Idd Mohammed Sairim John Lemashon Kisiko v Republic
The bottom line
#Kenya's Court of Appeal confirmed that death is the lawful sentence for attempted robbery with violence and upheld convictions based on identification parades.
What this practically means
#Executive summary
#Key legal issues
#Propriety of the identification of the appellants
The identification parades in respect of both appellants were fairly conducted and were correctly accepted in evidence by the two courts below
The robbery occurred in broad daylight and eyewitnesses PW4, PW11 and PW13 identified the appellants. The parades complied with Police Force Standing Orders, including placement among at least eight persons of similar appearance. Complaints about lack of prior description, the 1st appellant's Maasai extraction and pierced ears, and identification by pointing rather than touching did not render the parades unfair in the circumstances; fairness is a question of degree depending on each case.
Alleged conflict between sections 297(2) and 389 of the Penal Code
There is no conflict; section 389 is a residual provision which does not apply where a specific punishment is prescribed, and the lawful sentence for attempted robbery with violence is death
A plain reading of section 389 shows it operates only where no other punishment is provided. Section 297(2) prescribes the death penalty specifically for attempted robbery with violence, which places the offence in the category of attempted offences carrying a separate and distinct sentence, thereby ousting the general half-penalty rule. The Court endorsed its prior decision in Charles Mulandi Mbula v R and Dickens Odari Bige v R on this point.
Scope of the Court's jurisdiction on a second appeal
The Court is enjoined to consider only issues of law; concurrent findings of fact by the trial court and first appellate court cannot be disturbed except where based on no evidence or where the courts below went plainly wrong
Relying on Dzombo Mataza v R and section 361(1)(a) of the Criminal Procedure Code, the Court restated that matters of fact are for the trial court and the first appellate court. The State's submission that interference is permissible only where concurrent findings rest on no evidence was consistent with this principle and framed the Court's restrained approach to the appellants' factual complaints about identification.
Legal principles established
#- In a second appeal, the Court of Appeal is confined to matters of law and cannot interfere with concurrent findings of fact unless the two courts below considered matters they should not have, failed to consider matters they should have, or were plainly wrong on the evidence
- The guiding principle in evaluating an identification parade is whether it was conducted with scrupulous fairness, a question of fact dependent on the circumstances of each case
- Failure of a witness to give a prior description of a suspect does not invalidate an identification parade; it goes only to the weight to be attached to the identification evidence
- There is no conflict between sections 297(2) and 389 of the Penal Code; section 389 applies only where no other punishment is provided, and the specific penalty of death for attempted robbery with violence under section 297(2) ousts the general penalty in section 389
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The conviction and sentence of death for attempted robbery with violence, as upheld by the High Court, shall stand
- On appeal from
- High Court of Kenya at Nairobi
- H.C.CR.A Nos. 1152 & 1154 of 2004
- Jurisdiction invoked
- Second appeal under section 361(1)(a) of the Criminal Procedure Code, conferring jurisdiction on matters of law only
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Abdalla Kirao Mkare Wanje & 2 others v Republic[2016] KECA 399 (KLR)15 Jul 2016followed
Cite this brief
#Cite this brief
Caselaw, "Idd Mohammed Sairim John Lemashon Kisiko v Republic", Case Analysis (2015). Criminal Appeal No. 354 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/653/eng@2015-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.