It held such conduct threatens society's safety and that this was a paradigmatic deserving case for the death penalty.

p. 4

Legal principles established

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  • A first appellate court must analyse and re-evaluate the evidence afresh, mindful that the trial court saw and assessed witness demeanour.
  • Identification by recognition is more reliable than identification of a stranger.
  • Muruatetu invalidated only the mandatory nature of the death sentence; courts retain discretion to impose death in deserving cases.

Court orders

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  1. 1.Affirmation of the death sentence imposed by the High Court
  2. 2.Direction that if the sentence is commuted to life imprisonment, the appellants must never be released and should be held for the remainder of their natural lives with no possibility of parole
  3. 3.Dismissal of the appeal in its entirety

Authorities

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Legislation

  • Penal CodeSection 203 as read together with Section 204

Cases cited (5)

  • Francis Muruatetu & Another vs Republic
    [2017] eKLR

    Unconstitutionality of the mandatory nature of the death sentence

  • Reuben Ombura Muma & Another vs Republic
    [2018] eKLR

    Duty of a first appellate court to re-evaluate evidence

  • Alex Boniface Muliungi vs Republic
    [2014] eKLR

    Factors for assessing reliability of identification evidence, citing Regina v Turnbull

  • Regina v Turnbull
    [1976] 3 WLR 445

    Factors for consideration in assessing identification evidence

  • Hashon Bundi Gitonga vs Republic
    [2016] eKLR

    Identification by recognition is more reliable than identification of a stranger

On appeal from
High Court of Kenya at Kisii
HCCR No. 31 of 2014
Jurisdiction invoked
First appellate jurisdiction over a High Court criminal appeal (Court of Appeal, criminal appeal against conviction and sentence)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bichanga & 3 others v Republic", Case Analysis (2022). Criminal Appeal 127 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1365/eng@2022-12-02

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