Thabit Jamaldin Yahya v Republic

evidence; that the conviction was based on hearsay evidence; that his defence was improperly rejected and that death sentence was harsh and excessive. 4. In dismissing the appeal, this Court found that there was consistency in the evidence of the witnesses to the eect that the appellant was identied as the assailant on the material day; that the oence was proved to the required standard and that there was no reason to disturb the sentence. Dissatised, and intending to appeal to the Supreme Court, the applicant lodged a notice of appeal in this Court on March 18, 2022 following which the applicant brought the present application for certication that the intended appeal raises matters of general public importance. 5. The application is based on the grounds that a matter of general public importance is involved in that the applicant was convicted on the basis of a single identifying witness in challenging circumstances and in the absence of independent corroborative evidence; that suspicion should not be the basis of conviction regardless of whether the oence is terrorism related; that the Supreme Court needs to pronounce itself on the equal application and treatment of accused persons under the law; that the applicant is condemned to suer death in the absence of aggravating circumstances and without exercise of discretion expressed in the Francis Muruatetu case; and that there is a clash of statutes in that this Court re-armed the death sentence imposed by the trial court despite the same having been commuted to life imprisonment in the year 2016 by the President of the Republic of Kenya. 6. Urging the application before us on behalf of the applicant, learned counsel Mr. Chacha Mwita referred to the applicant’s supporting adavit sworn on March 17, 2022 and submitted that this matter fulls the criteria for determining whether a matter is one of general public importance as set out in the case of Kenya Civil Aviation Authority v African Commuter Services Ltd & another [2018] eKLR. 7. It was submitted, on the strength of the Supreme Court of Kenya decision in R vs. Ahmad Abolfathi Mohammed & Another (2018) eKLR, that matters of terrorism are matters of grave concern and of public importance; that the present matter is also of general public importance because unlike accused persons who are charged with less serious oences before the subordinate courts who have the opportunity to pursue a second appeal and also a third appeal to the Supreme Court, accused persons like the applicant are disadvantaged and discriminated upon as they can only appeal to this Court despite facing the more serious charge for the oence of murder with prospect of death sentence. It was urged that persons charged with the oence of murder should, as a matter of right be entitled to appeal to the Supreme Court so as to aord them equal treatment under the law in accordance with Articles 27 and 50 of the Constitution. 8. Counsel reiterated that leave to appeal should be granted in order for the Supreme Court to resolve the conict between the judgment of this Court arming the death sentence by the trial court and the fact that on October 24, 2016, the President of the Republic of Kenya commuted the death sentence imposed by the High Court under the Power of Mercy Act, No. 21 of 2021 enacted pursuant to Article 133 of the Constitution. 9. In opposition to the application, learned counsel Mr. Jami Yamina of the Oce of Director of Public Prosecution for the respondent relied on Grounds of Opposition dated April 6, 2022 and respondent’s written submissions of the same date which he orally highlighted in urging that the applicant failed to demonstrate that the intended appeal to the Supreme Court of Kenya raises matters of general public importance; that the issue of identication of the perpetrator of the oence arose before the trial court and before this Court and was addressed in accordance with settled legal principles and there is no uncertainty in the law regarding identication. 10. As regard the contention that this Court armed death sentence meted out by the trial court despite the same having been commuted to a life sentence, counsel submitted that this issue did not arise in https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1057/eng@2022-10-07 2

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the appeal; that despite the fact that it was within the knowledge of the appellant that his sentence had been commuted, he did not raise the matter or bring it to the attention of this Court; that in the result the applicant would be inviting the Supreme Court to deal with the issue in its original jurisdiction. 11. Regarding the contention that the appellant, and persons charged with murder before the High Court are discriminated upon and not accorded equal treatment under the law relative to persons charged before the subordinate courts who have the opportunity to present a second and possibly a third appeal, counsel submitted that the matter is settled by the Supreme Court in Muruatetu II [2021] eKLR; that although the applicant would have beneted from that decision, he did not seek resentencing but opted to appeal to this Court whereupon this Court properly reviewed and reevaluated the evidence before rendering the impugned judgment. 12. Counsel concluded by urging that there is no clear point of law raised by the applicant requiring determination by the Supreme Court and that to allow the application would open a oodgate of applications to the Supreme Court and that the criteria for certication as set out in Kenya Civil Aviation Authority v African Commuter Services Ltd & another (above) has not been met. 13. In his brief reply, Mr. Mwita stated that the issue of identication is not the main issue the applicant intends to pursue before the Supreme Court but rather the issue of reinstatement of the death sentence. Referring to Section 332 of the Criminal Procedure Code relating to the requirement of a report to be sent to the President after the sentence of death is pronounced, counsel submitted that the respondent should have brought the information on commutation to the Court. Counsel also reiterated that as the matter touches on terrorism, it is a matter of general public importance. 14. We have considered the application and the rival submissions. The Supreme Court of Kenya set out the standard for certication of a matter as one of general public importance in the case of Hermanus Phillipus Steyn v Giovanni Gnecchi Ruscone [2013] eKLR where that Court expressed that: “ ….”a matter of general public importance warranting the exercise of the appellate jurisdiction would be a matter of law or fact, provided only that: its impacts and consequences are substantial, broad-based, transcending the litigation-interests of the parties, and bearing upon the public interest. As the categories constituting the public interest are not close, the burden falls on the intending appellant to demonstrate that the matter in question carries specic elements of real public interest and concern.” 15. Expounding further on the principles for determining whether a matter is one of general public importance, the Supreme Court went on to state in that case that: “ i. For a case to be certied as one involving a matter of general public importance, the intending appellant must satisfy the Court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case, and has a signicant bearing on the public interest; ii. where the matter in respect of which certication is sought raises a point of law, the intending appellant must demonstrate that such a point is a substantial one, the determination of which will have a signicant bearing on the public interest; ii. such question or questions of law must have arisen in the Court or Courts below, and must have been the subject of judicial determination; https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1057/eng@2022-10-07 3

