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Court of AppealPartially AllowedCriminal Appeal No. 368 of 2007

David Mwangi Mugo v Republic [2011] KECA 283 (KLR)

Court of Appeal of Kenya
8 April 2011
Philip Kiptoo TunoiP. K. TunoiDAD. K. S. AganyanyaAVAlnashir Visram
1,696 words in judgment
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The bottom line

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Kenya's Court of Appeal replaced a death sentence for attempted robbery with seven years' imprisonment, holding offenders deserve the less punitive sentence when laws conflict.

What this practically means

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Executive summary

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This was a second and final appeal to the Court of Appeal at Nairobi by David Mwangi Mugo, who had been convicted of attempted robbery with violence contrary to section 297(2) of the Penal Code and unlawful possession of a firearm, and sentenced to death on the first count. His first appeal to the High Court (Lesiit and Makhandia, JJ.) had been dismissed. On this second appeal, confined by section 361(1)(b) of the Criminal Procedure Code to matters of law, the appellant relied on only two grounds: the legality of the death sentence and the failure of the courts below to consider his defence. The Court found the defence ground without merit, noting that the trial court and the first appellate court had each expressly considered and rejected the defence. On sentence, the Court found an apparent conflict between section 297(2) of the Penal Code, which prescribes death for attempted robbery with violence, and section 389 of the same Code, which caps the sentence for attempting to commit a felony punishable by death at seven years' imprisonment. Following its recent decision applying Godfrey Ngotho Mutiso v Republic, in which the mandatory death sentence was declared inconsistent with the Constitution, and with the State conceding the point, the Court held the appellant entitled to the less punitive sentence. The appeal on conviction was dismissed, the death sentence was set aside and seven years' imprisonment substituted, running from the date of conviction on 28th November 2002 and concurrently with the three-year sentence on the second count.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the two courts below considered the appellant's defence
  2. 2.Whether the sentence of death prescribed by section 297(2) of the Penal Code is lawful given the conflict with section 389 of the Penal Code on sentences for attempts to commit a felony

Key legal issues

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01

Whether the appellant's defence was considered by the courts below

Holding

Both courts below considered and properly rejected the appellant's defence; this ground fails

Reasoning

The Court perused the record and found that the trial magistrate expressly dismissed the unsworn defence accounts as negated by the prosecution evidence, and the superior court on first appeal considered the defence afresh and found it a mere denial. There was therefore no merit in the complaint that the defence was ignored.

p. 2
02

Legality of the death sentence under section 297(2) of the Penal Code given section 389's cap on sentences for attempts

Holding

There is an apparent conflict between section 297(2), prescribing death, and section 389, capping the sentence for attempted felonies at seven years; the appellant is entitled to the less punitive sentence. The death sentence was set aside and seven years imprisonment substituted.

Reasoning

The Court found an apparent conflict between the two provisions on sentence. Relying on a recent decision of the Court and Godfrey Ngotho Mutiso v Republic, where the mandatory death sentence was declared unconstitutional, and with the State's concession, the Court held the appellant entitled to the less punitive sentence, substituting seven years imprisonment backdated to conviction, running concurrently with the count 2 sentence.

p. 3

Legal principles established

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  • Where two penal provisions conflict on sentence, the offender is entitled to the less punitive of the two sentences
  • On a second appeal under section 361(1)(b) of the Criminal Procedure Code, legality of sentence is an issue of law within the court's jurisdiction

Court orders

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  1. 1.Dismissal of the appeal on conviction
  2. 2.Setting aside of the sentence of death and substitution of a sentence of seven years imprisonment running from 28th November 2002
  3. 3.The three-year imprisonment sentence on count 2 to run concurrently with the substituted sentence

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philip Kiptoo Tunoi
majority

Wrote the judgment

DA
majority

Wrote the judgment

AV
majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
H.C. CR. A. No. 1263 of 2002
Jurisdiction invoked
Second and final appeal under section 361(1)(b) of the Criminal Procedure Code, limited to matters of law

Relief refused

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Appeal against conviction

Both courts below considered and rejected the appellant's defence; the evidence against him was overwhelming

p. 3

Costs

No costs order made

Quotable passages

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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 result we dismiss the appeal on conviction and allow the appeal on sentence. We set aside the sentence of death imposed on the appellant and substitute therefor a sentence of seven years imprisonment.
p. 3Final orders - appeal on conviction dismissed, sentence varied
The apparent conflict in the law may only be resolved by Parliament. But the appellant is entitled to the less punitive of the two sentences
p. 3Conflict between section 297(2) and section 389 of the Penal Code
We are satisfied that the evidence against the Appellant was overwhelming and that his defence was a mere denial without merit.
p. 2First appellate court's treatment of the defence

Issues in the judgment

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minor

The judgment dates the offence as 13th June 2001 in the findings-of-fact passage, but the charge particulars state 13th January 2001

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "David Mwangi Mugo v Republic [2011] KECA 283 (KLR)", Case Analysis (2011). Criminal Appeal No. 368 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/283/eng@2011-04-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.