After spending 18 years behind bars, Luli Adu Luli alias Adu Ibrahim Luli is finally a free man.
The Court of Appeal in Mombasa ruled that he should never have been sentenced to death, because he was only 17 years old when he was convicted of robbery with violence in 2006.
In an emotional judgment delivered in Malindi, Justices Kibaya Imaana Laibuta, F Ochieng, and Ngenye-Macharia acknowledged the ordeal Luli had endured.
“We find it necessary to intervene,” the court declared. “The appellant (Luli) has now been in custody for approximately 18 years since the time of his arrest in 2006… It would be imprudent to subject him to detention at the President’s pleasure.”
The ruling not only set aside his death sentence but also acknowledged the weight of lost time, being nearly two decades of a young man’s life.
Night attack at Mtomondoni in Mtwapa
The case stemmed from a robbery incident that occurred on the night of January 20, 2006, at Mtomondoni Village in Mtwapa, Kilifi District.
According to the complainant, Justus Njoroge Mbugua, he had just closed his business and was heading home when two men attacked him.
“They hit me with metal rods and stones,” Mbugua testified.
He said the attackers robbed him of a mobile phone, cash, a shirt and a cap - items collectively worth Sh10,050.
The incident was reported to police shortly after.
Swift police response and arrest
The case quickly picked up steam following Mbugua’s report.
A taxi driver testified that he was the one who took Mbugua home and then to the police station to report the attack.
The police investigation led to a raid on Luli’s home, where a shirt and cap belonging to Mbugua were recovered.
An identification parade was conducted, during which Mbugua positively picked out Luli as one of his attackers.
Although Luli claimed he was forced to participate in the parade, the court found no evidence to support this claim.
Medical evidence supports the attack
To bolster the case, a doctor produced a medical report confirming the injuries sustained by Mbugua.
The P3 form listed visible injuries, consistent with the violent nature of the attack he had described.
Trial and sentencing
The trial court found Luli guilty of robbery with violence under Section 296(2) of the Penal Code, which mandates a death sentence for the offence.
His co-accused, Dume Malumbo Chai, was acquitted.
Luli denied all charges, claiming he was at home asleep during the attack.
He also argued that the house where the items were recovered was not his, and that the prosecution had not proved ownership of the shirt and cap.
Nevertheless, the court found the evidence of recognition, the identification parade, and the recovered items sufficient to convict.
Appeal to the High Court
Luli appealed the conviction and sentence to the High Court, but the two-judge bench comprising Justices Njagi and H A Omondi dismissed the appeal in 2009.
The High Court upheld the trial court's findings and affirmed the death sentence.
Dissatisfied, Luli launched a second appeal to the Court of Appeal in 2023, raising several legal issues, including that he was a minor at the time of the offence.
Age becomes a key issue
Luli’s lawyer, Ngumbao Mutua, emphasised that his client was born on February 4, 1990, making him 17 at the time of the offence in January 2006.
He argued that the trial court failed to conduct an age assessment or consider the protections afforded to minors under the Children's Act.
“The appellant ought to have been afforded the protection of the law under the Children’s Act,” Mutua submitted.
The prosecution opposed the appeal.
She argued that the age claim was an afterthought, only raised during the second appeal and without supporting documents.
But the Court of Appeal found that Luli had stated his date of birth in his unsworn defence during the trial and that the trial court had failed to act on it.
Doctrine of recent possession
Another contentious issue was the application of the doctrine of recent possession.
Mbugua’s cap and shirt were found in Luli’s house shortly after the robbery.
Luli disputed that the items were uniquely identifiable or proven to be his.
However, the court found that the doctrine applied.
“There must be positive proof… that the property was found with the suspect; that the property is positively the property of the complainant; and that it was recently stolen,” the judges stated, citing case law.
They ruled that the items were recovered in Luli’s house and had been positively identified by Mbugua, strengthening the case.
Identification was key
Luli also argued that the identification parade was flawed and that conditions during the robbery were not ideal for a proper identification.
But the court noted that Mbugua already knew Luli from before and had sufficient opportunity to recognise him during the attack.
“We find that the High Court was correct in finding that the identification by recognition was reliable,” the bench ruled.
Sentence overturned
The court acknowledged that although Luli was 17 years old at the time, the trial court had failed to conduct an age assessment or treat him as a minor, a critical omission given the mandatory death sentence.
Under Section 191 of the Children Act, minors cannot be sentenced to death and should be dealt with through other lawful methods such as rehabilitation, probation, or vocational training.
“We are satisfied that the appellant ought to have been treated as a child under the Children Act,” the ruling said.
“The sentence imposed upon the appellant was unlawful.”
The Court replaced the death sentence with the time already served, noting that Luli had spent 18 years in custody- a substantial period for a minor offender.
Freedom at last
With the ruling, the court ordered that Luli be released immediately unless otherwise lawfully held.
His appeal on conviction was dismissed, but his sentence was overturned, bringing an end to a lengthy legal battle that began when he was just 17 years old.
“For that reason, the appellant is hereby set at liberty forthwith unless otherwise lawfully held."
