REPUBLIC v ANTHONY KIARIE NJOROGE & 4 OTHERS [2007] KECA 234 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed five manslaughter convicts must serve their three-year sentences, ruling no deadline limits the Attorney General's power to seek sentence review.
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 respondents' notice of motion to strike out the Attorney General's certificate under section 379(5A) as incompetent and filed out of time should be allowed.
- 2.Whether the certificate was filed within a reasonable time, having regard to the lapse since the sentence imposed on 10th June 2004.
- 3.Whether, on the certificate, the respondents' three-year sentences for manslaughter should be enhanced as sought by the Attorney General, maintained, or corrected, and in what manner.
Key legal issues
#Is there a limitation period for lodging the Attorney General's certificate under section 379(5A)?
No. The section prescribes no time limit; the one-month rule in section 379(5) applies to acquitted persons, not certificates against sentences. Reasonableness falls to be judged by the court in all the circumstances, and on the facts the delay was explicable because the respondents evaded service.
The subsection reproduced by the Court contains no limitation clause, unlike section 379(5), which governs persons acquitted at trial and which respondents' counsel apparently invoked for his one-month objection. Reasonableness therefore falls to be judged in all the circumstances. The Court accepted the State's account that the respondents evaded service despite an order of 31st January 2007 directing the Director of CID to serve them, so that warrants of arrest issued on 7th March 2007 before they surrendered to bail. The lapse of roughly two years was accordingly not unreasonable.
Was the order deeming the sentence to commence from the date of the offence lawful?
No. A sentence cannot commence before conviction. Following its decision in the co-accused Gichiri's appeal, the Court corrected the defect by directing that the three-year terms run from the date of its judgment.
The trial judge deemed the three-year term to commence on 27th April 2002, the date of the offence, so the respondents, who never appealed, served nothing. This Court had already condemned the same device when dismissing the co-accused Gichiri's appeal, holding that custody before sentence may be credited but service cannot precede conviction. Adopting that reasoning, the Court held the respondents' sentences ought to be interfered with on that point alone and directed that their prison terms start soon after its judgment, with bonds cancelled.
Should the three-year sentences be enhanced on revision?
No. There was no error of principle in the three-year term. Batista Ligoni Beni was distinguishable because that killing involved vicious panga attacks bordering on murder, whereas here there was no intention to kill; Mutuku v R was distinguishable because the delay here was explained.
Section 379(5A) confers revisionary powers to be exercised with regard to sentencing principles; discretion must be judicial and grounded in evidence. The trial judge, who heard the evidence, found no malice aforethought in a drunken village brawl that turned into a fatal beating. Unlike Batista Ligoni Beni, where vicious panga slashes bordered on murder and five years became fifteen, here there was no intention to kill. Unlike Mutuku v R, the delay was explained and the Court was correcting an error of law rather than enhancing. Enhancement was therefore refused.
Was the certificate incompetent because signed by the Director of Public Prosecutions?
Not determined. The ground was abandoned after counsel conceded that Legal Notice No. 331 of 1996 delegated the Attorney General's powers under sections 81, 82 and Part VII of the Criminal Procedure Code.
Counsel for the respondents abandoned the complaint that the certificate was signed by the Director of Public Prosecutions, conceding Legal Notice No. 331 of 1996 delegated the Attorney General's powers under sections 81, 82 and Part VII of the Criminal Procedure Code. He further conceded the Attorney General enjoys no right of appeal, rendering any purported out-of-time appeal application nugatory. The strike-out therefore survived only on the limitation ground, which failed. The point was resolved by concession, not decision, and so states no ratio.
Legal principles established
#- A certificate of the Attorney General under section 379(5A) of the Criminal Procedure Code is not subject to any statutory limitation period; whether the time taken to lodge it is reasonable is for the court to determine in all the circumstances.
- A sentence may not be ordered to commence before conviction; pre-conviction custody may be credited in assessment, but a deemed commencement predating conviction is illegal and will be corrected on appeal or revision.
