Lelemusi v Republic (Criminal Appeal 48 of 2018) [2025] KECA 2175 (KLR)
The bottom line
#Kenya's Court of Appeal quashed an attempted robbery conviction built on suspicion but upheld a seven-year gun possession sentence, meaning the appellant walks free.
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 charge sheet as crafted was defective
- 2.Whether the ingredients of the offence of attempted robbery with violence were proved to the required standard
- 3.Whether the appellant was prejudiced by the failure to suspend the sentence meted out in Count II
Key legal issues
#Whether the charge sheet on Count I was defective
The Court declined to determine the issue because it was raised for the first time on second appeal, having not been raised in the petition of appeal against the trial court's judgment nor addressed at trial or in the High Court.
The Court held that a party cannot fault the two courts below for failing to deal with an issue that was never raised before them. Since the defect alleged did not arise at the High Court, the Court was not prepared to entertain it on second appeal, which is restricted to matters of law under section 361(1)(a) of the Criminal Procedure Code.
Whether the ingredients of attempted robbery with violence were proved
The conviction on Count I could not stand. The facts showed the appellant did not steal or attempt to steal anything and made no demands; the attempted robbery charge rested on mere suspicion arising from his possession of an unlicensed firearm.
From the undisputed facts, the appellant entered the shop intending to deposit money, was accosted on his return, felt threatened, and fired into the air to scare. All witnesses agreed he did not steal or demand anything. Even PW1 admitted she was cut while trying to take the sword. The charge under section 295 as read with 297(2) was misplaced; the correct provision would have been section 295(1) of the Penal Code.
Whether failure to suspend the seven-year sentence in Count II prejudiced the appellant
The trial court erred in failing to hold the lesser sentence in abeyance, but the error caused no miscarriage of justice because the death sentence was the ultimate punishment; now that the Count I conviction has been set aside, the seven-year term takes effect and, having been delivered 8 years earlier, the appellant may be set free unless otherwise lawfully held.
Relying on Douglas Sila Mutuku & 2 Others v Republic, the Court restated the settled practice that it is inappropriate and impracticable to sentence a person to suffer death more than once, and lesser sentences should be held in abeyance only so that they take effect if the death sentence is set aside. With the reversal on Count I, the grievance became moot and the lesser sentence takes effect.
Legal principles established
#- On a second appeal the Court of Appeal is confined to points of law and will not interfere with concurrent findings of fact unless those findings are based on no evidence, a misapprehension of the evidence, or wrong principles.
- It is inappropriate and impracticable to sentence a person to suffer death more than once; where a death sentence is imposed on one count, sentences on other counts must be held in abeyance and take effect only if the death sentence is set aside on appeal.
- Where the evidence shows that an accused did not steal or attempt to steal anything and made no demands, a charge of attempted robbery is misplaced and cannot stand.
- The remedy where a death sentence is later overturned is that the lesser sentence held in abeyance then takes effect; failure to hold the lesser punishment in abeyance where the death penalty was ultimate does not occasion a miscarriage of justice.
Court orders
#- 1.The conviction on Count I of attempted robbery with violence is set aside, the claim of attempted robbery having been found to be based on mere suspicion and unable to stand
- 2.The seven-year imprisonment sentence in Count II (illegal possession of a firearm) stands, with the court noting that judgment having been delivered 8 years ago the appellant may be set free unless otherwise lawfully held
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Second appeal to the Court of Appeal under section 361(1)(a) of the Criminal Procedure Code, confined to matters of law
Relief refused
#Interference with the conviction and seven-year sentence on Count II (illegal possession of a firearm), which was entered on a plea of guilty
The appellant pleaded guilty to being in unlawful possession of the firearm; the court found he had no business carrying an unlicensed gun and was properly convicted and sentenced
Costs
No costs order was made; this is a criminal appeal and the judgment is silent on costs.
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.
A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence.
Both times, he did not steal or attempt to steal, nor demand anything. These simple facts are not in dispute, and we therefore arrive at the conclusion that the claim of attempted robbery was misplaced, based on mere suspicion and cannot stand.
it is now a settled practice that it is inappropriate and clearly impracticable to sentence a person to suffer death more than once. Both courts below ought to have ordered the sentences on the other counts to be held in abeyance and only be given effect if the first death sentence is, for whatever reason set aside on appeal.
Based on our findings on Count 1, should the appellant have served the seven-year jail term in Count II, judgment having been delivered 8 years ago, he may be set free unless otherwise lawfully held.
Issues in the judgment
#The judgment sets out the Court's considered issues in paragraph 25 but does not set out any numbered final orders or an express quashing order for Count I; the setting aside of the Count I conviction must be inferred from the holding that the charge 'cannot stand' and the concluding passage, creating some uncertainty as to the precise operative orders.
Internal tension: the Court in paragraph 30 states the appellant 'ought to have been charged under section 295(1)' yet paragraph 31 concludes the attempted robbery claim 'cannot stand' outright, leaving unclear whether the conviction on Count I was quashed or substituted.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lelemusi v Republic (Criminal Appeal 48 of 2018) [2025] KECA 2175 (KLR)", Case Analysis (2025). Criminal Appeal (as per supplementary memorandum of appeal dated 8th February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2175/eng@2025-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.