Buni Maela Maere v Republic [2015] KEHC 180 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CRIMINAL APPEAL NO. 227 OF 2011

(Being an appeal arising out of the original Conviction and Sentence in Criminal Case No.3279 of 2009 at Chief Magistrate’s Court at Mombasa Hon. T. Gesora S.R.M delivered on 4. 10. 2011)

BUNI MAELA MAERE……….…………...…………………APPELLANT

Versus

REPUBLIC…………………………………..……………… RESPONDENT

JUDGEMENT

[1]     The Appellant Buni Maela Maere together with two others, was charged with two counts of the offence of robbery with violence Contrary to section 296(2) of the penal code Cap 63 of the Laws of Kenya and an alternative charge of being in possession of a firearm without a firearm certificate Contrary to Section 4(1) as read with S 4(3) of the Firearms Act Cap 14 of the Laws of Kenya.

[2]     The particulars of the two counts of robbery were that on 13. 9.2009 at Kidsini village in Kaloleni District, Coast Province, Appellant and two others jointly while armed with dangerous weapons namely guns, robbed Kahindi Menza and Rama Menza of cash Ksh.100,000 and at or immediately before or immediately after the time of the robbery shot dead the said Kahindi Menza and Rama Menza.

[3]     In the alternative the Appellant was also convicted for being in possession of a firearm under the provisions of Section 179 (1) of Criminal procedure code though he was not initially charged alongside his –co-accused persons.

[4]     The particulars under this counts being that on 29. 9.2009 at Tononoka Estate in Mombasa District Appellant jointly with his co-accused were found in possession of a Berrelta pistol B/No.701594, a SHE-gun B/No.104628 and three rounds of 9mm ammunitions without firearm certificate.

[5]     The court found that the prosecution had made a case against the Appellant on both counts of robbery with violence contrary to section 296(2) and in the counts involving being in possession of firearms and ammunitions contrary to section 4(1) and 4(3) of cap 114 Laws of Kenya.  The learned trial Magistrate convicted the Appellant on the two counts of robbery and sentenced him to suffer death while on the counts of involving possession of firearms and ammunitions Appellant was convicted and sentenced to 7 years imprisonment on each count.

[6]     Aggrieved by the conviction and sentence Appellant now contests the findings of the trial court.  His appeal is grounded on the amended petition stated as follows:

That the learned trial Magistrate erred in law and fact by not considering that the prosecution side failed to conduct an  identification parade to test P.W.2 whether he was able to identify the assailants at a later stage hence contravention  of chapter 46 of Police Standing Orders.

That the learned trial Magistrate erred in law and fact by connecting my arrest with the presence matter without considering that the same was bad in law, as the one who caused my arrest was not summoned to court thus contravention of Section 150 of the Criminal Procedure code.

That the learned trial Magistrate erred in law and fact in failing to see that the legal burden was not proved against me hence contravention of Section 109 of the Evidence Act.

That the learned trial Magistrate erred in law and fact in failing to consider his defence as the same was unchallengeable to award him the benefit of doubt.

[7]     This being a High Court and first appellant court appeal has been submitted, the court is duty bound to re-evaluate the totality of the evidence on record and drew its own conclusions.  The legal principles have been set out in the case of OKENO VS. REPUBLIC 1972 SHANTILLAL M. RUWALAV R 1975 EA570.  The duty goes beyond rehearsing findings and conclusions of the trial court.  In doing so we bear in minds of the trial court had the advantage of hearing and seeing witnesses.

[8]     The cautionary principle is remarkably endorsed in the case of PETERS Vs. SUNDAY POSTS 1958 E.A 424.

THE EVIDENCE BEFORE THE TRIAL COURT SUMMARIZED  HEREIN UNDER

[9]     PW1 HAMISI RASHID ALI is a businessman.  On the material day, he had gone to purchase a piece of land from Kahindi Menza.  In the presence of Kahindi Ngowa, Ngonyo Jiwe, the sons of Kahindi Kahindi Menza – Karisa and Ahmed, and Kalume a village elder a sale agreement was drafted and signed (MFI-1). He gave money to Kahindi Menza and his sons, who counted it before signing.  He left the place with Kahindi Ngowa and Ngonyo Jiwe.  Just as they were leaving, they were informed by young people running towards them that an old man and a younger one had been shot.  They went to the scene and found Kahindi Menza and his son Ahmed Menza lying on the ground. They were bleeding and looked dead.  The surviving son Karisa Menza was weeping.  He explained that three people on a motor cycle had shot the deceased and taken off with the money.  They all went to the police station and recorded statements.