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iii. where the application for certication has been occasioned by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court may either resolve the uncertainty, as it may determine, or refer the matter to the Court of Appeal for its determination; iv. mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts, is not a proper basis for granting certication for an appeal to the Supreme Court; the matter to be certied for a nal appeal in the Supreme Court, must still fall within the terms of Article 163(4) (b) of the Constitution; v. the intending applicant has an obligation to identify and concisely set out the specic elements of general public importance which he or she attributes to the matter for which certication is sought; vi. determination of facts in contests between parties are not, by themselves, a basis for granting certication for an appeal before the Supreme Court.” 16. See also a re-armation of those principles in Town Council of Awendo v Nelson Oduor Onyango & 13 others [2015] eKLR and also in Kenya Civil Aviation Authority v African Commuter Services Ltd & another (above) on which counsel for both parties relied. 17. With those principles in mind, does this matter meet the criterion? The rst issue which the applicant contends merits consideration by the Supreme Court as one of general public importance is the question whether his identication as the assailant was free from error. The law on the duty of a court when addressing the question of identication and the need for the court to approach the question of identication with caution when there is a dispute in that regard is in our view settled. See for instance the long-standing case of Abdallah Bin Wendo & another v Republic [1953] 20 EACA 166; Roria v Republic [1967] E A 583; Maitanyi v Republic [1986] eKLR; Republic v Turnbull & others [1976] 3 All E R 549. All those cases consistently stress, without any contradiction, the need for courts to proceed with the greatest care when considering evidence of identication. We are not persuaded that it is a matter on which the Supreme Court should be troubled. 18. The next issue which the applicant states is one of general public importance is the question whether the appellant, and persons charged with murder before the High Court are discriminated upon and not accorded equal treatment under the law relative to persons charged with lesser oences before the subordinate courts who have the opportunity to present a second and possibly a third appeal. This matter was neither raised before the trial court nor was it raised before this Court. The applicant’s claim in that regard, that there is violation of Articles 27 of the Constitution which provides that every person is equal before the law and has the right to equal protection and equal benet of the law and also Article 50 was not raised by the applicant in the High Court or in this Court. To the extent that that question did not arise in the High Court or in this Court and to the extent that it has not been the subject of judicial determination by either of the two courts, it is not, in our view, a matter in respect of which certication can be granted. 19. Lastly, there is the question that this Court armed and reinstated the death sentence despite the same having been commuted by the President of the Republic of Kenya. In that regard, it is instructive that in his appeal before this Court, the applicant, in addition to challenging the conviction also challenged the sentence and asserted that the death sentence that was meted out to him was severe and excessive and that his mitigation was not considered. At no time did the applicant state or mention that the death sentence had been commuted. It is somewhat intriguing that the applicant prosecuted his appeal https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1057/eng@2022-10-07 4

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before this Court on the basis that the death sentence meted out was subsisting with full knowledge, and without any mention of the commutation, only to disclose, in the course of the hearing of this application, that it was commuted on 24th October 2016. 20. All in all, the application is devoid of merit and is accordingly dismissed with no orders as to costs. DATED AND DELIVERED AT MOMBASA THIS 7TH DAY OF OCTOBER 2022. S. GATEMBU KAIRU, FCIArb JUDGE OF APPEAL ................................................. P. NYAMWEYA JUDGE OF APPEAL ................................................. J. LESIIT JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1057/eng@2022-10-07 5

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