Salim & another v Republic (Criminal Appeal 251 of 2018) [2024] KECA 153 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a robbery-with-violence conviction but replaced the mandatory death sentence with 30 years' imprisonment, reaffirming judges' sentencing discretion.
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 offence of robbery with violence was proved to the required standard
- 2.Whether the appellants were properly identified
- 3.Whether the sentence of death was harsh and unconstitutional
Key legal issues
#Ingredients of robbery with violence under Section 296(2) of the Penal Code
The ingredients are disjunctive: being armed with a dangerous weapon, being in company with one or more persons, or using violence at or immediately after the robbery. Proof of any one suffices. Here the offenders were more than one, armed with a knife, and used violence.
The court adopted the formulation from John Kariuki Gikonyo v Republic, explaining that each ingredient is to be treated disjunctively from the others. It was sufficient that the offender was in company with one or more persons at the time of the robbery; if perpetrators exceeded one, they need not be armed or use violence. In this case the offenders were more than one, armed with a knife, and physically molested the complainant.
Positive identification of the appellants at night
The complainant and PW2 positively identified the appellants; the encounter was prolonged, in close physical proximity, and illuminated by security lights, with the 1st appellant's conduct in leading police to the knife corroborating the complainant's evidence.
The incident lasted a considerable length of time and was not fleeting. The offenders ransacked the complainant's clothes and raped her in turns, placing them in literal physical contact with her, with security lights nearby. PW2 spent over ten minutes with the offenders. The 1st appellant led police to recovery of the knife, and a bloodstained jacket was recovered from the 2nd appellant's house.
Constitutionality of the mandatory death sentence for robbery with violence
Following Muruatetu and Kittiny, the mandatory death sentence under Section 296(2) is unconstitutional; the death sentence is a discretionary maximum punishment. The death sentence imposed was set aside and substituted with 30 years' imprisonment.
Both the trial and first appellate decisions predated Muruatetu. The Supreme Court declared the mandatory death penalty for murder unconstitutional, and Kittiny held that holding applies mutatis mutandis to Sections 296(2) and 297(2) of the Penal Code. Mandatory sentences deprive courts of discretion to impose a sentence appropriate to the circumstances. The High Court's contrary finding relying on Joseph Njuguna Mwaura could not be sustained.
Scope of the court's mandate on second appeal
Under Section 361 of the Criminal Procedure Code, the Court on second appeal deals only with matters of law and will not interfere with concurrent factual findings unless the decision was plainly wrong or relevant matters were ignored or wrongly considered.
The court framed its limited mandate at the outset, acknowledging that it ought not to interfere with decisions of the courts below on matters of fact unless those courts considered matters they ought not to have, failed to consider matters they ought to have, or arrived at a plainly wrong decision. This framed its review of the identification and sufficiency-of-evidence grounds as questions of law.
Legal principles established
#- On a second appeal, the Court of Appeal considers only matters of law and will not disturb concurrent findings of fact unless the courts below considered matters they ought not to have, failed to consider matters they ought to have, or were plainly wrong.
- The ingredients of robbery with violence under Section 296(2) of the Penal Code are disjunctive; proof of any one ingredient is sufficient to sustain a conviction.
- Mandatory sentences are unconstitutional and must be construed as maximum penalties, leaving the sentencing court discretion to tailor the sentence to the circumstances of the case.
Court orders
#- 1.Appeal against conviction dismissed
- 2.Death sentence set aside and substituted with a sentence of 30 years' imprisonment for robbery with violence
- 3.The 30-year sentence to run from 1st February 2012 and to run concurrently with the 15-year sentence for gang rape
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal on matters of law)
Relief refused
#Appeal against conviction (grounds on identification, insufficient evidence, recoveries and fair trial)
Convictions were founded on solid, corroborated evidence including close-proximity identification and recovery of the knife and bloodstained jacket
Costs
No costs order was made 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.
Proof of any one of the ingredients of robbery with violence is enough to sustain a conviction.
In the circumstances, we are persuaded that the trial court and the High Court had a sound factual basis for making a finding that the appellants were positively identified.
Thus, the sentence of death under section 296 (2) and 297(2) of the Penal Code is a discretionary maximum punishment.
Accordingly, we set aside the death sentence and substitute it with a sentence of 30 years’ imprisonment.
The said sentence shall run concurrently with the sentence of 15 years’ imprisonment, which was in respect of the ofiences of gang rape.
Issues in the judgment
#The judgment repeatedly renders the word 'offence' as 'ofience' and similar typographical errors appear in quoted evidence; this is a transcription artifact in the copy provided.
The judgment does not state the case number of the appeal or the High Court appeal number, and the appeal record lacks coram details beyond the signature block.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Salim & another v Republic (Criminal Appeal 251 of 2018) [2024] KECA 153 (KLR)", Case Analysis (2024). Criminal Appeal (not separately numbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/153/eng@2024-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.