Akungwi v Republic (Criminal Appeal 81 of 2019) [2024] KECA 222 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that the mandatory death penalty for robbery with violence remains lawful, as the Muruatetu decision applies only to murder.
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 meted on the appellant was harsh in the circumstances, given that the mandatory death penalty under section 296(2) of the Penal Code for robbery with violence falls outside Muruatetu 1
Key legal issues
#Whether the mandatory death sentence under section 296(2) of the Penal Code for robbery with violence was rendered unconstitutional by Muruatetu 1
It was not. The Supreme Court clarified in Muruatetu 2 that Muruatetu 1 applies only to murder under sections 203 and 204 of the Penal Code, so the mandatory death sentence for robbery with violence remains valid and the conviction and death sentence stand.
The appellant abandoned his conviction challenge and relied solely on Muruatetu 1 to attack the mandatory death sentence. The Court noted that courts had applied Muruatetu 1 broadly to all mandatory sentences, but the Supreme Court's clarifying decision in Muruatetu 2 confined its ratio to the offence of murder. Consequently the mandatory death penalty for robbery with violence under section 296(2) remains a lawful sentence, leaving no basis to interfere with the sentence imposed.
The scope of a second appeal
A second appeal is confined to matters of law under section 361(1)(a) of the Criminal Procedure Code; the Court will not disturb concurrent findings of fact absent a misapprehension of the evidence or wrong principles.
Relying on section 361(1)(a) of the Criminal Procedure Code and Karingo v Republic, the Court reiterated that on a second appeal it considers only points of law and will not interfere with concurrent findings of fact of the two courts below unless there was no evidence on which the trial court could find as it did. The appellant having abandoned his conviction grounds, no arguable point of law survived except the sentence issue.
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
- Muruatetu 1 declared the mandatory death sentence unconstitutional only for the offence of murder and does not apply to the mandatory death sentence for robbery with violence under section 296(2) of the Penal Code
Court orders
#- 1.The appeal is dismissed
- 2.The conviction and sentence imposed by the courts below are confirmed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kakamega
- Kakamega High Court Criminal Appeal No 16 of 2012
- Jurisdiction invoked
- Second appeal under section 361(1)(a) of the Criminal Procedure Code
Relief refused
#Remittal to the lower court for re-sentencing on the basis that the mandatory death sentence under section 296(2) of the Penal Code is unconstitutional
Muruatetu 1 applies only to the offence of murder, not robbery with violence; the mandatory death sentence under section 296(2) remains lawful
Costs
No costs order appears 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.
The upshot is that the appeal fails and is dismissed
the decision only addressed mandatory death sentence in regard to the ofience of murder contrary to Section 203 and 204 of the Penal Code, and does not apply to the mandatory death sentence provided under section 296(2) of the Penal Code
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 no evidence
Issues in the judgment
#Internal inconsistency in the delivery date: the High Court appeal is stated as delivered on 28th September 2015 in paragraph 1, while the closing recital states 'DELIVERED AND DATED AT KAKAMEGA THIS 29TH DAY OF FEBRUARY, 2024' - the latter is the date of this Court of Appeal judgment; the text also twice renders '2016' for Muruatetu which was decided in 2017 per the copy
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Akungwi v Republic (Criminal Appeal 81 of 2019) [2024] KECA 222 (KLR)", Case Analysis (2024). Kakamega High Court Criminal Appeal No 16 of 2012 (second appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/222/eng@2024-02-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.