[10]   PW2 KARISA KAHINDI MENZA stated that on the material day, he accompanied his father Kahindi Menza to the house of Jiwe Ngala to sell some land.  The land was sold at Kshs.100,000/= and an agreement signed. His father, Kahindi Menza (deceased) carried the money as they left for home. Fifteen minutes later, at a place called Kidzini, they passed a motor cycle bodaboda moving in the opposite direction from them.  There were 3 persons on the motorcycle, and it had no registration number. They then heard roaring and moved aside to let a motorcycle coming from behind them to pass.  The motorcycle stopped a few paces in from of them and the passenger at the back alighted and pointed a gun (MFI-2) at him.  He had a guns shot and ran away.  There were other shots, but he could not count them.  He stopped at a distance and called one Cheruiyot on his phone to call the police.  The shooting had stopped.  He went back to the scene and found his father and brother bleeding.  People came from all over and were all shocked until the police came fifteen minutes later.  He later noticed that the bag that had the money was not at the scene.  In cross examination, PW2 affirmed that the person who alighted from the motorcycle and pointed a gun at him and shot his father who was standing next to him was the Appellant.  He saw him clearly as they were standing face to face but he did not know him before.

[11]   PW3 P B was 16 years at the time of giving evidence.  The court satisfied itself that she understood the weight of an oath and allowed her to give sworn testimony.  She stated that on the material date she was on the way to Mtamboni when a motorcycle passed her with 3 people on it.  She passed the deceased persons walking in the opposite directions.  Later she saw the motorcycle that had passed her earlier returning.  5 minutes later she heard gun shots behind her.  She saw Karisa, one of the people she had passed with the deceased, running. She also ran off towards Mtamboni.  She stopped after a while.  She was told that some people had been killed so she went back to see only to find that it was Mzee Kahindi and his son whom she had passed by earlier.  They were bleeding.  She did not know the people on the motorcycle and did not look at them.

[12]   PW4 DAMA KAHINDI MUDZOMBA heard gun shots on the material date outside her house on the road.  She came out and found two people on the ground.  One person was running off so she too ran off to the neighbor’s house. She and the neighbor went to see and found the deceased Kahindi Menza and Rama Menza injured and bleeding.  She did not see the assailants.

[13]   PW5 No.71874 CONSTABLE SAMUEL KIBIWOT of Kaloleni Police Station was called by the officer in charge of station with news of incident.  He proceeded to the scene with several other officers.  The deceased were identified by Karisa Menza (PW2) as Kahindi Menza and Rama Menza, his father and brother respectively.  PW2 informed them that they had come from selling their land to PW1 and Kahindi was carrying Ksh.80,000 of the purchase price while Rama was carrying Kshs.20,000/=.  The police did not get the motorcycle or its riders.

[14] The bodies of the deceased were taken to Coast General Hospital.  Seven spent sheets of 9mm ammunition (MF1-3) was collected at the scene.  The description of the gun looked like one used for robberies around the area.  The description matched a parchet sterling.  Police Informers gave intelligence that the attackers were known.  On 29th September, 2009 the police were informed that one of suspects, the appellant had been seen at Kaloleni stage alighting from a matatu carrying a bag.  The police went with informers to his house.  A girl and small children came out of his house when they knocked. The appellant refused to come out so the police robbed two teargas canisters into the house and he came out on his knees.  When questioned, he said he couldn’t die alone and agreed to take the police to his accomplices. He took them to the house of 2nd accused where three officers were left searching the house. He took the police to Bondari opposite the Athi River Mining plant where they found the 2nd accused.  The two suspects turned on each other and begun to accuse each other, so the police separated them.  They each said that the gun was at Tonoka but that it belonged to the other.

[15]   The police went to the house in Tononoka showed by the appellant.  The 3d accused was inside with the 4th accused. The 1st accused asked the 3rd accused to give him “that bag” and the 3rd accused brought out a black bag.  The bag was empty.  The 3rd accused was asked to give the police “that thing he had been given by the 1st accused”.  He turned to the 4th accused (his wife) and asked for keys.  He went to a toilet 50 metres away in the company of some other officers. He emerged with a bucket with a yellow paper inside.  There was a gun covered by the paper, a jungle green jacket used by police, a GSU rain coat and a KPA reflector jacket.  The gun was a parchet sterling loaded with 3 rounds of ammunition.  The police searched the toilet again and found a Barrette pistol.  The officers who had been left searching the house in which the appellant had been arrested found an army sweater and a track suit for “R” Company of the GSU.  The owner of the house said that it belonged to the appellant.  The spent cartridges and the two guns were forwarded to ballistic experts who reported that the cartridges had been fired from the parchet sterling gun.

