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Court of AppealPartially AllowedCriminal Appeal No. 149 of 2007· [2011] KECA 110 (KLR)

Moris Otieno Oduor v Republic

Court of Appeal of Kenya
7 October 2011
SBS.E.O. BosirePWP.N. WakiAVAlnashir Visram
1,496 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that attempted robbery with violence should not attract the death sentence, substituting a five-year prison term instead.

What this practically means

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Executive summary

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The appellant, Moris Otieno Oduor, was convicted by the Makadara Senior Principal Magistrate on three counts: attempted robbery with violence contrary to section 297(2) of the Penal Code, and two counts of unlawful possession of a firearm and ammunition under the Firearms Act, arising from an attempted hijacking of a matatu on 18 July 2002 during which an off-duty police officer overpowered him. He was sentenced to death on the first count and to concurrent terms of 10 and 5 years on the other two counts. His first appeal to the High Court (Makhandia, J.) was dismissed. Before the Court of Appeal (Bosire, Waki and Visram, JJ.A), he abandoned all grounds challenging conviction and urged a single ground: that the death sentence under section 297(2) of the Penal Code conflicts with section 389, which caps sentences for attempted felonies punishable by death at seven years' imprisonment. State Counsel conceded. Following its own decision in Boniface Juma Khisa v Republic, the court held there is an apparent conflict which only Parliament may resolve, and that the appellant was entitled to the less punitive sentence. The court quashed the death sentence, substituted five years' imprisonment on the first count, left the other sentences undisturbed, and ordered all terms to run concurrently from the date of conviction. The appeal succeeded to that limited extent only. Notably, the judgment was delivered under rule 32(2) of the Court of Appeal Rules because the presiding Judge was of a different view and did not sign it.

Key legal issues

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Conflict between section 297(2) and section 389 of the Penal Code on sentence for attempted robbery with violence

Holding

There is an apparent conflict which only Parliament can resolve; pending such resolution, the accused is entitled to the less punitive sentence and the death sentence is quashed and substituted with imprisonment

Reasoning

The court found an apparent conflict between section 297(2), prescribing death for attempted robbery with violence, and section 389, capping sentences for attempted felonies punishable by death at seven years. Following its own precedent in Boniface Juma Khisa v Republic, the court resolved the conflict in favour of the accused by applying the less punitive provision, substituting five years' imprisonment. The apparent conflict could only be definitively resolved by Parliament.

p. 3

Legal principles established

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  • A person convicted of attempted robbery with violence under section 297(2) of the Penal Code is entitled to the less punitive of the conflicting sentences, that under section 389, and not the death sentence
  • Where a death sentence is imposed for a capital offence combined with non-capital offences, the other sentences should be left in abeyance pending appeal or execution of the death sentence

Court orders

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  1. 1.The sentence of death imposed on the first count is quashed
  2. 2.A sentence of imprisonment for a term of 5 years is substituted on the first count
  3. 3.The sentences of 10 years and 5 years imprisonment on the second and third counts respectively are not disturbed
  4. 4.All terms of imprisonment shall run concurrently from the date of conviction by the trial court
On appeal from
High Court of Kenya at Nairobi
H.C.CR.A. No. 719 of 2003
Jurisdiction invoked
First appeal to the Court of Appeal under section 361 of the Criminal Procedure Code

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, "Moris Otieno Oduor v Republic", Case Analysis (2011). Criminal Appeal No. 149 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/110/eng@2011-10-07

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