Magare & another v Republic (Criminal Appeal 224 of 2010) [2012] KECA 254 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed the death sentence for attempted robbery with violence stands, ruling section 389 of the Penal Code does not reduce it to seven years.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Which offence the Appellants were convicted of in count one, given the High Court's reference in its conclusion to robbery with violence under section 296(2) of the Penal Code
- 2.Whether the mandatory death sentence under section 297(2) of the Penal Code for attempted robbery with violence is unlawful in light of section 389 of the Penal Code
- 3.Whether the High Court's reliance on dock identification evidence vitiated the conviction (ground impliedly abandoned)
Key legal issues
#Whether section 389 of the Penal Code limits the sentence for attempted robbery with violence under section 297(2) to seven years
No. Section 389 is a general residual provision applying only where no other punishment is provided; section 297(2) specifically provides death for attempted robbery with violence, and the legislature's intention to exclude section 389 is clear, as confirmed by the lesser seven-year penalty for attempted simple robbery under section 297(1)
The court read section 389 as a general attempt offence and a default sentencing formula operative only where no other punishment is provided. The words 'if no other punishment is provided' and 'but so that' confine the seven-year cap to attempts lacking a specific penalty. Since section 297(2) prescribes death, section 389 is inapplicable. The contrast with the seven-year penalty for attempted simple robbery under section 297(1) confirms legislative intent to punish the aggravated attempt more severely. The court expressly departed from David Mwangi Mugo and Boniface Juma Khisa, arriving at a different conclusion on reconsideration.
Whether the High Court's conclusion referring to 'robbery with violence contrary to section 296(2)' when the charge was attempted robbery under section 297(2) invalidates the conviction
No. It was an apparent error; the High Court had earlier correctly identified the charge as attempted robbery with violence, and no prejudice resulted; the error is curable under section 382 of the Criminal Procedure Code
The charge sheet showed the appellants were charged with attempted robbery with violence under section 297(2), not robbery with violence under section 296(2). The High Court's body of the judgment correctly identified and evaluated the charge as attempted robbery, and only the concluding sentence misdescribed it. The court held the judges intended to uphold the count-one conviction and that the error caused no prejudice, being curable under section 382 of the Criminal Procedure Code.
Whether Godfrey Ngotho Mutiso on the mandatory death sentence required interference here
Distinguished; that case dealt with the mandatory aspect of the death penalty, a different issue from the legality of the sentence provided by section 297(2)
The court held that Godfrey Ngotho Mutiso concerned the mandatory character of the death penalty rather than the legality of the death sentence for attempted robbery with violence. Since the appellants were given an opportunity to mitigate, and the sentence under section 297(2) was lawful, Mutiso did not assist them and the appeal had no merit.
Legal principles established
#- Where a specific penalty (death) is provided for attempted robbery with violence under section 297(2) of the Penal Code, the general attempt-sentencing provision in section 389 does not apply, and the death sentence for that offence is lawful
- Section 389 of the Penal Code provides a residual sentencing formula only where the legislature has not provided any other punishment for the attempt
- A first appellate court's misdescription of the offence in its concluding order, where the body of the judgment correctly identified the charge, is a curable error under section 382 of the Criminal Procedure Code causing no prejudice
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The conviction and sentence on count one (attempted robbery with violence contrary to section 297(2) of the Penal Code) stand as upheld by the High Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Second appellate jurisdiction over appeals from the High Court sitting on first appeal in criminal matters, confined to issues of law
Relief refused
#Setting aside the death sentence on the ground that section 389 of the Penal Code caps the sentence for attempts at seven years
Section 389 applies only where no other punishment is provided for the attempt; section 297(2) specifically provides for death
Concession by the State was not accepted as dispositive
The court concluded the appeal lacked merit notwithstanding the concession
Costs
No costs order made; this being a criminal appeal against conviction and sentence, each party to bear their own costs is not expressly ordered and none is recorded in the judgment.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We therefore dismiss the Appeal in its entirety. This judgment has been delivered pursuant to rule 32(2) of the Court of Appeal Rules, Visram JA having declined to sign the judgment.
Thus, for the ofience of an attempt to commit robbery with violence under section 297(2) of the Penal Code, in respect of which a sentence of death has been provided under that section, section 389 of the Penal Code cannot apply.
In our view, the legislature's intention to exclude the ofience under section 297(2) of the Penal Code from the application of section 389 of the Penal Code is clear.
In our view, the Appellants have not sufiered any prejudice by the apparent error in the judgment of the High Court. It is an error which is curable under section 382 of the Criminal Procedure Code.
Issues in the judgment
#The signature block lists Alnashir Visram as a Judge of Appeal and the bench is three judges, but the judgment states Visram JA declined to sign the judgment; it is unclear on this record whether the judgment is that of two or three judges
The judgment refers to 'Boniface Juma Kisa' in one passage, while the memorandum of appeal and case list refer to 'Boniface Juma Kisa' (Criminal Appeal No 268 of 2009); the spelling 'Khisa' also appears, indicating inconsistent rendering of the same authority
The quoted text of section 389 of the Penal Code is truncated in the judgment - paragraph 13 ends mid-extraction ('389.') with the full text only appearing in paragraph 14/15, and the ground refers to section 296(2) as the offence counsel argued the appellants were convicted of when the charge was under 297(2)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Magare & another v Republic (Criminal Appeal 224 of 2010) [2012] KECA 254 (KLR)", Case Analysis (2012). Criminal Appeal (as stated in the judgment; appellants' second appeal to the Court of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/254/eng@2012-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.