[16]   PW6 EMMANUEL LANGAT a Ballistic expert testified that he received various exhibits from No.61368 Corporal Joseph Kiunguti of Kaloleni Police Station for analysis.  He produced his findings in a report dated 16th October 2009.  He confirmed that Exhibits D1-D7 spend shells of bullets caliber 9mm x 19 had been fired by one gun.  He also concluded that they had been fired by the gun exhibit A received for analysis, a sub machine gun model VC 25.  When cross examined by the 2nd accused, he stated that the gun exhibit A is not a parchet sterling, which is made in another country.  It is different from a She-gun.

[17]   PW7 ANTHONY SAFARI MUTUA is a neighbor of the 3rd and 4th accused.  He was questioned on 30thMarch 2010 by the police and identified one toilet out of ten which belonged to his neighbors as he had seen them and their children use it.  He stated that everyone locks their toilet with a padlock.  He also identified the 3rd and 4th accused from the dock as his neighbors.

[18]   PW8 DR.K.N MANDALYA is a pathologist from Coast Province Hospital.  He carried out the post morterm on two deceased persons, Kakinada Menza and Rama Kakinada.  Their bodies were identified by Karisa Kakinada Menza and senior Menza Rama.  He determined that their deaths were caused by bleeding due to gunshot wounds. He produced the report PEXH-19.

[19]   PW9 No.232912 CHARLES KIPTUMU BOWEN was the investigating office from Kaloleni Police station and Deputy Officer in charge of station.  On the material date he received a phone call from an unidentified good Samaritan reporting gun shots at Kaya Fungo area of Kaloleni District. He proceeded to the scene along with other officers.  They arrived at the scene to find a group of people and saw 2 bodies who they determined had been shot from the injuries.  They established that the deceased had sold a “shamba” to one Hamisi.  The buyer had previously brought Ksh.40,000/- but the deceased had rejected this as too little.  On that day, the buyer had brought Ksh.100,000/- with a promise to bring the balance later.  After the sale, on their way home, the seller and his son were attacked by person on a red motorcycle.  On 29th September, 2009 information was received about one of the suspects, and the appellant was apprehended at the home of a lady friend.  The appellant when questioned about the incident of 13th September 2009 said he was aware and led the police to the 2nd accused accomplice.  The two accused took the police to the hour of the 3rd and 4th accused in Tononoka where the gun used in the incident was recovered.  The appellant stated that he had last seen the gun that morning, having been with the 2nd accused who had gone to clean the gun.  He stated that the 2nd accused was a former GSU officer.  The appellant also alerted the police to the existence of an additional gun which they found in the iron sheets on the toilet.

[20]   PW10 CHRISTOPHER KARISA JAPHET is the village elder who drew up the land sale agreement.  He witnessed the buyer giving the deceased Kshs.100,000/=.  He heard screaming a little while after they had left and came to find out that they had been shot.

[21]   PW11 NO.65755 Sergeant WILSON MWITA of the CID flying squad, on 29th September he accompanied other police officers to  a house in Tononoka where they were led by the appellant and the 2nd accused person to the house of the 3rd and 4th accused.  He narrated how the guns were recovered, corroborating the testimony of P.W5.

[22]   In his judgement learned trial Magistrate made the following findings on the charges against the appellant:-

“Though the 1st accused was not charged of being in possession of firearms but by virtue of the ………..established by the prosecution and by virtue of finding that possession is a question of control proximity and access, I am satisfied that he too possessed the firearms.  He is convicted by virtue of Section 179(1) and (2) of Criminal Procedure Code.   On the question of the robbery, I have no doubt at all that the deceased persons Kahindi Menza and Rama Menza were shot dead and robbed.  This is clean from the evidence of P.W2 and P.W8.  Their dead bodies were collected by police and were seen by many of the witnesses who testified.  P.W2 was clear in his testimony in chief and even under cross-examination that it was the 1st accused who pointed a gun at him because he stood in front of him face to face in daylight and saw him……though it was his first time he saw him and was categorical he was the one”.

[23]   When this put together with the finding of the possession of the firearm used in the offence, the trial court was convinced that appellant was involved in the robbery.

