Josphat Ashiundu & 3 others v Republic [2019] KECA 559 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed four robbery convictions and death sentences, ruling that identification parades were validly conducted and post-Muruatetu death sentences remain available for aggravated robberies.
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 evidence that the 1st appellant mentioned the names of his accomplices was improperly admitted against the appellants
- 2.Whether the identification parades were conducted in accordance with the prescribed procedures given that IP Kemboi did not give detailed evidence on selection of parade members
- 3.Whether the witnesses had told the police that they could identify the suspects
- 4.Whether the High Court failed to re-evaluate the evidence and consider the defences of the appellants
- 5.Whether the sentence of death for robbery with violence remains mandatory and appropriate in light of Muruatetu
Key legal issues
#Admissibility of the 1st appellant's indication of accomplices
The evidence that the 1st appellant mentioned his accomplices was discounted by the trial magistrate and not considered by the High Court; the convictions rested on visual identification, not the alleged confession
The trial magistrate expressly held the evidence inadmissible against the co-accused. Both lower courts based conviction on visual identification evidence, so the complaint of improperly admitted confession evidence could not found the appeal.
Sufficiency of identification parade compliance
The signed prescribed-form certificate by the parade officer, unchallenged by the appellants who signed the forms indicating satisfaction, sufficed to prove that parade members were of similar age, height and general appearance as the suspects
Although IP Kemboi did not give detailed evidence on how parade members were selected, he signed the prescribed Police Form 156 certifying strict compliance. The appellants each signed the parade forms without objection and never asserted that any member did not qualify for the parade.
Re-evaluation of evidence by first appellate court
The High Court re-evaluated the evidence and made proper findings that identification conditions were favourable; the appellants' grounds on re-evaluation and defences failed
The High Court considered the prosecution evidence and the respective defences, made express findings that the complainants had ample time and sufficient light to identify the appellants, and disbelieved the defences. The concurrent findings of fact were supported by credible and cogent evidence and were not directly challenged on the circumstances of identification.
Sentencing after Muruatetu
The Muruatetu unconstitutionality of the mandatory death sentence extends to robbery with violence and attempted robbery, making death a discretionary maximum, but death remained the appropriate sentence on these aggravated facts
The court applied Muruatetu to sections 296(2) and 297(2) of the Penal Code, following Kittiny and Gichimu. However, the robberies were committed by several armed people using lethal weapons, a watchman was killed cruelly, and complainants were cut with pangas, justifying the death sentence.
Legal principles established
#- Following Muruatetu, the death sentence for robbery with violence under section 296(2) and attempted robbery under section 297(2) of the Penal Code is a discretionary maximum punishment, not a mandatory one
- An unquestioned certificate by the officer conducting an identification parade that the prescribed instructions were complied with is sufficient evidence that parade members were of similar age, height and general appearance as the suspect, absent any challenge
- An appellate court will not disturb concurrent findings of fact by the two courts below where they are supported by credible and cogent evidence
Court orders
#- 1.The appeal of each appellant is dismissed in its entirety
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Kakamega
- H.C.C.A. No. 115 of 2006
- Jurisdiction invoked
- First appellate jurisdiction under the Criminal Procedure Code against judgment, conviction and sentence of the High Court
Relief refused
#Quashing of the convictions of all appellants
Concurrent findings of fact that the conditions of identification were favourable and that each appellant was positively identified were supported by credible and cogent evidence
Setting aside of the death sentences
Although the mandatory death sentence no longer applies after Muruatetu, the aggravated nature of the robberies made death the appropriate sentence
Costs
No costs order recorded; criminal appeal dismissed in its entirety
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.
The effect is that the death sentence for robbery with violence is a discretionary maximum punishment
we find that the unquestioned certificate by the officer conducting the parades was sufficient evidence that the persons taking part in the parade were of similar age, height and general appearance as each appellant.
We find that the concurrent findings of fact were supported by credible and cogent evidence and that the appeals have no merit.
For the foregoing reasons, the appeal of each appellant is dismissed in its entirety. We so order.
Issues in the judgment
#The Supreme Court decision in Muruatetu is cited with the year [2012] eKLR, which appears inconsistent with the known date of that decision, but this is as printed in the judgment
The judgment notes a discrepancy in the record of appeal regarding Augustine Lihanda, wrongly named as an appellant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Josphat Ashiundu & 3 others v Republic [2019] KECA 559 (KLR)", Case Analysis (2019). Criminal Appeal No. 170 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/559/eng@2019-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.