Biwott v Republic (Criminal Appeal 263 of 2018) [2023] KECA 1528 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a robbery conviction but freed a man after 13 years because death sentences can never be imposed on children.
What this practically means
#Executive summary
#Key legal issues
#Sufficiency of proof of attempted robbery with violence on a second appeal
The conviction was safe and sound and was upheld
The court, exercising its limited mandate on a second appeal to consider matters of law only, found the identification evidence of five witnesses overwhelming and largely uncontroverted. The identification parade was conducted fairly and in accordance with the rules, and identification was made under electric light with sufficient time and opportunity. No attempt was made to submit against this ground, which therefore failed in its entirety.
Legality of a death sentence imposed on a person who was a minor at the time of the offence
The death sentence was illegal, was set aside and substituted with imprisonment for the period already served
New and compelling evidence (a birth certificate showing the appellant was born on 26th January 1994, admitted on application) established he was 15 at the time of the offence. Section 190 of the Children's Act prohibits a death sentence for a child. The respondent conceded the sentence was illegal, and following JKK v Republic the court held the appellant could not face the death penalty; the sentence was quashed and substituted with the period served after about 13 years of incarceration.
Legal principles established
#- A second appellate court under Section 361 of the Criminal Procedure Code concerns itself only with matters of law and will not interfere with concurrent findings of fact unless based on no evidence, misapprehension of evidence, or wrong principles
- No child may be sentenced to death; a death sentence imposed on a minor is illegal and cannot stand
Court orders
#- 1.Upheld the appellant's conviction for attempted robbery with violence and dismissed the appeal on conviction
- 2.Set aside the sentence of death and substituted it with a sentence of imprisonment for the period already served
- 3.Ordered that the appellant be set at liberty forthwith unless otherwise lawfully held
- On appeal from
- High Court of Kenya (Eldoret)
- Jurisdiction invoked
- Section 361(1)(a) of the Criminal Procedure Code (second appeal, matters of law only)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Biwott v Republic (Criminal Appeal 263 of 2018) [2023] KECA 1528 (KLR)", Case Analysis (2023). Second appeal from Eldoret Chief Magistrate's Court; Criminal Appeal (High Court) dismissed 2nd October 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1528/eng@2023-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.