ANALYSIS AND DETERMINATION

[24]   We have considered the evidence at the trial court, grounds of appeal, submissions by the appellant and objection raise by the state.  It is clear from the record that a robbery took place on 13. 9.2011 at Kisauni area. The robbery involved three people armed with assault rifles.  They attacked and shot dead Rama and Menza.  The deceased were robbed of Ksh.100,000/=.  None of the stolen items were recovered from the Appellant.

[25]   The prosecution case was mainly base on identification and secondly on recovery of firearms.  Therefore the issue that calls for our consideration is whether the identification was proper and safe to warrant conviction of the appellant.

[26]   In this case the conviction of the appellant proceeded on the premises of positive recognition and recovery of the firearm used in the robbery.   The evidence of identification in support of count 1 and 2 was that of dock identification.  After the incident on 13. 9.2011 P.W2 the key identifying witness saw appellant in court.  The police did not conduct identification parade as set out under Cap 46 of Force Standing Orders.

[27]   The offence or robbery took place on 13. 9.2011 where arrest of the appellant and co-accused was on 29. 9.2011. There was no evidence that P.W2 had seen appellant before.   It was important to conduct identification parade to test the velacity and credibility of the evidence on identification.  There is no evidence that PW.2 gave a description to the police or any other security agency physical features of the appellant.

[28]   According to PW2 the incident of robbery took a very short time. We are not told the distance between assailants and PW.2 when attack occurred.  The applicable law on recognition has been set out in the case of WALTER AMOLO V. REPUBLIC 1991 2KAR 2014.  The court held:

“Following Gabriel Njoroge V. Republic 1987 1 KAR 1134 visual identification must be treated with the greatest care and ordinary a dock identification alone should not be accepted unless the witness has in advance;

Given a description of the assailant.

Identified the suspect on a properly conducted parade.

[29]   In the case of  PAUL ETOLE AND ANOTHER V. REPUBLIC C.A 24 of 2000 UR, the court stated as follows:

“The prosecution case against the second appellant was presented as one of recognition or visual identification. The appeal of the second appellant raise problems relating to evidence and visual identification.  Such evidence can bring about miscarriage of justice; But such miscarriage of justice occurring can be reduced if whenever the case against an accused depends wholly or substantially on the correctness of one or more identification of the accused, the court should warn itself of the special need for caution before convicting the accused; Secondly it ought to examine closely the circumstances in which the identification by each witness came to be made; finally, it should remind itself of any specific weakness which had appeared in the identification evidence. It is true that recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognize someone whom he knows, the court should remind itself that mistakes in recognition of close relatives and friends are sometimes made”

[30]   The importance of testing the evidence of identification with care even where the identification is that of recognition was restated in the case of SAMSON KIPRUTO & 3 OTHERS VS. REPUBLIC CA NO.140 of 1987 where the court held:-

“An identification parade is not usually essential in cases of recognition, but it may be where the previous association is slight and the chances of recognition difficult”.

[31]   In MAITONYI VS. REPUBLIC 1986 KLR 198 the court of Appeal held:-

“There is a second inquery which ought to be made and that is whether the complainant was able to give some description or identification of his or her assailants, to those who came to the complainant’s aid or to the police. If a witness receives a very strong impression of the features of the assailant, the witness will usually be able to give some description”.

[32]   In the instant case no evidence availed what kind of description (PW2) gave to the members of the public and police who visited the scene.  The purpose of giving initial description is to test accuracy and credibility of the evidence to be adduced at the trial.

[33]   These cases underlines the importance of the court to establish nature and circumstances a witness claims to have recognized an accused person.  We note that the offence took place during the day.  The robbers were riding a motorcycle.  They were armed with dangerous weapons namely pistol.  The witness in this case was not expecting an incident of robbery to take place. They had just finished transacting land sale agreement.

[34]   The movement of motorcycles in rural and suburban areas is a common occurrence.  There is no other evidence from PW2 that he knew appellant before the fateful day.  P.W4 investigating officer did not mention that PW2 mentioned or gave a description of the appellant to the police.  On evaluating the testimony of PW2 his evidence was an after -thought and can only be summarized as dock identification.

[35]   From the record the court did not warn itself of the special need for caution before convicting the appellant on a single identification witness.  The appeal on the basis of recognition allowed.