- Sentencing is discretionary but must be exercised judicially, guided by evidence and sound legal principles, taking into account all relevant factors and excluding extraneous or irrelevant ones; the Court of Appeal reviews sentences under section 379(5A) against those principles.
- Where a sentence is lawful in principle but defective only in its commencement, the revisionary court will correct the defect and direct service from the date of its judgment rather than enhance the term.
Court orders
#- 1.The respondents' notice of motion seeking to strike out the Attorney General's certificate is dismissed.
- 2.Anthony Kiarie Njoroge, David Njoroge Kamande, Kennedy Kamau Ndungu, John Mwangi Murigi and Anthony Mutune Kamande shall serve the sentence of three years' imprisonment imposed on 10th June 2004 in High Court Criminal Case No. 67 of 2003, with effect from the date of this judgment (12th October 2007).
- 3.The bonds granted to each of the five respondents are cancelled forthwith.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- High Court Criminal Case No. 67 of 2003
- Jurisdiction invoked
- Section 379(5A) of the Criminal Procedure Code (Cap 75) - certificate of the Attorney General that a sentence passed by the High Court in the exercise of its original jurisdiction should be reviewed by the Court of Appeal
Relief refused
#Enhancement of the respondents' three-year sentences as sought by the Attorney General
The Court found no error of principle in the three-year term, distinguished the brutality of Batista Ligoni Beni, and saw no compelling reason to enhance.
The respondents' notice of motion to strike out the certificate as out of time and incompetent
Section 379(5A) prescribes no limitation period and reasonableness is for the court; the incompetence ground was abandoned on concession of the delegation in Legal Notice No. 331 of 1996.
The respondents' plea that their sentences not be revived on account of the delay and their newly found careers
The delay was explicable and the Court was correcting an error of law and principle rather than enhancing, so the respondents must serve from the date of judgment.
Costs
No order as to costs; the judgment makes no mention of costs.
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.
That section which we reproduced earlier, makes no provision for limitation of time and it is therefore up to the court to consider in all the circumstances what is reasonable.
while a court may take into account the period that an accused person has spent in custody while assessing sentence, it would be illegal to order an accused person to start serving a sentence before conviction
Sentencing is a matter for the discretion of the trial Judge. The discretion must however, be exercised judicially. The trial Judge must be guided by evidence and sound legal principles. He must take into account all relevant factors and exclude all extraneous or irrelevant factors.
In our view, there was no error in principle in meting out a three year sentence of imprisonment on each respondent.
The notice of motion filed by the respondents is thus for dismissal and we so order.
The upshot is that the following persons, who were convicted on 10th June 2004 for the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code in High Court Criminal Case No. 67 of 2003, shall serve the sentence of three years imposed in that Case with effect from the date of this judgment
The bonds granted to each of the five accused persons shall be cancelled forthwith.
Issues in the judgment
#The judgment refers to the same 1981 authority inconsistently, first as 'Mutuku vs. R [1981] KLR 532' and later as 'the Mutua Case (supra)', leaving the correct case name uncertain.
The cause is docketed as 'Criminal Appeal 236 of 2005' but is in substance a revision by Attorney General's certificate, which the court expressly notes is not an appeal; the styling may affect record matching.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- African Gas and Oil Limited v Kahia Transporters Limited & 6 others; County Government of Mombasa & 2 others (Interested Parties) (Environment & Land Case E012 & E004 of 2023 (Consolidated)) [2025] KEELC 3139 (KLR)[2025] KEELC 3139 (KLR)4 Apr 2025
- Francis Mburugu Muchena v Republic [2011] KECA 31 (KLR)[2011] KECA 31 (KLR)28 Oct 2011followed
Cite this brief
#Cite this brief
Caselaw, "REPUBLIC v ANTHONY KIARIE NJOROGE & 4 OTHERS [2007] KECA 234 (KLR)", Case Analysis (2007). Criminal Appeal 236 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/234/eng@2007-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.