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Court of AppealDismissedCriminal Appeal No 137 of 2015· [2023] KECA 43 (KLR)

Omulama & another v Republic (Criminal Appeal 137 of 2015) [2023] KECA 43 (KLR)

Court of Appeal of Kenya
3 February 2023
PKP.O. KiageHOH.A. OmondiFTF. Tuiyott
3,170 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed the death sentence still applies to robbery with violence, rejecting claims that the Muruatetu decision allows re-sentencing.

What this practically means

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Executive summary

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This was a second appeal by two appellants convicted by the Senior Resident Magistrate (Hon V Mwangi) of robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code and gang rape contrary to section 10 of the Sexual Offences Act, with convictions and death sentences affirmed on first appeal by Majanja J, who additionally imposed a 20-year sentence on the gang rape count held in abeyance. On the night of December 20, 2012, two assailants armed with pangas and torches invaded PW1's home, transferred Kshs 2,400 from her M-Pesa to an account registered in the 1st appellant's name, and gang raped her 18-year-old daughter in her presence. The Court of Appeal (Kiage, Omondi and Tuiyott JJA), exercising its mandate under section 361(1)(a) of the Criminal Procedure Code limited to matters of law, identified two issues: the reliability of the identification evidence and eligibility for re-sentencing. Applying the Turnbull caution, the Court found the identification safe, given the one-hour duration of the attack, torch light, bedroom lights on, close proximity, descriptions to police and unfaulted identification parades; the M-Pesa transfer further implicated the 1st appellant. On sentence, the Court held that Muruatetu does not avail the appellants, the death sentence remaining a possible punishment for robbery with violence, and the aggravated circumstances did not deserve review. A new forensic-evidence ground not raised on first appeal was held incompetent. The appeal was dismissed and the convictions and sentences affirmed.

Key legal issues

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01

Sufficiency and safety of identification evidence where assailants used torches and lights during a night robbery

Holding

Identification was safe: about one hour of contact, torch light, bedroom lights on for about a minute, close proximity, description to police and unfaulted identification parades

Reasoning

The court applied the Turnbull caution to the facts. Despite the sudden and traumatic intrusion, the assailants had the luxury of time (about one hour), carried lit torches they flashed on their own faces, and the bedroom lights were switched on for about a minute. The victims were in close proximity with the assailants, described them to police, and confidently picked them out in identification parades that were not faulted. Additional M-Pesa transfer evidence against the 1st appellant reinforced the identification.

p. 5
02

Whether Francis Kariokor Muruatetu renders the death sentence for robbery with violence unconstitutional or subject to re-sentencing

Holding

No; the death sentence remains a lawful possible sentence for robbery with violence and on these aggravated facts re-sentencing was not deserved

Reasoning

Counsel for the appellants urged that Muruatetu applied to robbery with violence sentences. The respondent, relying on Muruatetu II directions, submitted that Muruatetu dealt specifically with the mandatory death sentence in murder cases. The court accepted that position and, noting the extreme aggravation - a one-hour terrorization, robbery and gang rape in the presence of the victim's mother - declined to review the death sentence.

p. 6
03

Whether a ground not raised in the first appeal (failure to order forensic tests) can be entertained on second appeal

Holding

It cannot properly arise before the second appellate court

Reasoning

The appellants' counsel sought in submissions to introduce the contention that the trial court failed to order forensic and scientific tests to ascertain the perpetrators of the gang rape. The court held this argument was not taken up in the first appeal and therefore could not properly arise before it, citing Alfayo Gombe Okello v Republic.

p. 4

Legal principles established

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  • A second appeal is confined to matters of law only under section 361(1)(a) of the Criminal Procedure Code
  • A new ground (such as failure to conduct forensic tests) not raised in the first appeal cannot properly arise on second appeal
  • Muruatetu does not render the death sentence for robbery with violence non-mandatory in a way that entitles re-sentencing on aggravated facts

Court orders

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  1. 1.Appeal dismissed
  2. 2.Conviction and sentences imposed by the courts below affirmed

Authorities

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Legislation

  • Penal Codesection 295
  • Penal Codesection 296(2)
  • Sexual Offences Actsection 10
  • Sexual Offences Actsection 11(4)
  • Criminal Procedure Codesection 361(1)(a)

Cases cited (4)

  • Alfayo Gombe Okello v Republic
    [2010] eKLR
  • Francis Kariokor Muruatetu & another
    [2017] eKLR
  • Rex v Turnbull
    [1976] 3 KLR 445
  • Karani v R
    [2010] 1 KLR 73
On appeal from
High Court of Kenya
not stated
Jurisdiction invoked
Section 361(1)(a) 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, "Omulama & another v Republic (Criminal Appeal 137 of 2015) [2023] KECA 43 (KLR)", Case Analysis (2023). Criminal Appeal No 137 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/43/eng@2023-02-03

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