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Court of AppealDismissedKakamega High Court Criminal Appeal No 16 of 2012 (second appeal)

Akungwi v Republic (Criminal Appeal 81 of 2019) [2024] KECA 222 (KLR)

Court of Appeal of Kenya
29 February 2024
1,343 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a second appeal to the Court of Appeal at Kakamega by Rashid Shikeu Akungwi against the decision of the High Court (Chitembwe and Dulu, JJ) of 28th September 2015, which dismissed his first appeal and confirmed his conviction for robbery with violence contrary to section 296(2) of the Penal Code and the death sentence imposed by the trial magistrate in Mumias SRM Criminal Case No 830 of 2009. Before the Court of Appeal, the appellant abandoned all fourteen grounds originally filed and pursued a single ground: that the mandatory death sentence under section 296(2) was unconstitutional following the Supreme Court's decision in Muruatetu 1, and sought remittal for re-sentencing. The State opposed, urging that severity of sentence was a question of fact outside a second appeal and suggesting a 15-year term if discretion were available. The Court confined itself to points of law under section 361(1)(a) of the Criminal Procedure Code, citing Karingo v Republic. The singular issue was whether the death sentence was harsh in the circumstances. Applying the Supreme Court's clarifying decision in Muruatetu 2, the Court held that Muruatetu 1 applies only to the mandatory death sentence for murder under sections 203 and 204 of the Penal Code and does not extend to robbery with violence under section 296(2). The appeal accordingly failed and was dismissed, with the conviction and death sentence confirmed. The judgment binds subordinate courts and the High Court on the continued validity of the mandatory death sentence for robbery with violence.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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

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Whether the mandatory death sentence under section 296(2) of the Penal Code for robbery with violence was rendered unconstitutional by Muruatetu 1

Holding

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.

Reasoning

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.

p. 3
02

The scope of a second appeal

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed
  2. 2.The conviction and sentence imposed by the courts below are confirmed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
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

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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

p. 3

Costs

No costs order appears in the judgment

Quotable passages

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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
p. 3Disposition - appeal 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
p. 3Muruatetu does not extend to robbery with violence
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
p. 3Scope of second appeal

Issues in the judgment

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minor

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.