Wanga v Republic
The bottom line
#Supreme Court dismisses appeal because constitutional issues were raised too late; Muruatetu ruling only applies to murder.
What this practically means
#The Supreme Court dismissed an appeal from a man convicted of robbery with violence. He argued for the first time at the Supreme Court that his constitutional rights were violated during his arrest and trial. The Court said it cannot hear such appeals because the constitutional questions were not part of the earlier cases. It also clarified that its famous Muruatetu decision about mandatory death sentences only applies to murder, not to robbery with violence.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court has jurisdiction to hear and determine the appeal; and if the court has jurisdiction, then;
- 2.Whether the appellant’s rights under articles 49 and 50 of the Constitution were violated as claimed by him in the petition.
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(4)(a) of the Constitution to hear an appeal where the constitutional issues were raised for the first time before it.
The Supreme Court lacks jurisdiction under Article 163(4)(a) where the constitutional issues were not the subject of controversy in the courts below and the Court of Appeal's decision did not involve the interpretation or application of the Constitution.
The appellant was convicted of robbery with violence based on identification and the doctrine of recent possession. His appeals to the High Court and Court of Appeal were argued on factual grounds. The allegations of violations of Articles 49 and 50 of the Constitution were raised for the first time before the Supreme Court. The Court of Appeal's decision did not involve constitutional interpretation or application. The Supreme Court held that it cannot assume jurisdiction merely because a party clothes an appeal in constitutional garb; the constitutional issue must have been the central theme in the courts below.
Whether the mandatory death sentence under section 296(2) of the Penal Code for robbery with violence was invalidated by the Supreme Court's decision in Muruatetu.
The Muruatetu decision did not invalidate the mandatory death sentence for robbery with violence under section 296(2) of the Penal Code; it applies only to murder convictions under sections 203 and 204 of the Penal Code.
The Supreme Court clarified that its decision in Muruatetu regarding the unconstitutionality of the mandatory death sentence was limited to murder. The Court noted that courts below had erroneously applied Muruatetu to other offences, including robbery with violence. The Court emphatically stated that such application was never contemplated and that no parallel should be drawn beyond murder. The High Court in this case had substituted the death sentence with 30 years imprisonment relying on Muruatetu, which the Supreme Court implicitly found to be an error, though it did not disturb the sentence as the appeal was dismissed for lack of jurisdiction.
Legal principles established
#- An appeal under Article 163(4)(a) must originate from a Court of Appeal decision that involved constitutional interpretation or application.
- It is not enough to allege constitutional violations for the first time before the Supreme Court; the issue must have been central in lower courts.
- The Muruatetu decision applies only to murder convictions under sections 203 and 204 of the Penal Code, not to robbery with violence under section 296(2).
- Courts below had erroneously applied Muruatetu to other offences, but the Supreme Court clarified this was never intended.
- The Supreme Court cannot assume jurisdiction merely because an appeal is clothed in constitutional language.
Court orders
#- 1.The Petition dated November 15, 2023 is hereby dismissed.
- 2.There shall be no orders as to costs.
- 3.We hereby direct that the sum of Kshs 6,000 deposited as security for costs upon lodging of this appeal be refunded to the depositor.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Malindi
- Civil Appeal No. 15 of 2020
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Declaration that the appellant’s constitutional rights to fair trial under article 50 of the Constitution were violated
The court lacked jurisdiction as the appeal did not involve the interpretation or application of the Constitution.
Order quashing the conviction, setting aside the sentence and setting the appellant at liberty, or in the alternative, a retrial
The court lacked jurisdiction to determine the appeal.
Order that the Judicial Service Commission pay compensation to the appellant of Kshs. 10 million
The court lacked jurisdiction to determine the appeal.
Order that the Director of Public Prosecution be estopped from bringing and prosecuting charges under section 296(2) of the Penal Code
The court lacked jurisdiction to determine the appeal.
Order that all police officers and all judicial officers and prosecutors undergo specific training on fair trial rights
The court lacked jurisdiction to determine the appeal.
Costs
There shall be no orders as to costs.
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 Petition dated November 15, 2023 is hereby dismissed.
There shall be no orders as to costs.
We hereby direct that the sum of Kshs 6,000 deposited as security for costs upon lodging of this appeal be refunded to the depositor.
The decision in the Muruatetu case applies only with respect to the mandatory nature of the death sentence under sections 203 and 204 of the Penal Code and no parallel ought to be drawn beyond that statement.
The appeal must originate from a decision of the Court of Appeal in which the question of interpretation or application of the Constitution was at play.
Key timeline
#Practical implications
#Raise constitutional issues early
When handling criminal appeals, ensure any constitutional arguments are raised at the earliest opportunity in the trial court or Court of Appeal. The Supreme Court will not hear such arguments if they are introduced for the first time at that level, as it lacks jurisdiction under Article 163(4)(a).
Understand sentencing limits
Businesses affected by robbery with violence should know that the mandatory death sentence under section 296(2) remains valid. The Muruatetu ruling does not apply to this offence. If you are a victim, you can expect the full penalty to be available, though courts may still exercise discretion in sentencing.
Know your appeal rights
If you are convicted of robbery with violence, you cannot wait until the Supreme Court to raise constitutional violations. You must raise them in the trial court or Court of Appeal. Also, the death sentence for this crime is still legal unless successfully challenged on different grounds.
Frequently asked questions
#Does the Muruatetu case apply to robbery with violence in Kenya?+
No. The Supreme Court clarified that its Muruatetu decision only applies to murder convictions under sections 203 and 204 of the Penal Code. It does not extend to robbery with violence under section 296(2) or any other offence.
Can I appeal to the Supreme Court of Kenya if I raise constitutional issues for the first time?+
No. Under Article 163(4)(a), the constitutional issue must have been central in the Court of Appeal decision. Raising it for the first time at the Supreme Court will result in dismissal for lack of jurisdiction.
What is Article 163(4)(a) of the Kenyan Constitution?+
It allows appeals to the Supreme Court from the Court of Appeal only if the case involves the interpretation or application of the Constitution. The constitutional question must have been part of the lower court proceedings.
Is the death penalty still mandatory for robbery with violence in Kenya?+
Yes, the mandatory death sentence under section 296(2) of the Penal Code remains in force for robbery with violence. The Muruatetu ruling did not affect this offence, though courts may still impose alternative sentences in some cases.
Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kamuthi Farmers Cooperative Society Ltd v Nairobi City Council[2025] KESC 28 (KLR)16 May 2025
- Ngao v Kitheka[2025] KESC 1 (KLR)31 Jan 2025followed
Cite this brief
#Cite this brief
Caselaw, "Wanga v Republic", Case Analysis (2024). Petition E030 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/38/eng@2024-08-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.