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Court of AppealDismissedNot stated in judgment (second appeal from Criminal Appeal of the High Court of Kenya at Nairobi)· [2023] KECA 670 (KLR)

Biketi v Republic (Criminal Appeal 95 of 2021) [2023] KECA 670 (KLR)

Court of Appeal of Kenya
9 June 2023
3,008 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 a death sentence for robbery with violence, ruling that the Muruatetu case only removed mandatory sentences for murder, not other crimes.

What this practically means

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Executive summary

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This is a second appeal by Shadrack Barasa Biketi against his conviction for robbery with violence contrary to section 296(2) of the Penal Code and the resultant death sentence, arising from the July 2013 robbery of Appleton Resort in Nairobi, in which goods worth about Kshs 1.2 million were stolen. The appellant, a reliever security guard who insisted on taking gate duty on the material night, was the only guard not bound during the robbery; he disappeared afterwards and was arrested two months later at Kangemi, where hotel-branded cutlery and Allan Brown security uniform and boots were recovered. He was convicted by the Chief Magistrate's Court at Kibera in April 2015 and sentenced to death; the High Court (Kimaru, J) dismissed his first appeal on June 14, 2018. The Court of Appeal, comprising Murgor, Ole Kantai and Gachoka, JJA, confined itself to matters of law under section 361 of the Criminal Procedure Code. It framed two issues: whether the High Court discharged its mandate to re-evaluate the evidence and reach its own conclusions, and whether the trial court shifted the burden of proof. The Court found the High Court had properly re-evaluated the purely circumstantial evidence, which was sufficient to support the conviction, and dismissed the appeal in its entirety on June 9, 2023. On sentence, the Court held that the Muruatetu jurisdiction extends only to murder charges, so the mandatory death penalty for robbery with violence was properly imposed. No costs order was made.

Key legal issues

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01

Whether the High Court on first appeal re-evaluated the evidence and reached its own conclusions

Holding

The High Court properly discharged its mandate; it rehashed the evidence, tested it against the elements of robbery with violence, and reached its own conclusions.

Reasoning

The record showed the High Court Judge reminded himself of his mandate on first appeal, posed critical questions about the appellant's conduct, including who opened the gate, why he was spared, why he vanished, and why he was found with the firm's uniform, and concluded he was part of the robbery gang. The second appellate court found this sufficient, agreeing the circumstantial evidence supported the conviction upheld below.

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02

Whether the circumstantial evidence was sufficient to sustain the conviction

Holding

Yes. The circumstantial evidence that the appellant manned the gate, vanished after the robbery, and was later found with stolen hotel cutlery and security uniform was sufficient.

Reasoning

Eight prosecution witnesses established that the appellant, though only a reliever, insisted on taking up gate duty on the night of the robbery; all other guards were bound and robbed; the appellant disappeared; and hotel-branded cutlery plus Allan Brown security uniform and boots were recovered from his house at Kangemi. This evidence was incompatible with innocence and supported the inference of guilt, so the trial conviction was rightly upheld.

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03

Whether the mandatory death sentence for robbery with violence violated the Constitution after Muruatetu

Holding

No. Muruatetu applied only to murder; the court was entitled to impose the prescribed death penalty for robbery with violence.

Reasoning

The appellant invited the Court to set aside the mandatory maximum sentence or remit for re-sentencing in reliance on Muruatetu. The Court noted the Supreme Court's 2021 directions confining the Muruatetu finding to murder charges. Since the offence charged was robbery with violence under section 296(2) of the Penal Code, not murder, the prescribed death penalty was properly imposed.

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Legal principles established

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  • On a second appeal, the Court of Appeal's jurisdiction is confined to matters of law under section 361 of the Criminal Procedure Code and will not interfere with concurrent findings of fact unless based on no evidence or wrong principles.
  • A conviction based exclusively on circumstantial evidence requires that the inculpatory facts be incompatible with the innocence of the accused and incapable of explanation on any other hypothesis than guilt, with no co-existing circumstances weakening the inference.
  • The Muruatetu declaration that mandatory sentences are unconstitutional applies only to murder charges; courts remain entitled to impose the mandatory death penalty for robbery with violence under section 296(2) of the Penal Code.

Court orders

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  1. 1.The appeal is dismissed in its entirety
On appeal from
High Court of Kenya at Nairobi
Not stated in judgment
Jurisdiction invoked
Section 361(1)(a) of the Criminal Procedure Code (second appeal limited to matters of law)

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, "Biketi v Republic (Criminal Appeal 95 of 2021) [2023] KECA 670 (KLR)", Case Analysis (2023). Not stated in judgment (second appeal from Criminal Appeal of the High Court of Kenya at Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/670/eng@2023-06-09

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