Hamphrey Wanyama v Republic [2018] KECA 168 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a robbery conviction but replaced the mandatory death sentence with 20 years, confirming judges can now choose lesser sentences for robbery.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the offence of robbery with violence contrary to Section 296(2) of the Penal Code was proved to the required standard, given the absence of medical evidence supporting the complainant's injuries
- 2.Whether the mandatory death sentence for robbery with violence should be set aside in light of the Supreme Court's decision in Muruatetu
Key legal issues
#Proof of robbery with violence under Section 296(2) of the Penal Code
The offence was proved; absence of medical evidence did not negate the violence, which was corroborated by the clinical officer's evidence of injuries to the complainant's teeth, and the ingredients of being armed with a dangerous weapon and acting in company with others were satisfied.
The complainant testified that the appellant produced a knife and threatened to stab him, and that three men entered the vehicle and tied him with a rope, injuring his teeth. The clinical officer confirmed a broken lower tooth and two loose teeth. The court found the appellant armed with a dangerous weapon and in company with three other people, satisfying Section 296(2).
Discretion in sentencing for capital robbery after Muruatetu
The death sentence under Section 296(2) is a discretionary maximum punishment; on the facts, an appropriate custodial sentence of 20 years was imposed in place of the mandatory death sentence imposed by a trial court that believed it had no discretion.
Relying on the Supreme Court's decision in Muruatetu as applied by this Court in Kittiny, the court held the death sentence under Sections 296(2) and 297(2) is discretionary maximum punishment. Since the trial magistrate had sentenced on the mistaken belief that there was no discretion on sentence, and the appellant was already serving a 30-year sentence, justice was met by a custodial term.
Legal principles established
#- Following Muruatetu, the sentence of death under Sections 296(2) and 297(2) of the Penal Code is no longer mandatory but a discretionary maximum punishment, so sentencing courts have discretion in capital robbery cases.
- A supplementary memorandum of appeal lodged by assigned counsel under Rule 65(2) of the Court of Appeal Rules operates in substitution for any memorandum the appellant may have lodged in person.
Court orders
#- 1.The appeal against conviction for robbery under Section 296(2) of the Penal Code is dismissed
- 2.The appeal against sentence is allowed to the extent that the sentence of death is set aside
- 3.The death sentence is substituted with a sentence of 20 years imprisonment to run consecutively with the sentence the appellant is now serving
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Eldoret
- HCCRA. No. 34 of 2012
- Jurisdiction invoked
- First appellate appeal to the Court of Appeal under the Court of Appeal Rules against the judgment of the High Court
Relief refused
#The appeal against conviction for capital robbery
The court was satisfied that the offence of aggravated robbery was proved; the appellant was armed with a knife and acted in company with three others
Costs
No costs order made 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.
Thus the sentence of death under Section 296(2) and 297(2) of the Penal Code is a discretionary maximum punishment.
We are satisfied that the offence of aggravated robbery with violence contrary to Section 296(2) of the Penal Code was proved.
The appeal against sentence is allowed to the extent that the sentence of death is set aside and substituted with a sentence of 20 years imprisonment to run consecutively with the sentence he is now serving.
Issues in the judgment
#The judgment inconsistently records the registration number of the stolen motor vehicle, stating KZN 994 in the charge and complainant's testimony but KZH 994 in the garage owner's testimony.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hamphrey Wanyama v Republic [2018] KECA 168 (KLR)", Case Analysis (2018). Criminal Appeal No. 49 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/168/eng@2018-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.