Collins Kisanda Oduor v Republic [2014] KECA 45 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that blood-group evidence, DNA testing aside, can convict someone of attempted robbery with violence, and that such offences carry the death sentence.
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 first appellate court failed to revisit, reanalyse and reevaluate the evidence afresh as required by law
- 2.Whether the charge sheet was defective
- 3.Whether the conviction could stand on circumstantial evidence, particularly blood group evidence without DNA testing
- 4.Whether the death sentence under Section 297(2) of the Penal Code was lawful given Section 389 on attempts
Key legal issues
#Sufficiency of circumstantial evidence, including blood group evidence without DNA testing
The blood group evidence, the trail of blood, the blood-stained coat and sword, and the absence of any explanation from the appellant under Section 111 of the Evidence Act sustained the conviction
No direct witness identified the attackers, so the case rested on circumstantial evidence. The trail of the appellant's blood led from the deceased; his coat and a nearby sword bore blood of the deceased's group O. These were matters within his special knowledge under Section 111 of the Evidence Act and he offered no explanation, leaving guilt as the only reasonable inference. Lack of DNA testing did not break the chain.
Legality of the death sentence for attempted robbery with violence under Section 297(2)
The sentence is lawful; Section 389 applies only where no other punishment is provided, and Section 297(2) prescribes a specific penalty
Section 389's exception for death-eligible attempt offences does not apply to attempted robbery with violence because Parliament deliberately made it an aggravated offence with its own specific penalty, as with robbery with violence under Section 296(2). The earlier contrary decision in Evanson Muiruri Gichane was per incuriam for failing to appreciate this. The court endorsed Charles Mulandi Mbula and Mulinge Maswili.
Duty of the first appellate court to reevaluate evidence
The first appellate court did revisit, analyse and evaluate the evidence; no basis existed to interfere with the concurrent findings
The court found the High Court had discharged its duty of fresh evaluation and given allowance for the trial court's advantage of seeing witnesses. Discrepancies such as the 50 versus 150 metres distance were matters of fact for the lower courts, with which the second appellate court must be loyal absent misapprehension or perversity.
Legal principles established
#- Before a conviction is based on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than guilt
- The death sentence under Section 297(2) of the Penal Code for attempted robbery with violence is lawful; Section 389 does not apply where a specific penalty is provided
- A second appellate court under Section 361(1)(a) of the Criminal Procedure Code confines itself to matters of law and will not disturb concurrent findings of fact unless the lower courts misapprehended the facts or their judgments were perverse
Court orders
#- 1.Appeal dismissed both on conviction and on sentence; conviction and death sentence upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisii
- H.C.CR.A. No. 18 of 2008
- Jurisdiction invoked
- Section 361(1)(a) of the Criminal Procedure Code (second appeal on matters of law only)
Relief refused
#Setting aside the conviction
Circumstantial evidence was water-tight and pointed inexorably to the appellant's guilt
Substitution of the death sentence with a term not exceeding seven years under Section 389 of the Penal Code
Section 297(2) provides a specific penalty for attempted robbery with violence, ousting the general provision in Section 389
Costs
No costs order made (criminal appeal)
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.
before a conviction is based on circumstantial evidence, the court must be satisfied beyond reasonable doubt that the inculpatory facts are incompatible with the innocence of the accused and incapable of any other explanation or any other hypothesis than that of the accused's guilt
Section 297 (2) of the Penal Code provides for a specific penalty for attempted robbery with violence, and is thus ousted from the remit of Section 389 of the Penal Code.
The net result is that this appeal lacks merit and is dismissed both on conviction and on sentence.
Issues in the judgment
#The court expressly declares the decision in Evanson Muiruri Gichane per incuriam, while counsel had relied on it; the treatment of this case in citationTreatment is recorded as cited_by_party since the court's discussion was not a formal overruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Collins Kisanda Oduor v Republic [2014] KECA 45 (KLR)", Case Analysis (2014). Criminal Appeal No. 85 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/45/eng@2014-06-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.