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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCriminal Appeal No. 157 of 2015· [2019] KECA 168 (KLR)

Robert Odhiambo Akumu v Republic

Court of Appeal of Kenya
21 November 2019
2,229 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 upheld a robbery with violence conviction but replaced the death sentence with 20 years' imprisonment under the Muruatetu decision.

What this practically means

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Executive summary

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The appellant was convicted by the trial magistrate on two counts of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death, the sentence on Count II being held in abeyance. The High Court at Homabay (Majanja and Nagillah, JJ) upheld both conviction and sentence on first appeal, and the appellant brought a second appeal to the Court of Appeal at Kisumu (Asike-Makhandia, Murgor and Otieno-Odek, JJ.A), confined by section 361(2) of the Criminal Procedure Code to points of law. The appellant argued that the element of stealing was not proved, that the charges were fabricated out of a boundary grudge, and that the death sentence was inhuman and unconstitutional. The court applied the established ingredients of robbery with violence as articulated in Johana Ndungu v Republic and held that the evidence - panga attacks causing grievous harm immediately before the taking of money, corroborated by witnesses and P3 forms, plus proof that the first complainant had borrowed the Kshs. 20,000 stolen - proved the offence. The alleged grudge was rejected as an afterthought since it was not canvassed at trial, and the court declined to disturb the concurrent findings of fact. The appeal against conviction was dismissed in its entirety. On sentence, applying the Supreme Court's decision in Muruatetu, which declared the mandatory death sentence unconstitutional, the court substituted the death sentence with 20 years' imprisonment to run from the date of conviction and sentence in the trial court. The appeal therefore partially succeeded on sentence only.

Key legal issues

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01

Whether the ingredients of robbery with violence under section 296(2) of the Penal Code were proved, including proof that the money was actually stolen

Holding

Yes. The evidence showed the appellant attacked the complainants with a panga immediately before demanding and taking their money; the element of stealing was proved through the evidence of PW6 confirming the first complainant had borrowed Kshs. 20,000 and the second complainant handing over Kshs. 10,200 to save his life.

Reasoning

The court applied the ingredients in section 296(2) and the Johana Ndungu formulation: being armed with a dangerous weapon, or wounding or using personal violence at or immediately before or after the robbery. The attack with a panga, the P3 forms showing grievous harm, and the evidence establishing possession of the money proved all elements. Concurrent findings of fact by the two courts below could not be disturbed on a second appeal absent absence of evidence.

p. 4
02

Whether the alleged grudge arising from a boundary dispute showed the charges were fabricated

Holding

Rejected as an afterthought because it was not canvassed during the trial.

Reasoning

The appellant contended the charges arose from a boundary dispute. The court held that since this issue was not raised or canvassed at trial, it could not be introduced for the first time on appeal; the defence of fabrication therefore failed.

p. 4
03

Whether the death sentence should stand in light of Muruatetu

Holding

No. The court substituted the death sentence with 20 years' imprisonment running from the date of conviction and sentence in the trial court.

Reasoning

The Supreme Court in Muruatetu declared the mandatory nature of the death sentence unconstitutional, though courts retain discretion to impose the death sentence in deserving cases. Because the appellant sought review of sentence and despite the heinous manner of the offence urged by the respondent, the court exercised its discretion in favour of a 20-year custodial sentence running from the date of conviction and sentence in the trial court.

p. 4

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to points of law and will not interfere with concurrent findings of fact of the two lower courts based on evidence; the test is whether there was any evidence on which the trial court could find as it did
  • Any one of the three circumstances in section 296(2) of the Penal Code - being armed with a dangerous weapon, being in company with others, or wounding/beating/striking/using personal violence at or immediately before or after the robbery - if proved, constitutes the offence of robbery with violence
  • Following Muruatetu, where the mandatory death sentence was declared unconstitutional, a court retains discretion to substitute a custodial sentence where an appellant seeks review of sentence

Court orders

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  1. 1.The appeal against conviction is dismissed in its entirety
  2. 2.The sentence of death is substituted with a custodial sentence of 20 years' imprisonment to run from the date of conviction and sentence in the trial court
  3. 3.It is so ordered (judgment dated and delivered at Kisumu on 21st November 2019)
On appeal from
High Court of Kenya at Homabay
HCCRA No. 134 of 2014
Jurisdiction invoked
Second appeal to the Court of Appeal under Section 361(2) of the Criminal Procedure Code, confined to points of law

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, "Robert Odhiambo Akumu v Republic", Case Analysis (2019). Criminal Appeal No. 157 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/168/eng@2019-11-21

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