Bisonga v Republic (Criminal Appeal 39 of 2015) [2021] KECA 304 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a robbery with violence conviction but replaced the mandatory death sentence with 20 years' imprisonment, applying 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 offence of robbery with violence was proved beyond reasonable doubt
- 2.Whether, in view of Francis Karioko Muruatetu & Another v Republic, the mandatory death sentence under section 296(2) of the Penal Code should be set aside and the appellant resentenced
- 3.Whether the period spent in custody should be taken into account in computing the sentence
Key legal issues
#Sufficiency of proof of robbery with violence and the limited scope of a second appeal
The conviction was safe; the ingredients of the offence and identification by the complainant were established and no error of law was demonstrated.
As a second appellate court, the Court of Appeal concerns itself only with matters of law, upholding concurrent findings of fact by the trial court and the High Court unless those findings lack evidential support, rest on misapprehension of the evidence, or were made on wrong principles. Here the complainant knew his assailants, including the appellant, who cut him and took his phone; the ingredients set out in Oluoch v Republic were met. No error of law was shown against the conviction.
Resentencing in light of Muruatetu
The mandatory death sentence under section 296(2) could not stand after Muruatetu; the death sentence was set aside and substituted with 20 years' imprisonment.
The trial magistrate and the High Court could not be faulted for imposing and upholding the death sentence because Muruatetu had not been decided at the time. The Supreme Court held that a mandatory sentence is unconstitutional as it removes judicial discretion to determine an appropriate sentence case by case. Following its own precedents applying Muruatetu, the Court found it fit to interfere with the sentence and substituted 20 years, running from the date of the initial sentence in 2010.
Legal principles established
#- A second appellate court deals only with matters of law and accepts concurrent findings of fact by the two lower courts unless they are unsupported by evidence, based on misapprehension of the evidence, or made on wrong principles.
- Following Muruatetu, a mandatory sentence of death under section 296(2) of the Penal Code is an error because it takes away judicial discretion; appellate courts may interfere with such sentences on a case-by-case basis.
Court orders
#- 1.Appeal against conviction dismissed
- 2.Appeal on sentence allowed to the extent that the sentence of death meted out by the trial court and upheld by the High Court is set aside
- 3.Sentence of death substituted with a 20-year sentence to run from 29th December 2010, the date of the initial sentence by the trial court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- not stated in judgment
- Jurisdiction invoked
- Second appeal under the Criminal Procedure Code (section 361 referred to by counsel); Articles 165(3)(a)(b), 159(2)(b) and 22(4) of the Constitution invoked by the appellant
Relief refused
#Setting aside the conviction for robbery with violence
The ingredients of the offence and the appellant's identification by PW1 were established; no error of law was shown by the second appellate court
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.
We therefore dismiss the appeal against conviction. We allow it on sentence, to the extent that we set aside the sentence of death meted out by the trial court and upheld by the High court. We substitute it with a 20-year sentence to run from 29th December 2010 when the trial court passed the initial sentence.
The apex court held in that matter that a mandatory sentence is unconstitutional as it takes away judicial discretion to determine an appropriate sentence on a case by case basis.
The trial magistrate cannot, however, be faulted for sentencing the appellant to death as that is the sentence under the provisions of section 296(2) of the Penal Code.
Issues in the judgment
#The appeal number and neutral citation do not appear in the judgment text provided; the coram appears only in the delivery clause without a titled judgment author.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bisonga v Republic (Criminal Appeal 39 of 2015) [2021] KECA 304 (KLR)", Case Analysis (2021). Criminal Appeal (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/304/eng@2021-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.