Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCriminal Appeal (Court of Appeal, Nairobi)· [2024] KECA 483 (KLR)

Longole & another v Republic (Criminal Appeal 5 of 2016) [2024] KECA 483 (KLR)

Court of Appeal of Kenya
9 May 2024
FOF. OchiengLAL. AchodeWKW. Korir
4,517 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal upheld two robbery convictions but scrapped the death sentence, reinstating 25 years because judges must have sentencing discretion.

What this practically means

#

Executive summary

#
This is a second appeal to the Court of Appeal by Amos Longole and Patrick Kipkoech Lelgo against the High Court's dismissal of their first appeal. Both were convicted of robbery with violence under Sections 295 and 296(2) of the Penal Code after the 2011 armed robbery of a complainant in Londiani, sentenced to 25 years by the trial magistrate, and their sentences enhanced to death by the High Court. On second appeal, the court reiterated that it considers only matters of law under Section 361(1) of the Criminal Procedure Code. It declined to engage the ground that the charge was defective, which was unelaborated. It found the ingredients of robbery with violence proved on undisputed facts, and held that the identification was by recognition, not fleeting visual identification, so the absence of an identification parade was not fatal. The challenge to the sentence enhancement failed because the DPP had filed and served a Notice of Enhancement of Sentence before the first appeal hearing, with the appellants represented. On the constitutional challenge to the death sentence, the court held that the death penalty under Section 296(2) is not unconstitutional per se, but its mandatory nature is undesirable, citing local sentencing jurisprudence and the South African decision in S v Toms. The court upheld the convictions, set aside the death sentence, reinstated the original 25-year imprisonment term, and directed that the sentences run from the time of incarceration. The appeal was thus allowed on sentence only.

Key legal issues

#
01

Whether the ingredients of robbery with violence were proved

Holding

The court was satisfied the ingredients under Section 296(2) read with Section 295 of the Penal Code - dangerous weapon, company of another, and use of violence - were proved on undisputed facts.

Reasoning

The attack involved two assailants armed with a panga, a dangerous weapon; the complainant was wounded with the machete during the robbery, as confirmed by the clinical officer's P3 evidence; and property (a phone and cash) was stolen. The ingredients were therefore proved, justifying upholding the convictions.

p. 5
02

Whether the identification was reliable absent an identification parade

Holding

Identification by recognition is more reliable than identification of a stranger; failure to hold a parade was not fatal where witnesses knew the appellants.

Reasoning

PW2 and PW3 saw the assailants in daylight from 20 metres, described their clothes and weapons, and knew them beforehand. This was recognition, not fleeting visual identification, so a parade would have been superfluous. The identification was clear, positive and reliable.

p. 6
03

Whether the enhancement of sentence without warning was improper

Holding

The enhancement was proper because the DPP filed a Notice of Enhancement of Sentence which was brought to the appellants' attention before the hearing, and they were legally represented.

Reasoning

The first appellate court's record showed the Notice of Enhancement was filed on 3rd October 2015 under Section 354(3)(ii) and conveyed to the appellants, who chose to proceed with counsel. The requirement of awareness was therefore met and the superior court could not be faulted.

p. 7
04

Whether the mandatory death sentence was unconstitutional

Holding

The death sentence is not unconstitutional per se but its mandatory nature is undesirable; in the circumstances, 25 years imprisonment was appropriate and the appeal succeeded on sentence only.

Reasoning

The High Court imposed death under the then-prevailing jurisprudence of mandatory sentencing. Following current jurisprudence including Joshua Gichuki Mwangi and the reasoning in S v Toms that mandatory sentences reduce the court to a rubberstamp, the court reinstated the original 25-year term.

p. 8

Legal principles established

#
  • On a second appeal under Section 361(1) of the Criminal Procedure Code, the Court considers only matters of law and will not interfere with findings of fact unless the courts below considered matters they ought not to have, failed to consider matters they should have, or were plainly wrong.
  • Failure to conduct an identification parade is not fatal to a prosecution case where the identifying witnesses knew the accused before the incident; identification by recognition suffices.
  • Before the High Court enhances a sentence on first appeal, the appellant must be made aware of the possibility of enhancement, whether by a served notice of enhancement or a warning by the court.
  • The death penalty under Section 296(2) of the Penal Code is not unconstitutional per se, but its mandatory nature is undesirable; sentencing discretion must be preserved.

Court orders

#
  1. 1.Each appellant's conviction is upheld
  2. 2.The death sentence is set aside and the original sentence of 25 years imprisonment is reinstated
  3. 3.The sentences shall run from the time of incarceration

Authorities

#

Legislation

  • Penal CodeSections 295, 296(2), 20
  • Criminal Procedure CodeSections 354(3)(ii), 361(1), 364(2)
  • Evidence ActSection 309
  • Constitution of KenyaArticles 71(1), 70(a), 77, 26(3), 50(1)

Cases cited (14)

  • Abdullah bin Wendo vs Republic
    (1953) 20 EACA 166
  • George Morara Achoki v Republic
    [2014] eKLR
  • Dennis Okembo Manani v Republic
    [2022] eKLR
  • Karani v R
    (2010) 1 KLR 73
  • John Kariuki Gikonyo vs Republic
    [2019] eKLR
  • Dracaku s/o Afia vs R
    [1963] E.A. 363
  • Rotich Kipsongo v Republic
    [2008] eKLR
  • Kenga Chea Thoya Vs Republic
    Criminal Appeal No. 375 of 2006 (Unreported)
  • Anjononi v Republic
    [1980] KLR 59
  • J.J.W. v Republic
    [2013] eKLR
  • Joshua Gichuki Mwangi v Republic
    Criminal Appeal No. 84 of 2015
  • Athanus Lijodi v Republic
    [2021] eKLR
  • Evans Wanjala Wanyonyi v Republic
    [2019] eKLR
  • S v Toms
    1990 (2) SA 802 (A)
On appeal from
High Court of Kenya
Jurisdiction invoked
Second appeal under Section 361(1) of the Criminal Procedure Code

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Longole & another v Republic (Criminal Appeal 5 of 2016) [2024] KECA 483 (KLR)", Case Analysis (2024). Criminal Appeal (Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/483/eng@2024-05-09

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