Emmanuel Elepuda Barasa v Republic [2019] KECA 318 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a robbery conviction but freed the appellant after 13 years, ruling the death sentence for robbery is no longer mandatory.
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 conviction based on identification by recognition without an identification parade was safe
- 2.Whether the prosecution evidence was so contradictory and inconsistent as to undermine the conviction
- 3.Whether the trial court erred in rejecting the appellant's alibi defence
- 4.Whether the mandatory death sentence under section 296(2) of the Penal Code could stand in light of Muruatetu
Key legal issues
#Sufficiency of identification by recognition
Identification by recognition was safe: the robbery occurred in daylight, Simon spent time with his attackers, and Arnold and Francis identified the appellant by name immediately after the robbery.
The court applied Wamunga and Lesaran, noting the robbery took place between 1.00 p.m and 2.00 p.m in favourable conditions, that Simon observed and conversed with the appellant, and that Arnold and Francis, who knew the appellant well as a cousin, gave his name to the assistant chief immediately after the event, leaving no possibility of mistaken identification.
Alibi defence
The concurrent rejection of the alibi by the two lower courts could not be disturbed on second appeal.
The court reaffirmed the second-appeal restriction under section 361 of the Criminal Procedure Code as stated in David Njoroge Macharia v R, found the prosecution evidence placed the appellant at the scene, that the related witnesses had no reason to lie, and declined to depart from the concurrent findings of fact.
Sentence for robbery with violence
The mandatory death sentence for robbery with violence is unconstitutional following Muruatetu; the sentence is discretionary and the trial court may impose a lesser penalty where circumstances deserve.
Relying on William Okungu Kittiny v Republic, the court held that Muruatetu applies mutatis mutandis to sections 296(2) and 297(2) of the Penal Code. Given the appellant and accomplices were armed only with sticks, the complainant suffered no serious injuries, and the appellant had served over 13 years, the court intervened on sentence.
Legal principles established
#- On a second appeal only matters of law fall for determination and the Court will not interfere with concurrent findings of fact unless based on no evidence, a misapprehension of the evidence, or wrong principles.
- Where the only evidence against a defendant is evidence of identification or recognition, the trial court must examine such evidence carefully and be satisfied that the circumstances of identification were favourable and free from possibility of error.
- Following Muruatetu as applied in Kittiny, the death sentence under sections 296(2) and 297(2) of the Penal Code is a discretionary maximum punishment, not mandatory.
Court orders
#- 1.Appeal against conviction dismissed
- 2.Appeal against sentence allowed
- 3.Sentence of death set aside and substituted with a sentence equivalent to the term already served
- 4.Appellant to be set free forthwith unless otherwise lawfully held
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Busia
- HC.CR.A No. 14 of 2006
- Jurisdiction invoked
- Section 361(1)(a) of the Criminal Procedure Code (second appeal limited to matters of law)
Relief refused
#Allowance of the appeal against conviction
Identification by recognition was favourable and free from possibility of error; concurrent findings of fact by the two lower courts could not be disturbed on second appeal
Costs
No costs order was made 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.
we dismiss the appeal against conviction but allow the appeal against sentence, set aside the sentence of death imposed upon the appellant and substitute therefor a sentence equivalent to the term already served. The appellant shall therefore be set free forthwith unless otherwise lawfully held.
Only matters of law fall for consideration and the court will not normally interfere with concurrent findings of fact by the two courts below unless such findings are based on no evidence, or are based on a misapprehension of the evidence, or the courts below are shown demonstrably to have acted on wrong principles in making the findings.
It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial Court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction.
The sentence of death under Section 296 (2) and 297 (2) of the Penal Code is therefore a discretionary maximum punishment, and the trial court is at liberty to exercise discretion in imposing a sentence other than the death penalty, where the circumstances so deserve.
where identification is based on recognition by reason of long acquaintance, there is no better mode of identification than by name.
Issues in the judgment
#Two consecutive paragraphs are both numbered [9] in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Emmanuel Elepuda Barasa v Republic [2019] KECA 318 (KLR)", Case Analysis (2019). Criminal Appeal No. 671 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/318/eng@2019-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.