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Court of AppealPartially AllowedCriminal Appeal No. 116 of 1995

Ndungu v Republic (Criminal Appeal 116 of 1995) [1996] KECA 187 (KLR)

Court of Appeal of Kenya
20 November 1996
ACA.M. CockarAAA.M. AkiwumiASA.B. Shah
4,229 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that once facts prove capital robbery, a magistrate must convict under section 296(2) — even if that means the death penalty on a second appeal.

What this practically means

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Executive summary

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The appellant, convicted with two others by the Senior Resident Magistrate, Mombasa, of robbery under section 296(1) of the Penal Code and sentenced to imprisonment with strokes, appealed to the Court of Appeal after the High Court dismissed his first appeal but reduced the sentence. The trial magistrate had found the facts proved all three alternative circumstances in section 296(2) - the gang being armed, acting in company, and beating the victim - yet convicted under the lesser offence because the offence was 'not that aggravated to warrant a capital robbery charge'. The Court of Appeal held this imported a qualifying factor absent from the statute and constituted a grave misdirection on a point of law overlooked by the first appellate court. Mid-hearing, counsel sought to withdraw the appeal; the court rejected the application, holding rule 67 of the Court of Appeal Rules permits withdrawal only before hearing. Addressing counsel's natural justice and double jeopardy objections, the court held no prejudice arises since the sentence under section 296(2) is mandatory and the concurrent findings of fact were sound. Distinguishing Walter Awinyo Amolo and Wilson Washington Otieno, and following Joseph Boit Kembi, the court set aside the conviction under section 296(1) and the sentence imposed by the first appellate court, substituting a conviction under section 296(2) with the mandatory death sentence. In obiter, it flagged an anomaly whereby capital convictions can be substituted on an accused's appeal but not where a High Court erroneously convicts of manslaughter instead of murder, and directed the judgment be forwarded to the Attorney General for the prerogative of mercy committee.

Questions the Court framed

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

  1. 1.Whether the concurrent findings of fact by the trial court and first appellate court on the appellant's presence, participation, common intention and identification should be disturbed
  2. 2.Whether the trial magistrate's conviction under section 296(1) of the Penal Code, instead of section 296(2), was a misdirection on a point of law
  3. 3.Whether the Court of Appeal, under section 361(2) of the Criminal Procedure Code, could set aside the conviction under section 296(1) and substitute a conviction under section 296(2) with the mandatory death sentence
  4. 4.Whether the appellant's application to withdraw the appeal mid-hearing was permissible under rule 67 of the Court of Appeal Rules
  5. 5.Whether substituting a first-time conviction under section 296(2) with the mandatory death sentence offended natural justice or the principle of double jeopardy

Key legal issues

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01

Ingredients of robbery under section 296(2) of the Penal Code

Holding

The three sets of circumstances in section 296(2) are alternatives; proof of any one, together with the ingredients of robbery under section 295, mandates conviction under section 296(2). The magistrate's reference to the offence not being 'aggravated' imported a qualifying factor absent from the statute and was a grave misdirection on a point of law.

Reasoning

The court read section 296(2) in conjunction with section 295, holding that the essential ingredients of robbery are presupposed in the three prescribed circumstances. Each circumstance is independently sufficient. The word 'aggravated' appears nowhere in the sub-section, so the magistrate's gloss was an unwarranted qualification amounting to a grave misdirection which the first appellate judge overlooked.

p. 3
02

Withdrawal of a criminal appeal after the hearing has commenced

Holding

Rule 67 of the Court of Appeal Rules permits withdrawal only before hearing by written notice to the Registrar; 'before hearing' bears its ordinary meaning and does not mean 'before conclusion of the hearing'.

Reasoning

The court rejected counsel's interpretation that 'before hearing' meant 'before conclusion of the hearing', holding that the drafters would have inserted 'conclusion of' had that been intended. Since no rule provides for withdrawal after commencement of the hearing, the mid-hearing application was properly rejected.

p. 4
03

Powers of the Court of Appeal on a second appeal under section 361(2) of the Criminal Procedure Code

Holding

The Court of Appeal may set aside the conviction under section 296(1) and substitute a conviction under section 296(2) with the mandatory death sentence, or remit the case; remittal was inappropriate here.

Reasoning

The court identified two options under section 361(2): make the order the lower courts could have made, or remit with directions. Remittal was rejected because the trial was properly conducted and the only sentence is mandatory, leaving no discretion. Substituting the conviction was necessary to avoid letting an unlawful conviction stand.

p. 6
04

Natural justice and double jeopardy objections to first-time imposition of the mandatory death sentence

Holding

No prejudice or injustice arises and there is no double jeopardy; the sentence being mandatory, the absence of a further appeal does not vitiate the substitution.

