Juma Anthony Kakai v Republic [2018] KECA 562 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a watchman's robbery conviction but replaced his death sentence with 20 years in prison under the Muruatetu decision.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was cogent evidence to prove that the appellant was on duty on the material night, that he let in the robbers, willingly aided them by failing to let out the dogs, or warn the complainant when he arrived home, and for disappearing after the robbery, indicating that he aided the robbers in committing the crime
- 2.Whether failure by the prosecution to call a crucial witness (the maid) was indicative that the evidence by the said witness was adverse to the prosecution's case
- 3.Whether the death sentence should be maintained in light of Francis Karioko Muruatetu and another v Republic
Key legal issues
#Sufficiency of evidence on second appeal that the appellant aided the robbery by omission
The concurrent findings of the two courts below that the appellant, by his omissions, aided the robbers as a principal offender under Section 20(1)(b) of the Penal Code were based on evidence and would not be disturbed on second appeal.
The court reiterated that on a second appeal it is restricted to matters of law and will not interfere with concurrent findings of fact unless based on no evidence, a misapprehension of evidence, or wrong principles. The trial magistrate who saw the witnesses found the appellant was on duty, let in the robbers, failed to release the dogs, failed to raise the alarm, and disappeared with the robbers. There was no forceful entry, the robbers demanded the appellant's ID copy, and he led police to his co-accused. These findings rested on ample evidence.
Failure to call a crucial witness (the maid)
Failure by the prosecution to call the maid was not fatal; no particular number of witnesses is required to prove a fact, and the remaining evidence was sufficient to link the appellant to the offence.
The court held that even if the evidence of PW4 were discounted, the appellant was identified by PW1 and PW2, disappeared from his workplace immediately after the robbery, the robbers demanded his ID copy, and he led police to the co-accused. Section 143 of the Evidence Act removes any requirement for a particular number of witnesses. The trial magistrate had also dismissed the suggested grudge as an afterthought.
Alibi defence
The alibi defence was displaced by the evidence of three witnesses, applying the principles in Wang'ombe v Republic.
The court applied Wang'ombe v Republic: an accused raising an alibi assumes no burden of proof, and the prosecution bears the burden of proving guilt. However, the evidence of PW1, PW2 and PW4 that the appellant was on duty on the material night, coupled with the circumstantial conduct pointing to his complicity, totally displaced the alibi that he had left his employment in October 2005.
Mandatory death sentence after Muruatetu
In light of Francis Karioko Muruatetu, the mandatory death sentence is unconstitutional and the court exercised its discretion to substitute the death sentence with twenty years imprisonment given the appellant was a first offender.
The court took cognizance of the Supreme Court's decision in Muruatetu removing the fetters on sentencing discretion in capital offences. Weighing that the appellant was a first offender, that he offered no mitigation because the death sentence had been the only lawful sentence, and that remitting the file for fresh mitigation would cause further delay and backlog, the court found the ends of justice served by reducing the death sentence to twenty years effective from conviction.
Legal principles established
#- A second appeal is confined to matters of law and an appellate court will not interfere with concurrent findings of fact by the two courts below unless such findings are based on no evidence, are based on a misapprehension of the evidence, or the courts below acted on wrong principles.
- An accused who raises an alibi assumes no burden of proof; the burden of proving guilt remains on the prosecution, and it is sufficient for the trial court to weigh the alibi against the prosecution's evidence.
- An appellate court on credibility must give allowance that the trial court was in a better position as it saw and heard the witnesses.
- Following Muruatetu, courts have discretion in sentencing for offences hitherto carrying a mandatory death penalty; the first appellate court's duty to weigh conflicting evidence remains obligatory.
Court orders
#- 1.Appeal against conviction dismissed
- 2.Death sentence set aside and substituted with a term of twenty years imprisonment effective from the date of conviction
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.CR.APP. No. 637 of 2007
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Court of Appeal Rules on matters of law only
Relief refused
#Allowance of the appeal against conviction
The two lower courts carefully considered the evidence and the conviction was supported by cogent evidence; the alibi defence was displaced
Costs
No costs order was made; this being a criminal appeal, no order as to costs appears 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.
Accordingly although the appeal on conviction fails, we are inclined to interfere with the judgment in regard to the death sentence which we hereby set aside and substitute thereto with a term of twenty years effective from conviction.
A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence.
When an accused raises an alibi as an answer to a charge made against him he assumes no burden of proof and the burden of proving his guilt remains on the prosecution.
Luckily the Supreme Court decision has cured that imbalance in criminal law by restoring judicial function of sentencing in capital offences.
This judgment is written pursuant to the provisions of Rule 32 of the Court of Appeal Rules as G.B.M. Kariuki JA a member of this Bench left the judiciary before its delivery.
Issues in the judgment
#The judgment states the appeal is 'devoid in merit' yet proceeds to allow it in part on sentence; this is internally consistent only because the court relies on Muruatetu, but the phrasing is ambiguous.
The judgment states it was PW1 who led the police to arrest the appellant, whereas the narrative earlier records that PW6, with tips, learnt the appellant's whereabouts - a possible misstatement of the investigative chain.
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.
- Kungu v Republic (Criminal Appeal 103 of 2018) [2023] KECA 1452 (KLR)[2023] KECA 1452 (KLR)24 Nov 2023
Cite this brief
#Cite this brief
Caselaw, "Juma Anthony Kakai v Republic [2018] KECA 562 (KLR)", Case Analysis (2018). Criminal Appeal No 48 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/562/eng@2018-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.