Wekesa v Republic (Criminal Appeal E111 of 2022) [2023] KECA 792 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a robbery-with-violence appeal, confirming that Muruatetu's death sentence ruling applies only to murder, not robbery.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the first appellate court discharged its duty to re-evaluate the evidence as required by Okeno v Republic and Pandya v Republic
- 2.Whether the circumstances of identification were conducive to a positive identification of the appellant
- 3.Whether the identification parade was properly conducted in accordance with the National Police Standing Orders
- 4.Whether the doctrine of recent possession was supported by the evidence
- 5.Whether the death sentence imposed for robbery with violence was unconstitutional
Key legal issues
#Duty of the first appellate court
The High Court discharged its mandate as a first appellate court by exhaustively scrutinizing and re-evaluating the evidence; no failure of the Okeno duty was established.
The court set out the Pandya formulation of the first appellate court's duty and reviewed the impugned judgment, which expressly recorded that the judges had scrutinized and re-evaluated the prosecution evidence and made findings on witness reliability. On that basis it concluded the judges made up their own minds on the evidence, so the complaint of a failure to re-evaluate failed.
Circumstances of visual identification
The lighting from hurricane lamps and torches, the roughly one-and-a-half-hour duration of the attack, the close proximity between the appellant and the complainants, and the absence of face coverings made the conditions favourable for positive identification.
Applying the Turnbull guidelines on the circumstances in which identification evidence comes to be made, the court weighed the length of observation, distance, lighting and prior interaction. The complainants' testimony was consistent through cross-examination, the parade occurred only three days later, and no effort was made to conceal faces, so the court agreed with both courts below on positive identification.
Proper conduct of identification parades
The identification parade was properly conducted by PW7 in accordance with the National Police Standing Orders; PW2's flawed identification was excluded but the remaining identifications stood.
The court set out the Standing Orders rules for parades and compared PW7's evidence against them: the suspect was informed of the purpose, consented, could call a friend or advocate, chose his position, could change position, and witnesses identified him by touching and were isolated after. PW2's sighting of the appellant before the parade tainted only her identification, and the trial court had already disregarded it.
Constitutionality of the death sentence for robbery with violence
The death sentence for robbery with violence under section 296(2) of the Penal Code is neither excessive nor unconstitutional; Muruatetu applies only to murder.
The court noted Muruatetu II's directions confining Muruatetu I to the mandatory sentence for murder, observed that the appellant abandoned and did not submit on the sentence ground, and considered the protracted violence against the complainants and the mitigation considered by the magistrate. It agreed with the two courts below on sentence.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to questions of law and will not interfere with concurrent findings of fact of the two courts below unless based on no evidence, a misapprehension of the evidence, or wrong principles
- The first appellate court must re-evaluate and analyse the evidence afresh and reach its own conclusions, while bearing in mind that it did not see the witnesses
- Identification parades must be conducted in strict compliance with the rules, fairly and seen to be fair, to eliminate the risk of erroneous identification
- The elements of robbery with violence under section 296(2) of the Penal Code are read disjunctively; one element suffices
- Muruatetu is confined to the mandatory death sentence for murder and does not render mandatory sentences in other offences unconstitutional
Court orders
#- 1.Dismissal of the appeal in its entirety
- 2.Upholding of the concurrent convictions and sentences of the trial court and the High Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Eldoret
- Jurisdiction invoked
- Second appellate jurisdiction under section 361(a) of the Criminal Procedure Code, confined to questions of law
Relief refused
#Quashing of conviction and setting aside of sentence
The court found the conviction safe and the identification reliable
Declaration that the death sentence is unconstitutional
The appellant abandoned the ground on sentence and did not submit on it; Muruatetu II does not extend to robbery with violence
Costs
No costs order appears in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the end we find that the conviction was safe and the sentence was constitutional. As such, we will not interfere with the holding of the two courts below. Consequently, we dismiss this appeal in its entirety.
This is the second appeal and this Court has stated many times before, it will not normally interfere with the concurrent findings of fact by the two courts below unless such findings are based on no evidence, or are based on a misapprehension of the evidence, or the courts below are shown demonstrably to have acted on wrong principles in making the findings.
On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon.
Scrupulous compliance with the rules in the conduct of identification parades is necessary to eliminate any unfairness or risk of erroneous identification.
The elements of the ofience under Section 296 (2) are three in number and they are to be read not conjunctively, but disjunctively. One element is suficient to found an ofience of robbery with violence.
Issues in the judgment
#The judgment variously refers to the charge under section 29(2) of the Penal Code in the opening paragraph and under section 296(2) elsewhere; the opening reference appears to be a typographical error for the robbery with violence provision
The particulars of the first count date the robbery on the night of August 23/24, 1999, while later passages refer to the night of August 24/25, 1999, an internal inconsistency in the judgment's recitation of dates
The chronology of the appellant's arrest is internally inconsistent: the respondent's submissions place the recovery at PW3's arrest on the morning of August 25, 1999, while the appellant's defence and PW3's evidence describe arrest on the morning after the robbery (August 24/25, 1999) when the appellant stated he had been in Kitale since 5.00 pm on August 23, 1999
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wekesa v Republic (Criminal Appeal E111 of 2022) [2023] KECA 792 (KLR)", Case Analysis (2023). Second appeal from Eldoret High Court Criminal Appeal (Mshila and Karanja JJ, judgment delivered January 19, 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/792/eng@2023-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.