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Court of AppealPartially AllowedCriminal Appeal (not specified beyond memorandum dated 2nd November 2006)· [2007] KECA 489 (KLR)

Richard Nyariki Turungi v Republic

Court of Appeal of Kenya
23 March 2007
2,588 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed a guilty plea to robbery with violence was valid, but ruled a person can only be sentenced to death once, striking down the duplicate sentence.

What this practically means

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Executive summary

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The appellant was charged with two counts of robbery with violence contrary to section 296(2) of the Penal Code. On first appearance he pleaded guilty to both counts while his co-accused pleaded not guilty. The magistrate warned him of the mandatory death sentence, adjourned overnight, and on the following day the appellant again pleaded guilty and admitted the prosecution facts, denying only that he was with his co-accused. He was convicted and sentenced to death. His first appeal to the High Court (Kaburu Bauni & Warsame, JJ) was dismissed on 24th March 2006. On second appeal, counsel argued the plea was equivocal, that the magistrate failed to specify the count of conviction and sentence, and that no judgment under section 169 of the Criminal Procedure Code was delivered. The Court of Appeal, confining itself to issues of law, held the plea was unequivocal and properly accepted; that there is no statutory bar to pleading guilty to a capital charge provided strict safeguards appear on the record; and that no section 169 judgment was needed because the appellant admitted all issues, the case falling under section 207. The court agreed the magistrate should have specified the count of sentence but treated the omission as curable, holding the record showed conviction on both counts. The appeal against conviction on both counts was dismissed, but the court set aside the second sentence of death on count two, holding it is not possible to hang one man twice; the death sentence on count one remains.

Key legal issues

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01

Equivocality of plea of guilty to a capital charge

Holding

The plea was unequivocal; the appellant was warned of the mandatory death sentence, adjourned overnight, persisted in the plea and admitted the prosecution facts.

Reasoning

The record showed the magistrate warned the appellant of the consequences of pleading guilty, adjourned to allow reconsideration, and the appellant repeated 'It is true' on both counts and admitted the facts, denying only presence with co-accused. The court found the plea fell within the rare category where accepting a guilty plea to a capital charge is proper.

p. 5
02

Failure to specify the count of conviction and sentence

Holding

Not fatal; the record read in context showed conviction on both counts, and the omission in sentencing could be cured on appeal.

Reasoning

The magistrate read each count and recorded a plea on each; the admitted facts proved both counts. The record 'Guilty on plea and convicted' in context meant conviction on both counts. The court agreed the magistrate should have specified the count of sentence but held it curable.

p. 4
03

Necessity of a section 169 judgment after a plea of guilty

Holding

No judgment was necessary since the appellant admitted all issues.

Reasoning

Section 169 governs the composition of judgments following determination of contested issues. Where a plea of guilty is entered and the facts admitted, nothing remains for determination, so the case falls under section 207 rather than section 169.

p. 5
04

Multiple death sentences on concurrent counts

Holding

Only one sentence of death may be imposed; the second was set aside.

Reasoning

Since the only lawful sentence for each count was death, sentencing on both counts was impermissible as one cannot be hanged twice. The appeal against conviction was dismissed but the second death sentence was set aside.

p. 5

Legal principles established

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  • There is no statutory bar to a person charged with a capital offence pleading guilty, but the safeguards for accepting such a plea must strictly appear on the record.
  • A court may not impose the death sentence more than once on the same offender convicted on multiple counts; it must sentence on one count only.
  • Where an accused admits all the issues by an unqualified plea of guilty, no judgment under section 169 of the Criminal Procedure Code is required.

Court orders

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  1. 1.Appeal against conviction on each of the two counts dismissed
  2. 2.Second sentence of death imposed on count two set aside
  3. 3.Sentence of death on count one to remain in force
On appeal from
High Court
Jurisdiction invoked
Second appeal to the Court of Appeal on issues of law under the Criminal Procedure Code (Cap 75)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Richard Nyariki Turungi v Republic", Case Analysis (2007). Criminal Appeal (not specified beyond memorandum dated 2nd November 2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/489/eng@2007-03-23

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