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Court of AppealDismissedSecond appeal from Eldoret High Court Criminal Appeal (Mshila and Karanja JJ, judgment delivered January 19, 2012)· [2023] KECA 792 (KLR)

Stephen Makokha Wekesa v Republic

Court of Appeal of Kenya
30 June 2023
5,265 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal dismissed a robbery-with-violence appeal, confirming that Muruatetu's death sentence ruling applies only to murder, not robbery.

What this practically means

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Executive summary

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The Court of Appeal at Eldoret (Sichale, Ochieng and Achode JJA) dismissed in its entirety the second appeal of Stephen Makokha Wekesa against his conviction on two counts of robbery with violence and death sentences imposed by the Magistrate's Court at Eldoret and upheld by the High Court (Mshila and Karanja JJ) on January 19, 2012. The appellant and five others were convicted of a 1999 armed robbery in Trans Nzoia during which the complainants were assaulted, raped, and robbed of a motor vehicle, household goods and cash; the appellant was identified at the scene and at an identification parade, and stolen items were recovered from his house. Being a second appeal, the court's jurisdiction was confined by section 361(a) of the Criminal Procedure Code to questions of law, and it would not disturb concurrent findings of fact absent want of evidence, misapprehension, or wrong principles. The court held that the High Court had properly discharged its first appellate duty of re-evaluating the evidence; that the lighting from hurricane lamps and torches, the approximately ninety-minute duration of the attack, the close proximity of the appellant to the witnesses, and his uncovered face made the identification conditions favourable under the Turnbull guidelines; and that the identification parade complied with the National Police Standing Orders, PW2's flawed identification having been properly disregarded. On sentence, invoking Muruatetu II's confinement of Muruatetu I to murder, the court found the death sentence for robbery with violence constitutional. The appellant had abandoned and not submitted on the sentence ground. The conviction and sentence were affirmed.

Key legal issues

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01

Duty of the first appellate court

Holding

The High Court discharged its mandate as a first appellate court by exhaustively scrutinizing and re-evaluating the evidence; no failure of the Okeno duty was established.

Reasoning

The court set out the Pandya formulation of the first appellate court's duty and reviewed the impugned judgment, which expressly recorded that the judges had scrutinized and re-evaluated the prosecution evidence and made findings on witness reliability. On that basis it concluded the judges made up their own minds on the evidence, so the complaint of a failure to re-evaluate failed.

p. 7
02

Circumstances of visual identification

Holding

The lighting from hurricane lamps and torches, the roughly one-and-a-half-hour duration of the attack, the close proximity between the appellant and the complainants, and the absence of face coverings made the conditions favourable for positive identification.

Reasoning

Applying the Turnbull guidelines on the circumstances in which identification evidence comes to be made, the court weighed the length of observation, distance, lighting and prior interaction. The complainants' testimony was consistent through cross-examination, the parade occurred only three days later, and no effort was made to conceal faces, so the court agreed with both courts below on positive identification.

p. 7
03

Proper conduct of identification parades

Holding

The identification parade was properly conducted by PW7 in accordance with the National Police Standing Orders; PW2's flawed identification was excluded but the remaining identifications stood.

Reasoning

The court set out the Standing Orders rules for parades and compared PW7's evidence against them: the suspect was informed of the purpose, consented, could call a friend or advocate, chose his position, could change position, and witnesses identified him by touching and were isolated after. PW2's sighting of the appellant before the parade tainted only her identification, and the trial court had already disregarded it.

p. 9
04

Constitutionality of the death sentence for robbery with violence

Holding

The death sentence for robbery with violence under section 296(2) of the Penal Code is neither excessive nor unconstitutional; Muruatetu applies only to murder.

Reasoning

The court noted Muruatetu II's directions confining Muruatetu I to the mandatory sentence for murder, observed that the appellant abandoned and did not submit on the sentence ground, and considered the protracted violence against the complainants and the mitigation considered by the magistrate. It agreed with the two courts below on sentence.

p. 10

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to questions of law and will not interfere with concurrent findings of fact of the two courts below unless based on no evidence, a misapprehension of the evidence, or wrong principles
  • The first appellate court must re-evaluate and analyse the evidence afresh and reach its own conclusions, while bearing in mind that it did not see the witnesses
  • Identification parades must be conducted in strict compliance with the rules, fairly and seen to be fair, to eliminate the risk of erroneous identification
  • The elements of robbery with violence under section 296(2) of the Penal Code are read disjunctively; one element suffices
  • Muruatetu is confined to the mandatory death sentence for murder and does not render mandatory sentences in other offences unconstitutional

Court orders

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  1. 1.Dismissal of the appeal in its entirety
  2. 2.Upholding of the concurrent convictions and sentences of the trial court and the High Court
On appeal from
High Court of Kenya at Eldoret
Jurisdiction invoked
Second appellate jurisdiction under section 361(a) of the Criminal Procedure Code, confined to questions of law

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Stephen Makokha Wekesa v Republic", Case Analysis (2023). Second appeal from Eldoret High Court Criminal Appeal (Mshila and Karanja JJ, judgment delivered January 19, 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/792/eng@2023-06-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.