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Court of AppealPartially AllowedCriminal Appeal No. 22 of 2015· [2018] KECA 798 (KLR)

Wycliffe Wangusi Mafura v Republic [2018] KECA 798 (KLR)

Court of Appeal
1 March 2018
EGE. M. GithinjiHOHannah OkwenguJMJ. Mohammed
1,572 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed a robbery conviction but scrapped the automatic death sentence, replacing it with 20 years' imprisonment.

What this practically means

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Executive summary

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The Court of Appeal at Eldoret (Githinji, Okwengu & Mohammed, JJ.A.) heard the appellant's second appeal against conviction and sentence for robbery with violence contrary to section 296(2) of the Penal Code. The appellant had been convicted by the trial magistrate and sentenced to the then mandatory death sentence; the High Court (Azangalala & Mshila, JJ.) dismissed his first appeal on 11th October 2012. On the second appeal, the appellant's main grounds concerned identification and the adequacy of the evidence, complaining of a partial re-evaluation by the High Court. The Court held that under section 361(1) of the Criminal Procedure Code a second appeal lies on matters of law only, and it would not interfere with the concurrent findings of fact by the two courts below: the robbery occurred in broad daylight, the complainant identified the appellant whose name she knew from a prior M-pesa transaction, and Kibet Kipruto corroborated her identification and the presence of a pistol. Credibility findings were likewise not disturbed. The appeal against conviction therefore failed. On sentence, applying Muruatetu and Kittiny, the Court held that the death sentence under sections 296(2) and 297(2) is a discretionary maximum punishment. Given mitigation, nine years already spent in custody, and the absence of serious injuries to the complainant, the Court substituted a sentence of twenty years imprisonment running from 19th August 2009. The appeal was thus partially allowed: conviction affirmed, sentence varied. No costs order was made.

Key legal issues

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01

Scope of a second appeal on adequacy of identification evidence

Holding

The Court declined to interfere with the concurrent findings of the trial court and High Court that the complainant and Kibet Kipruto correctly identified the appellant, there being ample opportunity to observe him and supporting mutual corroboration.

Reasoning

A second appeal lies on law only. The two courts below made concurrent findings that the robbery occurred in broad daylight, that the complainant knew the appellant's name from a prior transaction, and that Kibet Kipruto corroborated her identification and the presence of a pistol. Credibility findings are also not disturbed unless no reasonable tribunal could have reached them.

p. 2
02

Mandatory death sentence for robbery with violence under section 296(2) of the Penal Code

Holding

Relying on Muruatetu and Kittiny, the mandatory death sentence under section 296(2) is unconstitutional; death is a discretionary maximum penalty. The Court set aside the death sentence and substituted 20 years imprisonment.

Reasoning

The Supreme Court in Muruatetu declared section 204's mandatory death sentence invalid for murder, and Kittiny applied that holding mutatis mutandis to sections 296(2) and 297(2). Since this appeal was not finalized, the Court had jurisdiction to sentence afresh; considering mitigation, 9 years already served, absence of serious injuries but presence of a pistol, imprisonment served the interests of justice.

p. 2

Legal principles established

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  • On a second appeal, the Court of Appeal can only entertain matters of law and will not interfere with concurrent findings of fact of the two courts below unless based on no evidence or no other reasonable tribunal could have reached such decision.
  • Following Muruatetu and Kittiny, the death sentence under sections 296(2) and 297(2) of the Penal Code is a discretionary maximum punishment, and an appellate court may order a sentence re-hearing or pass any appropriate sentence where an appeal is not finalized.

Court orders

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  1. 1.The appeal against conviction is dismissed
  2. 2.The appeal against sentence is allowed
  3. 3.The sentence of death is set aside
  4. 4.The appellant is sentenced to 20 years imprisonment to take effect from 19th August, 2009 when he was sentenced

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Penal Codesection 297(2)
  • Penal Codesection 204
  • Criminal Procedure Codesection 361(1)
  • Constitution of Kenyainconsistency with the Constitution (as invoked in Muruatetu holding quoted)

Cases cited (2)

  • Francis Karioko Muruatetu & Another v Republic
    Petition No. 15 of 2015
  • William Okungu Kittiny v Republic
    Kisumu Criminal Appeal No. 56 of 2013
On appeal from
High Court of Kenya at Eldoret
HCCRA No. 136 of 2009
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code (second appeal on matters of law only)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Wycliffe Wangusi Mafura v Republic [2018] KECA 798 (KLR)", Case Analysis (2018). Criminal Appeal No. 22 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/798/eng@2018-03-01

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