Obwori Erick Muturi v Republic [2019] KECA 577 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed death sentences for robbery with violence can be set aside and replaced with individualized sentences after 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 appeal against conviction, having been abandoned by counsel, should be dismissed
- 2.Whether the appellant is entitled to a sentence re-hearing in light of Muruatetu as applied to robbery with violence
- 3.What orders should issue on the sentences of death in counts II and III
Key legal issues
#Entitlement to sentence re-hearing where death sentence was mandatory
Following Muruatetu, a person sentenced to death under the formerly mandatory provisions is entitled to a sentence re-hearing so that an appropriate individualized sentence may be imposed.
The trial magistrate imposed the death sentence solely because it was mandatory, and the High Court declined to interfere for the same reason. After Muruatetu declared the mandatory death sentence unconstitutional, and given Kittiny's extension of that ruling to robbery with violence under sections 296(2) and 297(2), the appellant could invoke Articles 50(2)(q) and 165(3)(b) to have an appropriate sentence imposed in his situation. Mitigation factors per the Muruatetu guidelines would inform the re-hearing.
Abandonment of appeal against conviction
Where the appellant, through counsel, abandons the appeal against conviction, that appeal is dismissed and only the sentence appeal proceeds.
Counsel Mr. Dome expressly instructed that the appeal against conviction be abandoned and sought to proceed only on sentence. The Court accepted this position and dismissed the conviction appeal accordingly, confining its consideration to the sentences in counts II and III, which had been imposed mandatorily and affirmed by the High Court save for the sentence in count III held in abeyance.
Legal principles established
#- The impact of Muruatetu applies mutatis mutandis to sentences for robbery with violence under sections 296(2) and 297(2) of the Penal Code, entitling convicted persons to individualized sentencing on re-hearing
Court orders
#- 1.Appeal against convictions dismissed (having been withdrawn)
- 2.Appeal against sentences allowed
- 3.Sentences of death in count II and count III set aside
- 4.Case remitted to the Chief Magistrate - Machakos for sentence hearing and sentencing only
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Machakos
- H.C.C.R.A No. 50 of 2011
- Jurisdiction invoked
- First appellate/appellate review of sentence following Muruatetu; appellant entitled under Articles 50(2)(q) and 165(3)(b) of the Constitution to a sentence re-hearing
Relief refused
#Appeal against conviction
Counsel informed the court he had been instructed to abandon the appeal against conviction and to proceed on sentence only
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 premises, the appeal against convictions having been withdrawn is dismissed. The appeal against sentences is allowed. The sentences of death in count II and III are set aside. The case is remitted to the Chief Magistrate - Machakos for sentence hearing and sentencing only.
We therefore agree that following the decision in Muruatetu, the appellant is entitled, under Articles 50(2)(q) and 165(3)(b) of the Constitution to a sentence re-hearing so as to have an appropriate sentence imposed in his situation.
this Court in William Okungu Kittiny vs. Republic [2018] eKLR held that the impact of the Muruatetu Case apply mutatis mutandis to robbery with violence under Section 296 (2) and 297 (2) of the Penal Code.
In view of the new development of the law, and in the circumstances of this case, it is just that a sentence rehearing should be conducted to determine the appropriate sentence.
Issues in the judgment
#Internal inconsistency in the registration number of the robbed motor vehicle - the charge particulars state KBC 763F while the narrative of the prosecution case states KBA 763F
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Obwori Erick Muturi v Republic [2019] KECA 577 (KLR)", Case Analysis (2019). Criminal Appeal No 78 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/577/eng@2019-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.