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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCriminal Appeal No. 56 of 2013· [2018] KECA 851 (KLR)

William Okungu Kittiny v Republic

Court of Appeal
8 February 2018
1,676 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that mandatory death sentences for robbery with violence are unconstitutional, and finalized death-row cases can be reopened for re-sentencing.

What this practically means

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Executive summary

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This Court of Appeal at Kisumu judgment (Githinji, Okwengu and Mohammed JJ.A) determined an appeal by William Okungu Kittiny against a High Court judgment (Chemitei, J.) dismissing a joint constitutional petition by seven death-row inmates challenging Sections 204, 296(2) and 297(2) of the Penal Code. The High Court had found the death penalty constitutional but declared the word 'shall' in the sentencing provisions unconstitutional, construing it as 'may', yet refused to remit the finalized cases for re-sentencing. Six petitioners withdrew their appeals, leaving only the appellant. Following the Supreme Court's decision in Muruatetu, both counsel concurred that the matter should be referred for sentence re-hearing. The Court of Appeal held that Muruatetu's findings apply mutatis mutandis to Sections 296(2) and 297(2), rendering the mandatory death sentence under those provisions unconstitutional, though death remains a discretionary maximum punishment. The main ground challenging the death penalty per se failed, as the Supreme Court did not outlaw it. The Court further held that the constitutional petition revived the finalized case, that Muruatetu did not prohibit courts below the Supreme Court from ordering sentence re-hearing in pending matters, and that the Supreme Court's decision opened the door for review of death sentences even in finalized cases. The appeal was allowed to the extent that the learned judge erred in not remitting the case; the matter was remitted to the Chief Magistrate's Court, Kisumu, for sentence re-hearing and sentencing only, with the record of Criminal Case No. 181 of 2004 to be returned. No costs order was made.

Key legal issues

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01

Extension of Muruatetu to robbery with violence and attempted robbery with violence

Holding

The findings in Muruatetu paragraph 69 apply mutatis mutandis to Sections 296(2) and 297(2); the mandatory death sentence there is unconstitutional, though death remains a discretionary maximum punishment

Reasoning

Although Muruatetu dealt specifically with murder, the Court found it broadly considered the constitutionality of the death sentence in general. Mutiso, affirmed by the Supreme Court, had said obiter that the reasoning might apply to other capital offences, and the Supreme Court at paragraph 111 referred to similar mandatory death sentences, supporting extension by parity of reasoning.

p. 3
02

Whether finalized cases can be remitted for sentence re-hearing

Holding

Yes; the constitutional petition revived the case, and the Supreme Court's decision opened the door for review of death sentences even in finalized cases; the High Court erred in refusing remittal

Reasoning

The Court held that although the appellant's earlier appeal had been dismissed when the Court of Appeal was the last appellate court, the constitutional petition revived the matter. Muruatetu only discouraged direct petitions to the Supreme Court; it did not bar subordinate courts from ordering sentence re-hearing in pending matters.

p. 3
03

Constitutionality of the death penalty per se

Holding

The death penalty itself remains constitutional; only its mandatory nature was invalidated

Reasoning

The High Court's finding that the death penalty per se under Section 204 is not inconsistent with the Constitution was affirmed by the Supreme Court in Muruatetu, which expressly did not outlaw the death penalty. The main ground of appeal on unconstitutionality of the death penalty therefore failed.

p. 3

Legal principles established

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  • The mandatory death sentence under Sections 296(2) and 297(2) of the Penal Code is unconstitutional; death under those provisions is a discretionary maximum punishment
  • Courts below the Supreme Court may order sentence re-hearing in matters pending before them notwithstanding Muruatetu's guidance against direct Supreme Court petitions
  • The decision of the Supreme Court has immediate and binding effect on all other courts under Article 163(7)

Court orders

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  1. 1.Appeal allowed to the extent that the learned judge erred in law in not remitting the case for sentence re-hearing
  2. 2.Matter remitted to the Chief Magistrate's Court, Kisumu, for sentence re-hearing and sentencing only
  3. 3.Registrar of the Court to return the record of Chief Magistrate's Court, Kisumu – Criminal Case No. 181 of 2004 as soon as reasonably practicable for sentence re-hearing and sentencing
On appeal from
High Court of Kenya at Kisumu
Const. Petition No. 2 of 2011
Jurisdiction invoked
First appeal to the Court of Appeal against a High Court constitutional petition judgment (Article 163(7) invoked on the binding effect of Supreme Court decisions)

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, "William Okungu Kittiny v Republic", Case Analysis (2018). Criminal Appeal No. 56 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/851/eng@2018-02-08

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