Muriuki alias Shoto v Republic (Criminal Appeal 93 of 2017) [2023] KECA 1615 (KLR)

Relying on Karingo v Republic, the court held that a second appeal must be confined to points of law and will not disturb concurrent findings of fact unless based on no evidence. The appellant's grounds on identification, accomplice status of PW8 and sufficiency of evidence were concurrent findings of fact by the magistrate and the High Court, to which the Court of Appeal was enjoined to defer.

The court confirmed from the record that the appellant was represented by counsel before the High Court throughout the hearing, so the claim of non-representation lacked basis. The issue of non-compliance with section 200 CPC was never raised before the High Court, denying the learned Judge the opportunity to determine it; it could not be raised for the first time on second appeal.

The court restated that an accused raising an alibi assumes no burden of proof; it suffices if the alibi introduces a reasonable doubt. The prosecution must displace the alibi by placing the accused at the scene. Although the trial magistrate erred in shifting the burden, the High Court correctly determined the issue, and Charles's evidence placing the appellant in the lorry at Embori farm displaced the alibi defence.

Counsel abandoned the constitutional challenge but urged sentence review. The court affirmed that the Constitution does not outlaw the death sentence, and per Muruatetu only the mandatory aspect is unconstitutional, leaving courts discretion to consider mitigation. Considering the appellant's mitigation and time in custody since arrest (throughout the trial), the court deemed it just to set aside the death sentence and impose 12 years imprisonment from the date of plea.