William Taribo Mukenya v Republic [2021] KECA 1040 (KLR)
The bottom line
#Kenya's Court of Appeal replaced a death sentence for robbery with violence with 30 years' imprisonment, confirming courts can now choose lesser sentences.
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 Court of Appeal on second appeal, limited to matters of law under section 361(1)(a) CPC, may interfere with a mandatory death sentence imposed for robbery with violence in light of Muruatetu
- 2.Whether the death sentence imposed on the appellant should be set aside and reviewed
Key legal issues
#Scope of second appeal under section 361(1)(a) CPC
The Court's mandate on second appeal is limited to matters of law only; matters pertaining to sentence are matters of fact, but this does not preclude review of sentence where jurisprudential changes permit
The Court accepted the State's submission that section 361(1)(a) confines a second appeal to matters of law, with concurrent findings of fact binding. It nonetheless held that the single ground raised - the legality of the sentence in light of Muruatetu - was a matter the Court could pronounce on, given the established jurisprudential trend allowing sentence rehearings.
Effect of Muruatetu on mandatory death sentence for robbery with violence
The mandatory death sentence under section 296(2) of the Penal Code is a discretionary maximum punishment following Muruatetu as applied in Kittiny and related decisions
Relying on Raphael Mourice Muriu Ngoya, William Okungu Kittiny and Wycliffe Wangusi Mafura, the Court held that the Supreme Court's holding in Muruatetu paragraph 69 applies mutatis mutandis to sections 296(2) and 297(2) of the Penal Code, so death is a discretionary maximum, enabling sentence review.
Whether to resentence directly or remit
Given the appellant had been in prison over nine years, the Court elected to review the sentence itself rather than remit, substituting thirty years imprisonment
The Court found this an appropriate case for sentence review: the property robbed was worth Kshs.4,500, the victim recovered without major disability, and mitigation was never considered because the death penalty was mandatory at the time. Considering the victim was the appellant's mother, a deterrent term of imprisonment best served justice.
Legal principles established
#- On a second appeal the Court is confined to matters of law and is bound by concurrent findings of fact of the two courts below unless those findings were not backed by evidence, based on a misapprehension of the evidence, or made on wrong principles
- Following Muruatetu, the sentence of death under sections 296(2) and 297(2) of the Penal Code is a discretionary maximum punishment, not a mandatory sentence, and courts may direct sentence rehearings
- An appellate court reviewing a mandatory death sentence may either set aside the sentence and resentence itself or remit the matter to the High Court for resentencing, considering the value of property robbed, gravity of injuries, and whether the accused had a chance to mitigate
Court orders
#- 1.The death sentence imposed against the appellant is set aside
- 2.A sentence of thirty (30) years imprisonment is substituted for the death sentence
- 3.The appeal succeeded only to the limited extent of the sentence review
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 Kakamega
- CRA No. 110 of 2013
- Jurisdiction invoked
- Second appeal under section 361(1)(a) of the Criminal Procedure Code, limited to matters of law
Relief refused
#Interference with the conviction
The conviction was not challenged and the Court's mandate on second appeal is limited to matters of law; the appeal succeeded only on sentence
Costs
No costs order recorded 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.
Accordingly, we set aside the death sentence imposed against the appellant and substitute it with a sentence of thirty (30) years imprisonment. The appeal has therefore succeeded only to this limited extent.
Thus the Sentence of death Under Section 296(2) and 297(2) of the Penal Code is a discretionary maximum punishment.
On second appeal, the Court should focus on points of law accepting and being bound by the concurrent findings of fact by the two courts below, unless those findings were not backed by evidence, or are based on a misapprehension of the evidence, or the two courts are shown demonstrably to have acted on wrong principles in making those findings.
the decision of the Supreme Court in Muruatetu’s case has immediate and binding effect on all other courts and that the decision did not prohibit courts below it from ordering sentence rehearing in any matter pending before those courts.
Issues in the judgment
#The High Court judgment quoted within the judgment states the appeal 'lacks any merit and is hereby dismissed' and affirms conviction and sentence, yet this Court varies the sentence; the High Court also cites Mwaura upholding the mandatory death penalty, which this Court departs from via Muruatetu - not an internal contradiction of this judgment but a tension between the courts below and this Court.
The judgment states the appeal was delivered at NAIROBI though the appeal is filed in the Court of Appeal at Kisumu.
Typographical errors in the judgment text: 'in prison of rover 9 years' and 'one-moth baby'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "William Taribo Mukenya v Republic [2021] KECA 1040 (KLR)", Case Analysis (2021). Criminal Appeal No. 141 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/1040/eng@2021-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.