Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCriminal Appeal No 13 of 1990

Alfred Mbuvi Munyu & another v Republic

Court of Appeal
17 July 1992
1,653 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that new laws do not apply to old cases unless Parliament says so explicitly.

What this practically means

#

Executive summary

#
The appellants were charged with murder contrary to sections 203 and 204 of the Penal Code but, after trial before Tank, J in Criminal Case No 22 of 1988, were acquitted of murder and convicted of common assault contrary to section 251, each being fined Shs 10,000/- with six months imprisonment in default. Their appeal against conviction came before the Court of Appeal at Nairobi (Gachuhi, Masime and Cockar JJ A). A cross-appeal had been struck out, and the Attorney General filed a certificate under section 379(5A) of the Criminal Procedure Code seeking review of the sentence, to which the appellants objected preliminarily. The Court re-evaluated the evidence as on a first appeal and held the conviction was supported by overwhelming evidence: the appellants used excessive and unlawful force on the deceased while purportedly effecting an arrest, and the suggestion that others caused the injuries was a ploy. The complaint that the trial Judge ignored the defence case was rejected, the judgment being distinguished from Joseph Njaramba Karura v Republic. On the certificate, the Court held that section 379(5A), enacted by Act No 7 of 1990 and commenced on 22nd June 1990 without retrospective effect, could not apply to an offence committed on 23rd January 1986 and a sentence passed on 25th October 1989; the certificate therefore conferred no power to review the sentence. Nonetheless, exercising its first-appellate jurisdiction and following Mita v Rep, the Court found no error of principle in the fine imposed. The appeal was dismissed and the appellants ordered released from custody.

Questions the Court framed

#

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

  1. 1.Whether the conviction of the appellants for common assault was supported by the evidence
  2. 2.Whether the learned trial Judge failed to consider the case for the defence, rendering the judgment fatally flawed
  3. 3.Whether the Attorney General's certificate under section 379(5A) of the Criminal Procedure Code empowered the Court of Appeal to review the sentence
  4. 4.Whether the sentence imposed by the trial court was erroneous

Key legal issues

#
01

Sufficiency of evidence for the common assault conviction

Holding

The conviction was supported by overwhelming evidence; the claim that others might have inflicted the injuries was a ploy to exculpate the appellants

Reasoning

The Court re-evaluated the first-instance evidence as on a first appeal, including the sworn testimony of the appellants. Neighbours' evidence established the appellants severely beat the deceased in his locked room. The trial Judge's disbelief of the claim of reasonable arrest force was upheld, the Court being itself satisfied beyond reasonable doubt that excessive and unlawful force was used.

p. 2
02

Whether the trial Judge failed to consider the defence case

Holding

The complaint had no merit; the trial judgment expressly considered the defence of no necessity to use force and the absence of an alibi

Reasoning

The Court distinguished Joseph Njaramba Karura v Republic, where the trial Judge had ignored the appellant's statement. Here the trial Judge set out the charge particulars, noted the absence of an alibi, quoted the appellants' sworn evidence on the force used, and analysed the neighbours' evidence before concluding no force was necessary. The judgment therefore engaged with the defence.

p. 2
03

Applicability of section 379(5A) of the Criminal Procedure Code

Holding

The section, enacted in 1990 with no retrospective effect, could not apply to a 1986 offence and 1989 sentence; the certificate conferred no power to review the sentence

Reasoning

The section was enacted by Act No 7 of 1990, assented to on 18th June 1990 and commenced on 22nd June 1990. Neither it nor the other amendments were expressed to be retrospective. Applying the presumption against retrospectivity, the Court held the certificate could not empower review of a sentence passed before commencement.

p. 3
04

Correctness of the sentence of a fine of Shs 10,000/-

Holding

No error of principle in the exercise of the trial Judge's unfettered sentencing discretion; the sentence met the interests of justice

Reasoning

Section 251 of the Penal Code prescribes a maximum of five years for assault causing actual bodily harm, and section 26(3) permits a fine in substitution for imprisonment. Following Mita v Rep, a fine is not wrong unless circumstances irresistibly preclude it. Mitigation (age, two years on remand, loss of employment, family responsibilities, first offenders) was considered by the trial Judge.

p. 3

Legal principles established

#
  • A statutory provision is not retrospective unless expressly so stated; section 379(5A) of the Criminal Procedure Code cannot apply to offences and sentences predating its commencement
  • On a first appeal the Court of Appeal analyses and evaluates the evidence afresh and may consider sentence notwithstanding the invalidity of a section 379(5A) certificate
  • It is not wrong to impose a fine for assault causing actual bodily harm unless the circumstances irresistibly preclude that mode of punishment

Court orders

#
  1. 1.Appeal against conviction dismissed
  2. 2.Appellants released from custody to which they had been committed pending judgment
  3. 3.Sentence of a fine of Shs 10,000/- (default six months imprisonment) left undisturbed

The bench

#

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
Criminal Case No 22 of 1988
Jurisdiction invoked
First appeal to the Court of Appeal under the Criminal Procedure Code; the Attorney General's certificate under section 379(5A) of the Criminal Procedure Code was held not to apply

Relief refused

#

Review/enhancement of sentence pursuant to the Attorney General's certificate under section 379(5A)

The provision, enacted in 1990 without retrospective effect, could not apply to an offence committed in 1986 and sentence passed in 1989

p. 3

Appeal against conviction

Conviction was supported by overwhelming evidence and the trial Judge considered the defence case

p. 2

Costs

No costs order made 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.

In the light of all that we have said we find no merit in this appeal and order it to be dismissed. We accordingly order that the appellants be released from custody to which we committed them pending this judgment.
p. 3Final orders - dismissal of appeal and release
We accordingly hold that the certificate of the Attorney General does not, in this case, empower this Court to review the sentence.
p. 3Retrospectivity of section 379(5A) Criminal Procedure Code
neither this provision nor indeed any of the amendments were expressed to have any retrospective effect.
p. 3Presumption against retrospectivity
We are therefore satisfied that the appellants were convicted on overwhelming evidence of the assault on the deceased and reject the appeal against conviction.
p. 2Sufficiency of evidence on first appeal
We do not with respect, find any error of principle in the learned judge's exercise of discretion. We therefore find no basis for complaint about the sentence which in our view met the interests of justice.
p. 3Sentencing discretion undisturbed

Issues in the judgment

#
minor

Offence date stated as 23rd January 1986 is inconsistent with the case number Criminal Case No 22 of 1988

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Alfred Mbuvi Munyu & another v Republic", Case Analysis (1992). Criminal Appeal No 13 of 1990. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1992/66/eng@1992-07-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.