How a Courtroom Error Set Free Two Men on Death Row
The Court of Appeal has quashed the convictions and death sentences of two men previously convicted of robbery with violence and gang rape, ordering their immediate release.
Benard Ingunza and David Libabu were originally convicted in 2009 for attacking a woman in her home in Kivagala, Vihiga County. The pair allegedly stole household items, livestock, electronics, and cash worth Sh22,450 before assaulting the victim. A magistrate’s court sentenced them to death for the crimes.
The High Court in Kakamega upheld the convictions in 2013, citing credible identification evidence and the recovery of stolen property. The complainant, identified as Ms JI, testified that she recognised the assailants from her neighbourhood, and her account was accepted as consistent and reliable.
The convictions were overturned on appeal after the defendants successfully argued that the High Court bench that heard their appeal lacked jurisdiction. The panel included Justice Hellen Wasilwa, a judge assigned to the Employment and Labour Relations Court, who does not have the authority to hear criminal appeals.
Justice Juma Chitembwe, the other judge on the bench, was properly assigned. Both defence and prosecution counsel acknowledged the error. The Court of Appeal stressed that a court must have proper authority to proceed, saying, “Jurisdiction is everything.”
Because the High Court bench was improperly constituted, its decision was declared null and void. Normally, the case would have been retried before a correctly appointed bench. However, the appellate court ruled that a retrial would be unjust, given the long time Ingunza and Libabu had already spent in custody.
The court therefore quashed the convictions and death sentences and ordered their immediate release.
