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Court of AppealAllowedCriminal Appeal No. 33 of 2016· [2019] KECA 75 (KLR)

Bonventure Anziena Mukangai & 1 other v Republic

Court of Appeal
21 November 2019
ASAsike-MakhandiaPKP. O. KiageOOOtieno Odek
932 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled the death sentence is illegal for attempted robbery with violence, capping punishment at seven years' imprisonment.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Asike-Makhandia, Kiage and Odek, JJ.A.) allowed a second appeal on sentence only. The appellants had been convicted by the Chief Magistrate's Court at Kakamega on 9th December 2004 of attempted robbery with violence contrary to section 297(2) of the Penal Code and of possession of an imitation firearm under the Firearms Act, and sentenced to death and seven years' imprisonment respectively. The High Court at Kakamega (Sitati and Mrima, JJ.) on 31st July 2015 confirmed the death sentence, holding the firearms sentence in abeyance. Before the Court of Appeal, counsel for the appellants abandoned the ten original grounds and pressed a single ground: that section 297(2) conflicts with section 389 of the Penal Code, which provides that a person who attempts an offence punishable by death or life imprisonment shall not be liable to imprisonment for a term exceeding seven years. Prosecution counsel properly conceded the appeal on sentence. The Court agreed, holding that where there is a conflict in available sentences the accused must as of right receive the benefit of the less severe sentence, and quashed the death sentences, substituting seven years' imprisonment running from 9th December 2004, with the appellants to be set at liberty forthwith having served their terms. The Court directed that a certified copy of the judgment be served on the Attorney General, urging amendment of section 297(2) to harmonise it with section 389. No costs order was made.

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 in light of section 389

Holding

The death sentence imposed for attempted robbery with violence was illegal because section 389 of the Penal Code provides that a person who attempts an offence punishable by death shall not be liable to imprisonment for a term exceeding seven years; the benefit of the less severe sentence must accrue to the accused.

Reasoning

The court identified an apparent conflict between section 297(2), which prescribes death for attempted robbery with violence when armed, and section 389, which caps the punishment for attempting an offence punishable by death or life imprisonment at seven years. Relying on its prior decisions, the court held that in cases of conflicting punishments the accused must receive the benefit of the less severe sentence, and quashed the death sentences, substituting seven years' imprisonment. It urged the Attorney General to move Parliament to amend section 297(2) to harmonise it with section 389.

p. 2

Legal principles established

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  • Where there is a conflict in sentences available for an offence, an accused person must as of right be extended the benefit of the less severe sentence; the death sentence cannot stand for attempted robbery with violence where section 389 of the Penal Code caps the punishment at seven years.

Court orders

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  1. 1.The appeal succeeds; the sentence of death is quashed
  2. 2.Substitution of the sentence of death with a term of 7 years imprisonment to run from 9th December, 2004 when the appellants were first sentenced
  3. 3.The appellants, having served their term, shall be set at liberty forthwith, unless otherwise lawfully held
  4. 4.A certified copy of the judgment shall be served on the Hon. the Attorney General forthwith
On appeal from
High Court of Kenya at Kakamega
HCCRA Nos. 148 & 150 of 2014
Jurisdiction invoked
First appeal to the Court of Appeal against sentence under the Criminal Procedure Code (appeal from High Court judgment on appeal from the Chief Magistrate's Court)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Bonventure Anziena Mukangai & 1 other v Republic", Case Analysis (2019). Criminal Appeal No. 33 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/75/eng@2019-11-21

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