Robert Odhiambo Akumu v Republic [2019] KECA 168 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a robbery with violence conviction but replaced the death sentence with 20 years' imprisonment under the Muruatetu decision.
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 prosecution proved the ingredients of the offence of robbery with violence under section 296(2) of the Penal Code, particularly whether the money alleged to have been stolen was proved to exist
- 2.Whether the death sentence imposed was inhuman and unconstitutional following Muruatetu, and whether it should be reviewed
Key legal issues
#Whether the ingredients of robbery with violence under section 296(2) of the Penal Code were proved, including proof that the money was actually stolen
Yes. The evidence showed the appellant attacked the complainants with a panga immediately before demanding and taking their money; the element of stealing was proved through the evidence of PW6 confirming the first complainant had borrowed Kshs. 20,000 and the second complainant handing over Kshs. 10,200 to save his life.
The court applied the ingredients in section 296(2) and the Johana Ndungu formulation: being armed with a dangerous weapon, or wounding or using personal violence at or immediately before or after the robbery. The attack with a panga, the P3 forms showing grievous harm, and the evidence establishing possession of the money proved all elements. Concurrent findings of fact by the two courts below could not be disturbed on a second appeal absent absence of evidence.
Whether the alleged grudge arising from a boundary dispute showed the charges were fabricated
Rejected as an afterthought because it was not canvassed during the trial.
The appellant contended the charges arose from a boundary dispute. The court held that since this issue was not raised or canvassed at trial, it could not be introduced for the first time on appeal; the defence of fabrication therefore failed.
Whether the death sentence should stand in light of Muruatetu
No. The court substituted the death sentence with 20 years' imprisonment running from the date of conviction and sentence in the trial court.
The Supreme Court in Muruatetu declared the mandatory nature of the death sentence unconstitutional, though courts retain discretion to impose the death sentence in deserving cases. Because the appellant sought review of sentence and despite the heinous manner of the offence urged by the respondent, the court exercised its discretion in favour of a 20-year custodial sentence running from the date of conviction and sentence in the trial court.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to points of law and will not interfere with concurrent findings of fact of the two lower courts based on evidence; the test is whether there was any evidence on which the trial court could find as it did
- Any one of the three circumstances in section 296(2) of the Penal Code - being armed with a dangerous weapon, being in company with others, or wounding/beating/striking/using personal violence at or immediately before or after the robbery - if proved, constitutes the offence of robbery with violence
- Following Muruatetu, where the mandatory death sentence was declared unconstitutional, a court retains discretion to substitute a custodial sentence where an appellant seeks review of sentence
Court orders
#- 1.The appeal against conviction is dismissed in its entirety
- 2.The sentence of death is substituted with a custodial sentence of 20 years' imprisonment to run from the date of conviction and sentence in the trial court
- 3.It is so ordered (judgment dated and delivered at Kisumu on 21st November 2019)
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 Homabay
- HCCRA No. 134 of 2014
- Jurisdiction invoked
- Second appeal to the Court of Appeal under Section 361(2) of the Criminal Procedure Code, confined to points of law
Relief refused
#Appeal against conviction on both counts of robbery with violence
The ingredients of the offence were proved to the required standard and the court would not disturb concurrent findings of fact on a second appeal
Costs
No costs order was made in this criminal appeal
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.
A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below based on evidence.
As this is a second appeal, only points of law may be raised since this Court will not disturb concurrent findings of facts made by the two courts below unless those findings are shown to be based on no evidence
In the upshot, having regard to the circumstances of this case, we uphold the decision of the High Court and dismiss the appeal against conviction, but we substitute the sentence of death with 20 years' imprisonment to run from the date of conviction and sentence in the trial court.
Issues in the judgment
#Internal inconsistency in the date of the first offence: the charge particulars state the robbery of the first complainant occurred on 28th August 2013, but the judgment later narrates her evidence as occurring on 28th March 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Robert Odhiambo Akumu v Republic [2019] KECA 168 (KLR)", Case Analysis (2019). Criminal Appeal No. 157 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/168/eng@2019-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.