Alex Wanjala Murefu & 1 other v Republic
The bottom line
#Kenya's Court of Appeal upheld two death sentences for robbery with violence, confirming that second appeals only question points of law, not facts.
What this practically means
#Executive summary
#Key legal issues
#Identification of the appellants and necessity of an identification parade
The identification evidence was safe and reliable; an identification parade was unnecessary in the circumstances.
The complainant spent an extended period with the appellants, first at a lit stage, then during a prolonged struggle, and finally identified them in hospital the following day. The trial magistrate properly directed himself on the dangers of night identification, and the High Court independently re-evaluated the evidence. On a second appeal the Court cannot fault these concurrent findings as a matter of law.
Failure to call a crucial witness (Muchuuzi)
No adverse inference arises; the chain of events was complete without that witness.
The prosecution established an unbroken chain from the ferrying of the appellants, through the robbery, the accident with the stolen motorcycle, the appellants' hospital admission, to their arrest. Calling Muchuuzi or mounting an identification parade would have added no value because the evidence standing was watertight and the offence proved to the required standard.
Legality of the death sentence
The death sentence for robbery with violence is legal and constitutional; no basis existed to interfere.
Relying on its earlier decision in Joseph Njuguna Mwaura and two others vs. R, the Court held the death sentence lawful. The sentence having been imposed under section 296(2) of the Penal Code, and the Court finding no ground to interfere, the sentence stands.
Right to legal representation at State expense
The right to State-funded counsel under Article 50(2)(h) applies only where substantial injustice would otherwise result, and did not apply to trials concluded before the 2010 Constitution; the appellants' fair-trial right was not violated.
The trial began and ended before promulgation of the 2010 Constitution, when there was no statutory requirement for representation at State expense. The record showed no request by the appellants for an advocate that was refused. Article 50(2)(h) was discussed but, on these facts, the claim failed.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to matters of law and will not interfere with concurrent findings of fact of the two courts below unless those findings are based on no evidence, a misapprehension of the evidence, or are plainly wrong.
- A first appellate court is obliged to reconsider and re-evaluate the evidence and draw its own conclusions.
- Under the Constitution of Kenya, 2010, persons accused of capital offences have the right to legal representation at State expense where substantial injustice would otherwise result; this requirement did not apply to trials concluded before promulgation of the 2010 Constitution.
Court orders
#- 1.The appellants' appeals against conviction and sentence are dismissed
- On appeal from
- High Court of Kenya at Bungoma
- HCCR.A. No. 71 of 2009
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal limited to matters of law)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alex Wanjala Murefu & 1 other v Republic", Case Analysis (2015). Criminal Appeal No. 697 of 2010 (R). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/98/eng@2015-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.