[36]   The second issue for consideration is in respect to recovery of firearms and ammunition in connection with the charge facing appellant.  A capital robbery carrying with it the death penalty upon conviction is committed if in pursuit of theft the offender is:

a) Armed with a dangerous or offensive weapon or instrument

or

In company with one or other person or persons

or

at or immediately before or immediately after the time of robbery, he wounds, beats, strikes or uses any other personal violence to the victim of the robbery.

Any of these three alternatives or a combination of them would be sufficient for a charge under S 296(2) of the Penal code. However the overriding consideration is that any of the three alternatives must be committed in pursuit of robbery or theft.

[37]   In the instant case  from evidence on record by PW1, PW2 PW3 confirms that on 13. 9.2009 at Kidsini village deceased Kahindi Menza and Rama Menza were robbed of Ksh.100,000 and shot dead immediately before or immediately after the robbery.  Dr. K.N Mundalya PW8 carried out post mortem on 16. 9.2009, on the bodies of one Kahindi Menza and Rama Menza.  His findings were that externally there was an entry bullet wounds at Med-auxulary line and it exited the side fracturing the humerus.  The bullet also entered the chest cavity and entered part of the heart.  He produced post mortem as exhibit 19.

[38]   In respect of body of Rama Kakinada a post mortem was conducted on 18. 9.2009.  On the body there was a bullet entry on the lower back and exited on the upper chest.  He formed the opinion that the cause of death was haemorhage because of bullet wounds. This confirmed that the deceased died as a result of gunshots.

[39]   PW9 IP KIPTUNU said that on 13. 9.2009 on receiving telephone call regarding a robbery incident he rushed to the scene.  He confirmed occurrence of a robbery and two victims Kakinada and Rama Menza had been killed.  He made arrangements to collect the bodies to the police station and subsequently to Coast Provincial Hospital mortuary.  He further testified that on 29. 9.2009 he received information on whereabouts of a suspect in connection with the incident of robbery which occurred on 13. 9.2009.  While in company of other police officers the 1st accused; appellant herein was arrested.  He further stated that they proceeded to the house of 2nd accused on information from 1st accused where they recovered firearms and ammunitions.  It was on arrival at the scene 1st accused ordered 2nd accused to produce those “goods” meaning guns. He further gave evidence that a search conducted in a toilet belonging to the 3rd accused led to the recovery of a small gun Ext.2 serial No.104628; a magazine with 3 bullets of 9mm.  In the same scene 1st accused directed them where a Berrelte pistol S/No.70159 was hidden.  The exhibits were taken to the firearm examiner.

[40]   PW6 EMMANUEL GAGAL is a Firearm examiner with 6 years of working experience in that capacity. On 9. 10. 2009 he received from PW9 a submachine gun S/No.104628 Exh A, one magazine Exh(A) pistol Berrretta S/No.701594 Exh B, ……magazine Exh B, Bullets – Exh C, - 6 and shells of bullets Exh D,-D7 calibre 9mmx19.  On examination he established them to be in a fair general condition complete with all components parts, capable of being fired.  He successfully tested, fired the guns using the rounds of ammunition recovered from the scene.  He further testified that the fired catridge shells of caliber 9mmx9 were microscopically examined and found to have been fired from Exh A – Sub-machine gun. He found according to his analysis sufficient matching breach face markings to convince  him in his conclusive findings that the sub-machine gun S/No.104628 Exh A had been used to fire cartridge shells collected from scene of the crime.  The catridge cases had been marked as exh D1-D7 respectively.

[41]   From the comparison made regarding the fired bullets of 9mm caliber, which was microscopically examined, PW6 found sufficient matching rifling striations that convinced him that the submachine guns S/No/104628 had been used to fire the bullet Exhibits D1 – D7.

[42]   In his Judgement the learned trial magistrate made a finding as follows;

“My finding is that the 1st accused had control and could access the gun found at Tononoka.  It becomes clear that he was involved in the robbery furthermore the ballistic expert clearly connected the shells found at the scene with the gun that was at Tononoka”.

He found the 1st accused guilty of being in possession of a firearm and ammunition without a firearm certificate.  He convicted him under S 179(1)(2) of CPC.

