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Court of AppealPartially AllowedCriminal Appeal 239 of 2004· [2006] KECA 381 (KLR)

Kazungu Kasiwa Mkunzo & another v Republic

Court of Appeal
21 July 2006
ROR.S.C. OmoloSBS.E.O. BosireEGE.M. Githinji
2,967 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 struck down key Child Offenders Rules as unconstitutional but upheld two robbery convictions, sparing only a fifteen-year-old from the death sentence.

What this practically means

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Executive summary

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The appellants were convicted by the Chief Magistrate's Court at Malindi of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death; the 1st appellant received additional concurrent fourteen-year terms for unlawful possession of a firearm and ammunition. The High Court at Mombasa (Khaminwa and Maraga, JJ) dismissed their first appeals on 23 November 2004. On second appeal, confined by section 361 of the Criminal Procedure Code to matters of law, counsel argued that the 2nd appellant was a child of about fifteen at the time of the offence and that his trial was a nullity because he remained in custody beyond twelve months, invoking the Child Offenders Rules under the Children Act. The Court of Appeal examined the Act and the Rules and held that the Act itself sets no trial time-limits and confers no power on the Minister to impose them; Rules 10(4) and 12(2), (3) and (4) were declared ultra vires section 186(c) of the Children Act and contrary to sections 72(5) and 77(1) of the Constitution, and therefore null and void. The trial was consequently not a nullity. On conviction, the court held that credibility findings of the two courts below were not open to disturbance on a second appeal, the identification evidence being overwhelming. Both convictions were affirmed. However, the court accepted that the 1st appellant was about fifteen years old when he committed the offences and was not liable to the death sentence: his death sentence was set aside and substituted with detention at the pleasure of the President, and the fourteen-year terms on the firearm counts were set aside with an unconditional discharge. The 2nd appellant's appeal was dismissed in its entirety.

Key legal issues

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01

Validity of the Child Offenders Rules time-limit and bail provisions

Holding

Rules 10(4) and 12(2), (3) and (4) are ultra vires section 186(c) of the Children Act and contrary to sections 72(5) and 77(1) of the Constitution, and are null and void

Reasoning

The Children Act itself sets no time limits for trials and authorises no ministerial power to fix them; section 31(b) of the Interpretation and General Provisions Act forbids inconsistent subsidiary legislation. The rules also purport to allow bail for children charged with capital offences, which the Constitution and Criminal Procedure Code prohibit. The rules therefore cannot stand.

p. 5
02

Whether the 2nd appellant's trial was a nullity for delay

Holding

The trial was not a nullity because the rules relied on were void and no statute set a mandatory time limit

Reasoning

Since the Child Offenders Rules were declared ultra vires and void, the twelve-month dismissal rule could not avail the 2nd appellant. Section 186(c) requires determination without delay and section 77(1) a fair hearing within a reasonable time, but neither fixes a period whose breach nullifies a trial, especially for a capital offence.

p. 5
03

Sufficiency of identification evidence on second appeal

Holding

Convictions were soundly based; witnesses saw the appellants well at dawn and during the robbery, and both lower courts believed them

Reasoning

The robbery began in Malindi when the appellants hired PW1's taxi; PW2 knew the 2nd appellant; other witnesses saw them at the scene and followed them into the forest where they were arrested with stolen goods and the gun. Credibility findings are not for a second appellate court absent something on the record displacing them.

p. 7
04

Sentence for the 1st appellant as a youthful offender

Holding

The 1st appellant, being about fifteen at the time of the offences, could not be sentenced to death; detention at the President's pleasure was substituted

Reasoning

The court accepted that the 1st appellant was about fifteen years old when he committed the offences, making the mandatory death sentence on count one inapplicable to him. The death sentence was set aside and substituted with detention during the President's pleasure, and the concurrent fourteen-year terms on the firearm counts were set aside with unconditional discharge.

p. 7

Legal principles established

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  • Subsidiary legislation inconsistent with its parent Act or the Constitution is null and void; the Act prevails over subsidiary legislation
  • Rules 10(4) and 12(2), (3) and (4) of the Child Offenders Rules are ultra vires the Children Act and the Constitution and are of no effect
  • On a second appeal, credibility of witnesses is not a matter for the Court of Appeal unless the record shows a witness ought not to have been believed
  • A person charged with an offence punishable by death is not entitled to release on bail under the Constitution and the Criminal Procedure Code

Court orders

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  1. 1.Declared Rules 10(4) and 12(2), (3) and (4) of the Child Offenders Rules ultra vires section 186(c) of the Children Act and contrary to sections 72(5) and 77(1) of the Constitution, null and void and of no effect
  2. 2.Dismissed the 2nd appellant's appeal in its entirety
  3. 3.Dismissed the 1st appellant's appeal against conviction
  4. 4.Set aside the 1st appellant's sentence of death and substituted an order that he be detained at the pleasure of His Excellency the President
  5. 5.Set aside the sentences of fourteen years imprisonment on counts two and three and discharged the 1st appellant unconditionally on those two charges

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Firearms Act, Cap 114section 4(2)(a)
  • Criminal Procedure Codesection 361
  • Criminal Procedure Codesection 123
  • Children Act, Act No. 8 of 2001section 186
  • Children Act, Act No. 8 of 2001section 197
  • Children Act, Act No. 8 of 2001Fifth Schedule - Child Offenders Rules, Rules 10(4) and 12
  • Constitution of Kenyasection 77(1)
  • Constitution of Kenyasection 72(5)
  • Interpretation and General Provisions Act, Chapter 2section 31(b)

Cases cited (1)

  • Mwalagaya vs Bandali
    [1984] KLR 751

    Subsidiary legislation in conflict with a substantive statute is repugnant and the statute prevails

On appeal from
High Court of Kenya at Mombasa
Jurisdiction invoked
Second appeal under section 361 of the Criminal Procedure Code, limited to matters of law

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Kazungu Kasiwa Mkunzo & another v Republic", Case Analysis (2006). Criminal Appeal 239 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/381/eng@2006-07-21

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