Reasoning

The court accepted that the appellant would have had two appeals had he originally been convicted under section 296(2), but held the sentence is mandatory and the concurrent findings of fact were sound and re-verified. The appellant was already in custody serving a prison sentence, so no double punishment arises.

p. 5
05

Anomaly in the correction of unlawful acquittals on capital charges (obiter)

Holding

Obiter: where a subordinate court erroneously acquits on a capital charge and convicts on a lesser one, the accused on appeal faces substitution with the capital conviction and death, whereas no equivalent correction is possible where a High Court acquits on murder and convicts on manslaughter; the anomaly should be rectified.

Reasoning

The court noted that no appeal lies on an acquittal for murder and the Court of Appeal cannot substitute a murder conviction for manslaughter, yet the reverse situation under section 296(2) permits substitution of a capital conviction on the accused's own appeal. It directed the judgment be sent to the Attorney General for the prerogative of mercy committee, expressly stating the recommendation is not to be cited as precedent.

p. 6

Legal principles established

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  • Any one of the three sets of circumstances in section 296(2) of the Penal Code, once proved alongside the ingredients of robbery under section 295, suffices for a conviction under section 296(2); the court may not import a qualifying factor such as 'aggravation'.
  • Where proved facts establish robbery under section 296(2), the trial magistrate is obliged to convict under that section and impose the mandatory death sentence.
  • A criminal appeal may be withdrawn only before the hearing commences; withdrawal after commencement is not provided for in the Court of Appeal Rules.
  • On a second appeal under section 361(2) of the Criminal Procedure Code, the Court of Appeal may make any order the subordinate or first appellate court could have made, including substituting a conviction and mandatory sentence, on a wrong decision on a question of law.

Court orders

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  1. 1.Rejection of the appellant's application to withdraw the appeal during the hearing
  2. 2.Setting aside of the conviction under section 296(1) of the Penal Code entered by the trial court and confirmed by the first appellate court
  3. 3.Setting aside of the sentence of imprisonment and strokes imposed by the first appellate court
  4. 4.Substitution of a conviction under section 296(2) of the Penal Code and imposition of the mandatory sentence of death
  5. 5.Direction that a copy of the judgment be forwarded to the Attorney General to be placed before the committee advising the President on the prerogative of mercy

The bench

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

AC
majority

Wrote the judgment

AA
majority
AS
majority
On appeal from
High Court of Kenya at Mombasa
H.C.CR.A. No. 183 of 1993
Jurisdiction invoked
Section 361(1) and (2) of the Criminal Procedure Code (second appeal on a matter of law)

Relief refused

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Application to withdraw the appeal after the hearing had commenced

Rule 67 of the Court of Appeal Rules permits withdrawal only before hearing; there is no provision for withdrawal after the hearing has commenced

p. 4

Submission that the appellant should not face the death sentence for the first time on second appeal (natural justice and double jeopardy)

The sentence is mandatory and no prejudice or injustice arises from the absence of a further appeal; there is no double jeopardy

p. 6

Remittal of the case to the lower courts

No grounds for directions exist and the only possible sentence is mandatory, leaving no discretion to the lower courts

p. 6

Costs

No order as to costs is recorded 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 conviction under section 296(1) entered by the trial court and confirmed by the 1st appellate court and the sentence of imprisonment and strokes imposed by the 1 st appellate court are now set aside and substituted by a conviction under section 296(2) of the Penal Code for the offence for which the appellant had been charged and the mandatory sentence of death is now imposed.
p. 6Final orders - substitution of conviction and mandatory death sentence
If proved facts show that robbery under section 296(2) has been committed then the trial magistrate is obliged to convict the accused under this section and impose the sentence of death.
p. 5Mandatory conviction and sentence under section 296(2)
The court is not required to look for the presence of either of the other two set of circumstances.
p. 2Alternative circumstances in section 296(2) each independently sufficient
Nowhere is it stated in the rule that a criminal appeal maybe withdrawn after the commencement of the hearing of the appeal.
p. 4Withdrawal of criminal appeal under rule 67
We do not find any reason to differ from the concurrent findings of fact made by the trial court and the 1st appellate court.
p. 2Concurrent findings of fact on second appeal

Issues in the judgment

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minor

The judgment records the appeal as lodged on 11th June 1996 but the appeal is numbered Criminal Appeal No. 116 of 1995, an apparent inconsistency in dates.

minor

The judgment is undated as to day in the delivery clause, stating only 'this day of 20th day of November 1996'.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (17)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ndungu v Republic (Criminal Appeal 116 of 1995) [1996] KECA 187 (KLR)", Case Analysis (1996). Criminal Appeal No. 116 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1996/187/eng@1996-11-20

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