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Court of AppealPartially AllowedSecond appeal from Eldoret Chief Magistrate's Court; Criminal Appeal (High Court) dismissed 2nd October 2014

Biwott v Republic (Criminal Appeal 263 of 2018) [2023] KECA 1528 (KLR)

Court of Appeal of Kenya
15 December 2023
3,848 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal upheld a robbery conviction but freed a man after 13 years because death sentences can never be imposed on children.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Eldoret by Michael Kimutai Biwott against the dismissal of his first appeal by the High Court (Kimondo & Ngenye JJ), which had upheld his conviction by the Chief Magistrate's Court at Eldoret for attempted robbery with violence contrary to Section 297(2) of the Penal Code and the sentence of death imposed on 8th December 2010. The appeal raised two issues: whether the offence was proven beyond reasonable doubt, and whether the death sentence was illegal given that the appellant was a minor at the time of the offence. On the first issue, the Court applied its limited second-appeal mandate under Section 361 of the Criminal Procedure Code, found the identification evidence of five witnesses overwhelming and uncontroverted, and upheld the conviction. On the second issue, new and compelling evidence - a birth certificate admitted on application in 2023 - established that the appellant was 15 years old when the offence was committed on 21st June 2009. Section 190 of the then Children's Act prohibits the imposition of a death sentence on a child, and the respondent conceded the sentence was illegal. Following JKK v Republic, the Court held the death sentence illegal, set it aside, substituted a sentence of imprisonment for the period already served, and ordered the appellant's immediate release after about 13 years in custody. The appeal therefore partially succeeded: conviction affirmed, sentence quashed. The Court also flagged, without deciding, that the word 'conviction' should not have been used for a minor under Section 189 of the Children's Act, and noted unexplained aspects of the appellant's arrest.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned judges erred in law in finding that the offence of attempted robbery with violence was proven beyond reasonable doubt under the circumstances
  2. 2.Whether the learned Judges erred in law in upholding the sentence of death, which was illegal, more so after the respondent had conceded that the appellant was a minor

Key legal issues

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01

Sufficiency of proof of attempted robbery with violence on a second appeal

Holding

The conviction was safe and sound and was upheld

Reasoning

The court, exercising its limited mandate on a second appeal to consider matters of law only, found the identification evidence of five witnesses overwhelming and largely uncontroverted. The identification parade was conducted fairly and in accordance with the rules, and identification was made under electric light with sufficient time and opportunity. No attempt was made to submit against this ground, which therefore failed in its entirety.

p. 5
02

Legality of a death sentence imposed on a person who was a minor at the time of the offence

Holding

The death sentence was illegal, was set aside and substituted with imprisonment for the period already served

Reasoning

New and compelling evidence (a birth certificate showing the appellant was born on 26th January 1994, admitted on application) established he was 15 at the time of the offence. Section 190 of the Children's Act prohibits a death sentence for a child. The respondent conceded the sentence was illegal, and following JKK v Republic the court held the appellant could not face the death penalty; the sentence was quashed and substituted with the period served after about 13 years of incarceration.

p. 7

Legal principles established

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  • A second appellate court under Section 361 of the Criminal Procedure Code concerns itself only with matters of law and will not interfere with concurrent findings of fact unless based on no evidence, misapprehension of evidence, or wrong principles
  • No child may be sentenced to death; a death sentence imposed on a minor is illegal and cannot stand

Court orders

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  1. 1.Upheld the appellant's conviction for attempted robbery with violence and dismissed the appeal on conviction
  2. 2.Set aside the sentence of death and substituted it with a sentence of imprisonment for the period already served
  3. 3.Ordered that the appellant be set at liberty forthwith unless otherwise lawfully held

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya (Eldoret)
Jurisdiction invoked
Section 361(1)(a) of the Criminal Procedure Code (second appeal, matters of law only)

Relief refused

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Quashing of the conviction for attempted robbery with violence

The evidence of identification and the ingredients of the offence were overwhelming and largely uncontroverted

Costs

No costs order made

Quotable passages

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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 set aside the sentence of death meted out and substitute it with a sentence of imprisonment for the period he has already served. Accordingly, we now issue an order that the appellant be set at liberty forthwith unless otherwise lawfully held.
p. 7Final orders - substitution of sentence and release
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.
p. 5Second appeal - scope of appellate mandate
The purposes of the sentences provided for under the Children Act are meant to correct and rehabilitate a young offender, i.e. any person below the age of 18 years while taking into account the overarching objective is the preservation of the life of the child and his best interest.
p. 6Sentencing of child offenders
No child shall be ordered to imprisonment or to be placed in a detention camp.
p. 6Statutory restriction on punishment of minors

Issues in the judgment

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minor

Judgment records PW3's date of the events as 21st June 2006, inconsistent with the charge and all other evidence placing the offence on 21st June 2009

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, "Biwott v Republic (Criminal Appeal 263 of 2018) [2023] KECA 1528 (KLR)", Case Analysis (2023). Second appeal from Eldoret Chief Magistrate's Court; Criminal Appeal (High Court) dismissed 2nd October 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1528/eng@2023-12-15

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