George Onyango Kisera & 1 other v Republic

The trial court and the first appellate court made concurrent findings that the black leather belt belonging to the complainant was recovered on the 2nd appellant's person immediately after the robbery, and that his explanation was untrue. He offered no plausible explanation of how he came by the stolen items. As a second appellate court, the Court of Appeal was constrained by section 361(1)(a) of the Criminal Procedure Code not to disturb concurrent findings of fact and found no basis to interfere.

The Supreme Court in Muruatetu declared section 204 of the Penal Code invalid insofar as it prescribed a mandatory death sentence for murder, and clarified that the death penalty remained a discretionary maximum penalty. This Court, in Kittiny, extended that holding mutatis mutandis to sections 296(2) and 297(2). The decision of the Supreme Court binds all other courts immediately, giving this Court jurisdiction to direct a sentence re-hearing or pass any appropriate lawful sentence. On the facts, the appellants had served 9 years and the complainant sustained no serious injuries, making imprisonment appropriate.

The trial magistrate had considered herself bound to impose the mandatory death sentence despite mitigation. Since the appellants' mitigating circumstances were already on the record, and given their nine years in custody and the absence of serious injuries to the complainant, the Court found it unnecessary to remit the matter for a sentence re-hearing and instead substituted a term of fifteen years' imprisonment effective from the date of conviction.