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Court of AppealPartially AllowedCriminal Appeal No. 268 of 2009

Boniface Juma Khisa v Republic [2011] KECA 385 (KLR)

Court of Appeal of Kenya
17 February 2011
ROR.S.C. OmoloPWP.N. WakiAVAlnashir Visram
1,326 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that where two penal laws conflict, offenders must receive the less punitive sentence, replacing a death sentence with five years.

What this practically means

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Executive summary

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This was a second and final appeal to the Court of Appeal at Eldoret by Boniface Juma Khisa, who had been convicted by the Bungoma Chief Magistrate of attempted robbery with violence contrary to Section 297(2) of the Penal Code and sentenced to death, with his first appeal dismissed by the High Court at Bungoma (Muchemi and Chitembwe, JJ). Before the Court of Appeal the appellant abandoned his appeal on conviction and pursued a single ground challenging the legality of the death sentence. The court found an apparent conflict between Section 297(2), which prescribes death for the offence, and Section 389 of the Penal Code, which caps imprisonment for attempts at seven years where the offence attempted is punishable by death or life imprisonment. Relying on a recent decision of the Court on the same issue and on Godfrey Ngotho Mutiso v Republic, which declared the mandatory death sentence under Section 204 unconstitutional, and noting the State's concession, the court held that the offender is entitled to the less punitive of the two sentences. The court dismissed the appeal on conviction, allowed the appeal on sentence, set aside the death sentence and substituted a sentence of five years' imprisonment running from the date of conviction by the trial court on 15th October 2008. The judgment binds lower courts to the principle that where penal provisions conflict, the less punitive sentence applies.

Questions the Court framed

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

  1. 1.Whether Section 297(2) of the Penal Code, prescribing the death sentence for attempted robbery with violence, conflicts with Section 389 of the same Code limiting sentences for attempts to seven years
  2. 2.What sentence should be imposed where such a conflict exists

Key legal issues

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01

Legality of the death sentence for attempted robbery with violence under Section 297(2) of the Penal Code

Holding

Section 297(2) is in apparent conflict with Section 389 of the Penal Code, which caps the sentence for attempted offences punishable by death or life imprisonment at seven years; the offender is entitled to the less punitive sentence.

Reasoning

The court found a manifest conflict between the section under which the appellant was convicted, which mandates death, and Section 389, which caps imprisonment for attempts at seven years. Relying on a recent decision of the Court and the Mutiso decision, which held the mandatory death sentence unconstitutional, and on the State's concession, the court resolved the conflict in favour of the less punitive sentence.

p. 2
02

Conviction for attempted robbery with violence

Holding

The conviction was proper and the concurrent findings of fact of the two courts below could not be disturbed on second appeal.

Reasoning

The evidence established that the appellant was caught fleeing after attacking the complainant and his pillion passenger, was identified by them, and the complainant's injuries were confirmed by a clinical officer. On those facts the conviction was well grounded.

p. 2

Legal principles established

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  • Where two penal provisions conflict, an offender is entitled to the less punitive of the two sentences

Court orders

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  1. 1.Appeal on conviction dismissed
  2. 2.Appeal on sentence allowed
  3. 3.Sentence of death set aside and substituted with a sentence of 5 years imprisonment
  4. 4.Term of imprisonment to run from the date of conviction by the trial court on 15th October 2008

The bench

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

RO
majority
PW
majority
AV
majority
On appeal from
High Court of Kenya at Bungoma
H.C.CR.A. No. 100 of 2008
Jurisdiction invoked
Second and final appeal under section 361(1)(b) of the Criminal Procedure Code (issue of law - legality of sentence)

Relief refused

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Appeal against conviction

Abandoned by the appellant and, in any event, concurrent findings of fact by the two courts below were well grounded on the evidence

p. 1

Costs

No costs order made 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.

In the result we dismiss the appeal on conviction and allow the appeal on sentence. We set aside the sentence of death imposed on the appellant and substitute therefor a sentence of 5 years imprisonment.
p. 2final orders - disposition of the appeal
The apparent conflict in the law may only be resolved by Parliament. But the appellant is entitled to the less punitive of the two sentences
p. 2conflict between penal provisions - lesser sentence applies
section 204 of the Penal Code which provides for a mandatory death sentence is antithetical to the Constitutional provisions on protection against inhuman or degrading punishment or treatment and fair trial
p. 2mandatory death sentence unconstitutional (Mutiso, quoted with approval)

Issues in the judgment

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minor

Coram and deliverance dates differ: the heading states the appeal is Criminal Appeal No. 268 of 2009 while the judgment is dated 17th February 2011; no internal contradiction, but note the date is 17th February 2011 while the body refers to the offence date only - no conflicting dates found

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Boniface Juma Khisa v Republic [2011] KECA 385 (KLR)", Case Analysis (2011). Criminal Appeal No. 268 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/385/eng@2011-02-17

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