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Court of AppealDismissedCriminal Appeal No. 251 of 2012

Buliba Murundu v Republic [2014] KECA 386 (KLR)

Court of Appeal
19 September 2014
1,790 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed a robbery-with-violence conviction and death sentence, ruling that prosecutors need prove only one ingredient of the offence.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Kisumu against the dismissal by the High Court at Kakamega (D. Onyancha & I. Lenaola, JJ) of the appellant's first appeal against his conviction for robbery with violence contrary to Section 296(2) of the Penal Code and the death sentence imposed by the Senior Resident Magistrate's Court, Butere. The complainant, a teacher and shopkeeper, was attacked at about 7:00 p.m. on 1st October 2008 by a man she identified as the appellant, her neighbour, who gagged her, threatened her with a knife and robbed her of Kshs. 6,000 and a mobile phone. Before the Court of Appeal, counsel abandoned the ground based on Article 50(2)(h) of the Constitution of 2010, which could not apply to a trial concluded in 2009, and pursued grounds on the alleged defective charge sheet, insufficiency of the evidence on robbery with violence, and the death sentence. The Court restated that a second appeal is confined to matters of law, respecting concurrent factual findings absent misdirection. It held that the ingredients of robbery with violence are exclusive and that proof of only one suffices; here the appellant was armed with a knife and used violence, and the complainant's recognition of him by voice and by torchlight was firm and reliable. The death sentence was held lawful, and the appeal was dismissed in its entirety on 19th September 2014.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the charge sheet was defective for not being supported by the evidence contrary to Section 214 of the Criminal Procedure Code
  2. 2.Whether the offence of robbery with violence under Section 296(2) of the Penal Code was proved beyond reasonable doubt
  3. 3.Whether the death sentence imposed and upheld was lawful

Key legal issues

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01

Scope of a second appeal

Holding

The Court is confined to matters of law and respects concurrent factual findings unless there is a misdirection on the facts or findings are not based on evidence.

Reasoning

Relying on Section 361(1)(a) of the Criminal Procedure Code and prior decisions of the Court, the panel held that its mandate on second appeal is limited to questions of law. Factual findings by the trial court and confirmed by the first appellate court are binding on the second appellate court absent a demonstrated misdirection or absence of evidential basis.

p. 2
02

Ingredients of robbery with violence

Holding

Robbery with violence under Section 296(2) is committed in any of the three alternative circumstances; proof of one suffices.

Reasoning

Adopting Oluoch v Republic as restated in Daniel Njoroge Mbugua v Republic, the court held that the three circumstances - arming with a dangerous weapon, company with others, and use of personal violence - are exclusive alternatives. The appellant was armed with a knife and used violence, satisfying the offence; the complainant's recognition of him by voice and torchlight was firm and reliable.

p. 3
03

Legality of the death sentence

Holding

The death sentence for robbery with violence is lawful and the first appellate court correctly upheld it.

Reasoning

The court noted that the offence carries a mandatory death sentence on conviction, that the trial court performed its duty on conviction, and that no error of law arose in the first appellate court's confirmation of the sentence. The ground was not addressed by counsel, and the court affirmed the sentence as not illegal in Kenya.

p. 3

Legal principles established

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  • In a second appeal, the Court of Appeal deals only with issues of law; factual findings of the trial court confirmed on first appeal are respected unless shown to be a misdirection or unsupported by evidence.
  • The ingredients of robbery with violence are exclusive and the prosecution need prove only one, not all, of them.

Court orders

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  1. 1.Appeal dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

KA
majority

Wrote the judgment

On appeal from
High Court of Kenya at Kakamega
HCCRA No. 172 of 2009
Jurisdiction invoked
Second appeal under Section 361(1)(a) Criminal Procedure Code

Relief refused

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Quashing of the conviction and sentence

The appeal lacked merit; the ingredients of robbery with violence were proved and the first appellate court properly re-evaluated the evidence

p. 4

Setting aside the death sentence

Counsel did not address the court on the ground and the death sentence is lawful in Kenya

p. 3

Costs

No order as to costs is recorded in the judgment.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot of our findings is that the appeal lacks merit and we accordingly dismiss it.
p. 4Disposition
These ingredients which form the said offence are exclusive and the prosecutions duty is to prove one but not all of them.
p. 3Robbery with violence - ingredients
That is the essence of Section 361 (1) (a) Criminal Procedure Code.
p. 2Second appeal - limitation to questions of law
The death sentence is not illegal in Kenya at all.
p. 3Death sentence

Issues in the judgment

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material

Discrepancy between the coram and the signature block: the coram names AZANGALALA, GATEMBU & KANTAI, JJ.A, but the judgment is signed 'J. W. ONYANGO OTIENO' together with 'K. GATEMBU' and 'S. ole KANTAI'.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Buliba Murundu v Republic [2014] KECA 386 (KLR)", Case Analysis (2014). Criminal Appeal No. 251 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/386/eng@2014-09-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.