Stephen Jirongo Shicheti & another v Republic [2019] KECA 247 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a robbery conviction but replaced the death sentence with 15 years in prison, confirming mandatory death sentences are no longer automatic.
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 appellants were positively identified as the perpetrators of the crime
- 2.Whether the death sentence imposed was lawful and appropriate in light of the Muruatetu dicta
Key legal issues
#Sufficiency and quality of identification evidence
Identification of the 1st appellant by recognition (a known watchman and neighbour who had booked the complainant's room) was free from possibility of error, and the 2nd appellant was arrested at the scene while the complainant clung to him; adequate security lighting existed
The Court held there was security lighting at the scene despite PW2's evidence that a bulb was hit. PW1 knew the 1st appellant beforehand and interacted with the attackers before the attack. The 2nd appellant was caught at the scene by members of the public, corroborated by PW2 and PW4. The Court affirmed the concurrent findings of the two lower courts, its jurisdiction on a second appeal being limited to questions of law under section 361(a) of the Criminal Procedure Code.
New argument on drunkenness of complainant raised for the first time on second appeal
Rejected as a new issue raised for the first time on appeal and unsupported by any evidence
Counsel for the appellants argued that the complainant's consumption of alcohol impaired his ability to identify the attackers. The Court noted this issue was never raised in the two courts below and refused to entertain it on that basis, adding that no evidence was adduced to support the claim, and that drinking does not necessarily mean impairment of judgment.
Legality and appropriateness of the death sentence
Following Muruatetu, the mandatory death sentence is unconstitutional; the Court found the death sentence harsh and excessive and substituted it with 15 years' imprisonment
The Court invoked its own motion to consider the legality of the death sentence, which it held itself bound to review in light of the Supreme Court's Muruatetu decision declaring the mandatory nature of section 204 of the Penal Code unconstitutional. It also relied on its own prior decisions in Christopher Ochieng and Jared Koita Injiri, concluded the sentence was too harsh and excessive, and substituted 15 years' imprisonment running from the date of the trial court's sentence.
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 unless based on no evidence
- A trial court must examine identification evidence carefully and be satisfied the circumstances of identification were free from possibility of error
- Recognition of an assailant is more reliable than identification of a stranger
- The mandatory death sentence is unconstitutional; courts may impose discretionary sentences in robbery with violence cases
Court orders
#- 1.The appeal on conviction is dismissed; the conviction is upheld
- 2.The sentence of death is substituted with 15 years' imprisonment with effect from 24th November, 2014
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Eldoret
- HCCRA No. 181 & 183 of 2014
- Jurisdiction invoked
- Section 361(a) of the Criminal Procedure Code - second appeal on matters of law only
Relief refused
#Appeal against conviction
The Court found the identification and recognition of the appellants was free from possibility of error, affirming concurrent findings of the two courts below
Costs
No costs order made in this 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.
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.
This Court has in a myriad of cases stated that evidence of visual identification is of great importance in criminal cases but if not properly evaluated and tested can cause a miscarriage of justice to an accused person.
...Recognition of an assailant is more satisfactory, more assuring, and reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in one form or other.
We accordingly substitute the sentence of death with 15 years' imprisonment with effect from 24th November, 2014, when the trial court imposed the earlier sentence.
Section 204 of the Penal Code deprives the Court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust, and unfair.
Issues in the judgment
#Internal factual inconsistency in the judgment's narration of the incident
Inconsistent description of counsel's reliance on Pius Otianga v Republic (pronoun error)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Jirongo Shicheti & another v Republic [2019] KECA 247 (KLR)", Case Analysis (2019). Criminal Appeal No. 81 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/247/eng@2019-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.