Joseph Mwendo Katete v Republic [2019] KECA 682 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed the death sentence is no longer mandatory for robbery with violence, restoring a 14-year prison term.
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 death sentence imposed by the first appellate court under section 296(2) of the Penal Code was proper in light of the Supreme Court decision in Francis Karioko Muruatetu & another v Republic
- 2.Whether the appeal against sentence, the only ground pursued after abandonment of the appeal against conviction, should be allowed
Key legal issues
#Applicability of Muruatetu to the mandatory death sentence under section 296(2) of the Penal Code
The death sentence for robbery with violence is no longer mandatory; trial courts retain sentencing discretion including the imposition of any lesser sentence
Although the Supreme Court decided Muruatetu in a murder case, the court held the reasoning applies identically to section 296(2) of the Penal Code, which, like section 204 for murder, provides that a convicted person 'shall be sentenced to death'. The Supreme Court having declared the mandatory death sentence unconstitutional in principle, the same discretion must apply to robbery with violence, requiring consideration of circumstances and mitigating factors.
Whether the enhanced death sentence imposed by the High Court should stand
The death sentence was set aside because it was founded on the erroneous view that the sentence was mandatory, and the trial magistrate's 14-year sentence was restored
The trial magistrate had exercised discretion properly, considering the circumstances and the appellant's lack of previous convictions, and imposed 14 years imprisonment. The High Court's enhancement to death rested solely on the mandatory-sentence premise, which no longer obtains after Muruatetu. The court therefore allowed the appeal against sentence and restored the original sentence to run from the date of trial sentencing.
Legal principles established
#- The holding of the Supreme Court in Muruatetu that the death sentence is not mandatory applies equally to the mandatory death sentence for robbery with violence under section 296(2) of the Penal Code; trial courts must exercise sentencing discretion considering mitigating factors
- A first appellate court may not enhance a sentence to the mandatory death on the basis that the sentence under section 296(2) is mandatory, that position having been displaced by Muruatetu
Court orders
#- 1.Appeal against sentence allowed
- 2.Sentence of death imposed by the first appellate court set aside
- 3.Substituted thereto a sentence of 14 years imprisonment effective from 19th January, 2012, being the date of sentencing by the trial magistrate
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HCCRA No. 20 of 2012
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Criminal Procedure Code (criminal appellate jurisdiction); appeal against sentence only after abandonment of conviction appeal
Relief refused
#Appeal against conviction
Abandoned by the appellant at the hearing, so the court's mandate was limited to sentencing
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.
Thus, the judgment of the Supreme Court that the death sentence is not mandatory, is equally applicable to the sentence provided under section 296(2) for the offence of robbery with violence.
In other words, the trial court should exercise its discretion based on the circumstances before it including the mitigating factors.
We would therefore allow the appellant's appeal against sentence, set aside the sentence of death imposed on the appellant by the first appellate court, and substitute thereto, a sentence of 14 years imprisonment effective from 19th January, 2012, being the date of sentencing by the trial magistrate.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Mwendo Katete v Republic [2019] KECA 682 (KLR)", Case Analysis (2019). Criminal Appeal No. 79 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/682/eng@2019-04-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.