[43]   We have anxiously considered this issue of possession of a firearm submachine gun and ammunitions positively identified in evidence surrounding circumstances of this case.  We have come to the conclusion that there was no error of law or principle committed by the trial court in its finding that possession of a firearm against the appellant was proved beyond reasonable doubt.  The definition of possession is well set out under S 4 of the Penal Code. It provides possession;

“be in possession of or have in possession” includes not only having in one’s own personal possession but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to or occupied by oneself or not for the use or benefit of oneself or of any other person.

if there are two or more persons and any one or more of them with the knowledge and consent of the rest has or have anything in his or their custody or possession, it shall be deemed and taken to be in the custody and possession of each and all of them”

[44]   In the instant case PW9 gave the sequence3 of events that led to the recovery of firearm used in the robbery which occurred on 13. 9.2009.  The primary source of evidence to recover was at Tononoka inside a toilet. While at the scene in company of the appellant and other suspects a submachine gun was retrieved first.  From the record appellant gave more information on the whereabouts of a second gun, Beretta pistol.  Indeed prove of possession of firearm and ammunitions used in the robbery shows that the appellant guilty was beyond any shadow of doubt.

THE DECISION

[45]   The evidence of the Doctor and the evidence of the firearm examiner were never challenged.   As we have pointed above the person found in possession of the firearm used in the robbery was the appellant.  It is not in dispute that gun fire was heard by witnesses who testified on the occurrence of the robbery on 13th September 2009. The appellant was arrested on 29. 9.2009 being in possession of the firearm.  As a result of the gunshot the deceased were wounded and killed. The Doctor confirmed that the deceased persons died from the injuries caused by the bullets.  The firearm examiner analyzed his findings of the examination in which he concluded that the firearm he examined was capable of being used and there was sufficient evidence that it had been used on 13. 9.2009 at Kaloleni.  That the cartridge and the bullets head found at the scene were fired from the submachine gun SHE-GUN  S/NO.104628 Exh. A as reference in the firearm examiner’s report.

[46]   These findings confirmed that the deceased persons were shot by bullets fired from SHE-GUN S/NO.104628 which was in possession of the appellant.  All these facts lead to one proposition that the appellant was at Kaloleni on 13. 9.2009 armed with a gun and in company of others not before court fired fatal shots that killed the deceased persons.

[47]   Due to the lapse of time from the date of committing the offence and recovery of the firearm finger prints impressions could not have been possible as requested by the defence in his appeal.  We are therefore of the conceded view that the offence of possession of firearm and ammunitions recovered under the direction and information of the appellant provides a sequence of events which placed the appellant at the scene of crime.  We reject the defence by the appellant regarding the findings of the trial court on this issue of possession of firearm.

[48]   The only matter that invites our intervention is the sentence meted out by the learned trial Magistrate.  The appellant was sentenced to death on both counts of robbery with violence. The appellant was further sentenced to 7 years imprisonment in respect of possession of firearms without a certificate.

[49]   According to the learned trial Magistrate the sentences were to run concurrently.  This issue has been considered in length by the court of appeal in the case of ABDUL DEBANO BOYE AND ANOTHER Vs. REPUBLIC  CA No.19/2000.  The court held as follows;

“We have repeatedly said that where an accused person is convicted on more than one capital charge as was the case here, the sensible thing to do is to sentence him to death on only one of the counts and leave the others in abeyance, including any sentence of imprisonment.  The reason for this ought to be obvious to anyone who was minded to apply common sense to the issues at hand. In case of death, if the sentence is to be carried out a convict cannot be hanged twice or thrice over, he can only be hanged once and hence the necessity for leaving sentence out the other counts in abeyance. And once a person has been sentenced to die, there can be no sense in imposing on him a prison term.  We can find no sense at all in such a proposition and the long practice which we are aware of is that once a sentence of death is imposed once, the other counts are left in abeyance so that if there was a successful appeal on the count on which the death penalty has been imposed the court dealing with the appeal would consider all the counts and if necessary, impose the appropriate death sentence on the count on which the appeal is not allowed.  We hope that sentencing courts will take held of these simple requirements and act appropriately”

The case of the 1st appellant provides a good illustration of this.  If the appeal is heard and finalized before the sentence of seven years imprisonment is served, is he required to serve that sentence and complete first before the sentences of death is carried out?

[50]   Applying the above legal principles to the case before us we set aside the sentence of 7 years imprisonment to run concurrently with the death sentence as ordered by the learned trial Magistrate.  Accordingly we dismiss this appeal against convictions recorded against the Appellant on both counts.  We uphold the death sentence imposed on count 1.

Dated, signed and delivered in open court at Mombasa this 30th  day of September 2015.

………………………                                                            ……………………….

D. CHEPKWONY                                                               R. NYAKUNDI

JUDGEJUDGE

Present:

State counsel

Appellant