Lowayakaru Ejuroto Elimlim v Republic
The bottom line
#Kenya's Court of Appeal upheld a robbery conviction based on identification and DNA evidence, but ruled only one death sentence can stand when multiple capital counts are involved.
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 visual identification and identification parade evidence was sufficient and reliable
- 2.Whether the DNA profile evidence and the presence of the appellant's blood at the scene proved his presence and participation
- 3.Whether the appellant's conviction on all four counts was safe
- 4.Whether the sentence imposed (concurrent death sentences and the order placing the count 4 sentence in abeyance) was proper
Key legal issues
#Sufficiency and reliability of identification evidence on second appeal
Circumstances favoured correct identification: broad daylight, unmasked assailant in full view for more than a moment, close proximity, one witness knew the appellant, and identification parades held within fifteen days.
Applying the Turnbull test, the court found the robbery occurred in broad daylight on a public road; the appellant stood in full view while demanding and receiving money, his face was uncovered, one witness knew him previously, and several witnesses picked him in parades held within fifteen days. Disagreement on the number of parade members was not fundamental.
Evidential value of DNA profile and blood at the scene
DNA matching confirmed identification; the unexplained presence of the appellant's blood at the scene raised a rebuttable presumption of fact of participation which the appellant failed to rebut.
The appellant was shot at by the deceased and bled at the scene; police lifted blood samples matching his DNA profile. Under section 111 of the Evidence Act he owed a duty to explain how his blood came to be at the scene. He merely denied presence, offering no rebuttal, so the presumption stood unrebutted.
Propriety of concurrent death sentences
Concurrent death sentences are anomalous and impracticable; an accused convicted of multiple capital offences in one trial should be sentenced in one count only.
The court noted the trial magistrate imposed death in each of the first three counts and five years in count four, all concurrent, and the superior court placed the count 4 sentence in abeyance. The court found concurrent death sentences impracticable since a person cannot be hanged more than once, and set aside the death sentences in counts 2 and 3 and the concurrency order.
Legal principles established
#- On a second appeal only issues of law can be raised.
- Where an accused is convicted of more than one capital offence in the same trial, he should be sentenced in one count only, as a person cannot be hanged more than once; concurrent death sentences are anomalous and impracticable.
- The presence of an accused's blood at the scene, unexplained, raises a rebuttable presumption of fact of his presence and participation, engaging the duty to explain under section 111 of the Evidence Act.
- The test in R v Turnbull governs the correctness of identification evidence and has been accepted without variation by Kenyan courts.
Court orders
#- 1.Appeal against conviction dismissed
- 2.Sentence of death in the 2nd and 3rd counts set aside
- 3.Order directing that sentences run concurrently set aside
- 4.Order accordingly
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kitale
- HC Criminal Appeal No 71 of 2004
- Jurisdiction invoked
- Second appeal under section 361 of the Criminal Procedure Code - issues of law only
Relief refused
#Appeal against conviction on all four counts
Identification was correct and confirmed by DNA profile evidence; overwhelming evidence of commission of the offences
Appeal on sentence
No appeal on sentence lies on second appeal under section 361(1) of the Criminal Procedure Code, though the court varied the anomalous concurrent death sentences
Costs
No costs order recorded 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.
On the basis of the evidence on record, which both courts below analysed and accepted, we have no basis for holding that the identification of the appellant was mistakeable.
The presence of his blood at the scene places the appellant at the scene and raises a rebuttable presumption of fact that the appellant was one of the two people who attacked the deceased and his party.
That being our view of the matter, we set aside the sentence of death in the 2nd and 3rd counts and also the order directing that sentences run concurrently. Order accordingly.
We have no basis for interfering with his conviction and, accordingly, we dismiss his appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lowayakaru Ejuroto Elimlim v Republic", Case Analysis (2008). Criminal Appeal 219 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/347/eng@2008-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.