Were v Republic (Criminal Appeal 254 of 2019) [2024] KECA 1266 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a death-sentence robbery appeal, confirming late alibis fail and new constitutional arguments cannot be raised for the first time.
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 appellant was positively identified
- 2.whether the offence of robbery with violence was proved
- 3.whether the appellant's alibi defence was considered
- 4.whether his right to a fair trial was violated
- 5.whether he was subjected to unlawful pre-trial detention
- 6.whether the death sentence meted upon him was unconstitutional
Key legal issues
#Whether the appellant was positively identified
Recognition evidence of PW1, PW2 and PW3, close family members, positively identified the appellant; the first appellate court independently re-evaluated the evidence
The court stressed that recognition of a known person is more reliable than identification of a stranger, yet mistakes in recognition of close relatives occur. PW1, the appellant's biological father, saw him as he opened the door, and PW2 and PW3 corroborated. Counsel's suggestion of family feud and fabrication found no basis on the record.
Whether robbery with violence was proved
The elements of section 296(2) were proved: offenders armed with dangerous weapons, in company, and using actual violence
Applying Johana Ndungu and Dima Denge, the court held the three elements are disjunctive. The evidence showed the offenders were armed with a firearm, panga and rungus, used violence causing PW1's wrist to be cut and later amputated, and robbed him of cash and a phone.
Whether the alibi defence was considered
The alibi, raised only at the defence hearing, was properly rejected as the prosecution evidence placed the appellant at the scene
An alibi must be raised at the earliest opportunity to allow investigation. Here it was raised late, and PW1, PW2 and PW3 compellingly placed and identified the appellant at the scene, so rejection of the alibi was proper.
Whether constitutional claims (death penalty, fair trial, pre-trial detention) could be raised on second appeal
No - the issues were raised for the first time in the second appeal and could not be entertained
The court will not interfere with decisions of lower courts on matters never placed before them, as those courts had no chance to make findings. Further, the Supreme Court in Mwangi affirmed the lawfulness of death sentences in capital robbery cases and required a proper case on constitutional validity to be filed and escalated.
Legal principles established
#- A second appeal to the Court of Appeal is confined to matters of law and the Court will not interfere with concurrent findings of fact unless based on no evidence
- A new issue raised for the first time in a second appeal will not be entertained where it was not raised before the lower courts, absent explanation
- An alibi must be raised at the earliest opportunity to enable the prosecution to investigate it
- The elements of robbery with violence under section 296(2) are to be read disjunctively; one element suffices
- Courts must warn themselves of the special need for caution before convicting on identification or recognition evidence and examine the circumstances of each identification
Court orders
#- 1.The appeal is dismissed
- 2.The appellant's conviction and sentence are affirmed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Kakamega
- Criminal Appeal No. 262 of 2012 (consolidated with 261 and 263 of 2012)
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal confined to matters of law)
Relief refused
#Quashing of conviction for robbery with violence
Identification by close family members was positive; elements of the offence proved
Declaration that the death sentence is unconstitutional
Issue raised for the first time on second appeal; Supreme Court affirmed lawfulness of death sentences in capital robbery cases
Relief for alleged fair-trial violations and unlawful pre-trial detention
These issues were never raised before the trial court or the High Court
Costs
No costs order 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.
Accordingly, this appeal is without merit. We hereby dismiss it and afirm the appellant’s conviction and sentence.
This being a second appeal, this Court’s jurisdiction is limited to consideration of matters of law only, as stipulated under Section 361 of the Criminal Procedure Code.
…we reiterate that there ought to be a proper case filed, presented and fully argued before the High Court and escalated through the appropriate channels on the constitutional validity or otherwise of minimum sentences or mandatory sentences other than the ofience of murder.
recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.
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 case number of the present appeal before the Court of Appeal is not stated in the judgment
Second appellate issue list contains a duplicated letter '(d)' in the appellant's framing of issues
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Were v Republic (Criminal Appeal 254 of 2019) [2024] KECA 1266 (KLR)", Case Analysis (2024). Criminal Appeal (unnumbered in text; appeal from Kakamega High Court Criminal Appeal No. 262 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1266/eng@2024-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.