Alfred Mbuvi Munyu & another v Republic
The bottom line
#Kenya's Court of Appeal confirmed that new laws do not apply to old cases unless Parliament says so explicitly.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the conviction of the appellants for common assault was supported by the evidence
- 2.Whether the learned trial Judge failed to consider the case for the defence, rendering the judgment fatally flawed
- 3.Whether the Attorney General's certificate under section 379(5A) of the Criminal Procedure Code empowered the Court of Appeal to review the sentence
- 4.Whether the sentence imposed by the trial court was erroneous
Key legal issues
#Sufficiency of evidence for the common assault conviction
The conviction was supported by overwhelming evidence; the claim that others might have inflicted the injuries was a ploy to exculpate the appellants
The Court re-evaluated the first-instance evidence as on a first appeal, including the sworn testimony of the appellants. Neighbours' evidence established the appellants severely beat the deceased in his locked room. The trial Judge's disbelief of the claim of reasonable arrest force was upheld, the Court being itself satisfied beyond reasonable doubt that excessive and unlawful force was used.
Whether the trial Judge failed to consider the defence case
The complaint had no merit; the trial judgment expressly considered the defence of no necessity to use force and the absence of an alibi
The Court distinguished Joseph Njaramba Karura v Republic, where the trial Judge had ignored the appellant's statement. Here the trial Judge set out the charge particulars, noted the absence of an alibi, quoted the appellants' sworn evidence on the force used, and analysed the neighbours' evidence before concluding no force was necessary. The judgment therefore engaged with the defence.
Applicability of section 379(5A) of the Criminal Procedure Code
The section, enacted in 1990 with no retrospective effect, could not apply to a 1986 offence and 1989 sentence; the certificate conferred no power to review the sentence
The section was enacted by Act No 7 of 1990, assented to on 18th June 1990 and commenced on 22nd June 1990. Neither it nor the other amendments were expressed to be retrospective. Applying the presumption against retrospectivity, the Court held the certificate could not empower review of a sentence passed before commencement.
Correctness of the sentence of a fine of Shs 10,000/-
No error of principle in the exercise of the trial Judge's unfettered sentencing discretion; the sentence met the interests of justice
Section 251 of the Penal Code prescribes a maximum of five years for assault causing actual bodily harm, and section 26(3) permits a fine in substitution for imprisonment. Following Mita v Rep, a fine is not wrong unless circumstances irresistibly preclude it. Mitigation (age, two years on remand, loss of employment, family responsibilities, first offenders) was considered by the trial Judge.
Legal principles established
#- A statutory provision is not retrospective unless expressly so stated; section 379(5A) of the Criminal Procedure Code cannot apply to offences and sentences predating its commencement
- On a first appeal the Court of Appeal analyses and evaluates the evidence afresh and may consider sentence notwithstanding the invalidity of a section 379(5A) certificate
- It is not wrong to impose a fine for assault causing actual bodily harm unless the circumstances irresistibly preclude that mode of punishment
Court orders
#- 1.Appeal against conviction dismissed
- 2.Appellants released from custody to which they had been committed pending judgment
- 3.Sentence of a fine of Shs 10,000/- (default six months imprisonment) left undisturbed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- Criminal Case No 22 of 1988
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Criminal Procedure Code; the Attorney General's certificate under section 379(5A) of the Criminal Procedure Code was held not to apply
Relief refused
#Review/enhancement of sentence pursuant to the Attorney General's certificate under section 379(5A)
The provision, enacted in 1990 without retrospective effect, could not apply to an offence committed in 1986 and sentence passed in 1989
Appeal against conviction
Conviction was supported by overwhelming evidence and the trial Judge considered the defence case
Costs
No costs order made in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the light of all that we have said we find no merit in this appeal and order it to be dismissed. We accordingly order that the appellants be released from custody to which we committed them pending this judgment.
We accordingly hold that the certificate of the Attorney General does not, in this case, empower this Court to review the sentence.
neither this provision nor indeed any of the amendments were expressed to have any retrospective effect.
We are therefore satisfied that the appellants were convicted on overwhelming evidence of the assault on the deceased and reject the appeal against conviction.
We do not with respect, find any error of principle in the learned judge's exercise of discretion. We therefore find no basis for complaint about the sentence which in our view met the interests of justice.
Issues in the judgment
#Offence date stated as 23rd January 1986 is inconsistent with the case number Criminal Case No 22 of 1988
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alfred Mbuvi Munyu & another v Republic", Case Analysis (1992). Criminal Appeal No 13 of 1990. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1992/66/eng@1992-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.