Mutambi v Republic (Criminal Appeal 193 of 2019) [2024] KECA 1837 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that the death sentence for robbery with violence remains lawful because the Muruatetu case only struck down mandatory death sentences for 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 Court of Appeal on second appeal has jurisdiction to interfere with a sentence of death for robbery with violence where the appeal is on sentence only
- 2.Whether the Supreme Court decision in Muruatetu 1 renders the mandatory death sentence under section 296(2) of the Penal Code unconstitutional
- 3.Whether the trial court acted on wrong principles or overlooked material factors in imposing the death sentence
Key legal issues
#Scope of second-appeal jurisdiction on sentence
Severity of sentence is a matter of fact excluded from second-appeal jurisdiction; the Court may consider sentence only where it was enhanced by the High Court or the subordinate court lacked power to impose it.
Section 361(1)(a) of the Criminal Procedure Code confines second appeals to matters of law, and section 361(1)(b) permits consideration of sentence only where the High Court enhanced it or the subordinate court had no power to impose it. Neither condition was met: the death sentence was neither enhanced nor beyond the trial magistrate's power under section 296(2) of the Penal Code, which prescribes death.
Applicability of Muruatetu 1 to mandatory death sentences for robbery with violence
Muruatetu 1 does not invalidate the mandatory death sentence under section 296(2) of the Penal Code; the sentence of death imposed on the appellant remains lawful.
The Supreme Court's Directions of 6 July 2021 clarified that Muruatetu applied only to mandatory sentences for murder under sections 203 and 204 of the Penal Code and did not invalidate mandatory sentences in other statutes. For robbery with violence, a constitutional challenge must be properly filed, presented and fully argued before the High Court and escalated to the Court of Appeal if necessary. That has not been done in this case.
Circumstances for appellate interference with sentence
The Court will interfere with sentence only where the trial court acted on wrong principles, overlooked material factors, considered irrelevant factors, or where the sentence was illegal or so inordinately excessive as to be an error of principle.
Relying on Bernard Kimani Gacheru v Republic, the Court restated the settled principle that sentencing is a matter for the trial court's discretion and depends on the facts of each case. The appellant demonstrated no error of principle, no overlooked material factor, and no illegality: the death sentence is the prescribed sentence under section 296(2), so no ground for interference existed.
Legal principles established
#- On a second appeal under section 361(1)(b) of the Criminal Procedure Code, the Court has jurisdiction on sentence only where the sentence was enhanced by the High Court or where the subordinate court had no power to impose it; severity of sentence is a matter of fact outside second-appeal jurisdiction
- Following the Supreme Court's Muruatetu Directions of 6 July 2021, Muruatetu 1 cannot be applied directly to mandatory death sentences for offences other than murder, including robbery with violence under section 296(2) of the Penal Code; such a challenge must be filed and fully argued before the High Court and escalated if necessary
- An appellate court will not interfere with sentence unless it is manifestly excessive, the trial court overlooked a material factor, took into account wrong material, or acted on a wrong principle
Court orders
#- 1.The appeal against the sentence imposed lacks merit and is dismissed
- 2.The sentence of death imposed by the trial court and upheld by the High Court remains undisturbed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court (first appellate court)
- Jurisdiction invoked
- Section 361(1)(a) and (b) of the Criminal Procedure Code (second appeal limited to matters of law)
Relief refused
#Substitution of the death sentence with a term sentence
The Supreme Court's directions of 6 July 2021 clarified that Muruatetu does not apply directly to mandatory death sentences for robbery with violence; until a constitutional challenge is properly argued, the death sentence under section 296(2) remains lawful, and severity of sentence is a matter of fact excluded from second appeal
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.
Considering the above guidance, there is no basis upon which to disturb the sentence of death imposed by the trial court and upheld by the High Court. The appeal against the sentence imposed lacks merit and is dismissed.
As this is yet to be done, the sentence of death that was imposed upon the appellant, remains a lawful sentence.
Muruatetu as it now stands cannot directly be applicable to those cases.
Pursuant to Section 361(1)(b), this Court has jurisdiction to consider the issue of sentence only where it was enhanced by the High Court or where the subordinate court had no power to impose the sentence.
Issues in the judgment
#The judgment quotes the Muruatetu Directions passage but inserts '(15)' without the full quoted text at that point, leaving the numbered quote body to appear at paragraph 20/21; the two passages are contiguous and correspond, but the formatting is fragmented in the copy provided
Case number and neutral citation are not stated in the judgment as provided; the record also contains OCR-style errors ('ofience', 'afiirmed')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutambi v Republic (Criminal Appeal 193 of 2019) [2024] KECA 1837 (KLR)", Case Analysis (2024). Second Appeal, Criminal Appeal (sentence only). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1837/eng@2024-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.