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Court of AppealPartially AllowedCriminal Appeal No. 79 of 2016

Joseph Mwendo Katete v Republic [2019] KECA 682 (KLR)

Court of Appeal of Kenya
5 April 2019
907 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed the death sentence is no longer mandatory for robbery with violence, restoring a 14-year prison term.

What this practically means

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Executive summary

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The appellant, Joseph Mwendo Katete, was convicted by the Chief Magistrate's Court at Makadara of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to 14 years imprisonment. On first appeal, the High Court (Muchemi & Odunga, JJ.) dismissed the appeal against conviction but, finding the sentence inconsistent with what it understood to be the mandatory death sentence under section 296(2), enhanced the sentence to death. In this second appeal, counsel for the appellant abandoned the appeal against conviction and pursued only the appeal against sentence, adding a ground that the death sentence was harsh and manifestly excessive in light of the Supreme Court's decision in Francis Karioko Muruatetu & another v Republic. The respondent's counsel conceded that sentencing is discretionary and urged restraint in interference, while highlighting the appellant's alleged involvement in other robberies and that he was armed. The Court of Appeal held that the Muruatetu declaration that the death sentence is not mandatory applies equally to robbery with violence under section 296(2), so sentencing courts must exercise discretion based on the circumstances and mitigating factors. Finding that the High Court enhanced the sentence solely on the mistaken premise of mandatoriness, the Court allowed the appeal against sentence, set aside the death sentence, and substituted the trial magistrate's sentence of 14 years imprisonment effective from 19th January, 2012. The judgment is a single judgment of the whole court and binds subordinate courts on the non-mandatory nature of the section 296(2) death sentence.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the death sentence imposed by the first appellate court under section 296(2) of the Penal Code was proper in light of the Supreme Court decision in Francis Karioko Muruatetu & another v Republic
  2. 2.Whether the appeal against sentence, the only ground pursued after abandonment of the appeal against conviction, should be allowed

Key legal issues

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01

Applicability of Muruatetu to the mandatory death sentence under section 296(2) of the Penal Code

Holding

The death sentence for robbery with violence is no longer mandatory; trial courts retain sentencing discretion including the imposition of any lesser sentence

Reasoning

Although the Supreme Court decided Muruatetu in a murder case, the court held the reasoning applies identically to section 296(2) of the Penal Code, which, like section 204 for murder, provides that a convicted person 'shall be sentenced to death'. The Supreme Court having declared the mandatory death sentence unconstitutional in principle, the same discretion must apply to robbery with violence, requiring consideration of circumstances and mitigating factors.

p. 2
02

Whether the enhanced death sentence imposed by the High Court should stand

Holding

The death sentence was set aside because it was founded on the erroneous view that the sentence was mandatory, and the trial magistrate's 14-year sentence was restored

Reasoning

The trial magistrate had exercised discretion properly, considering the circumstances and the appellant's lack of previous convictions, and imposed 14 years imprisonment. The High Court's enhancement to death rested solely on the mandatory-sentence premise, which no longer obtains after Muruatetu. The court therefore allowed the appeal against sentence and restored the original sentence to run from the date of trial sentencing.

p. 2

Legal principles established

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  • The holding of the Supreme Court in Muruatetu that the death sentence is not mandatory applies equally to the mandatory death sentence for robbery with violence under section 296(2) of the Penal Code; trial courts must exercise sentencing discretion considering mitigating factors
  • A first appellate court may not enhance a sentence to the mandatory death on the basis that the sentence under section 296(2) is mandatory, that position having been displaced by Muruatetu

Court orders

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  1. 1.Appeal against sentence allowed
  2. 2.Sentence of death imposed by the first appellate court set aside
  3. 3.Substituted thereto a sentence of 14 years imprisonment effective from 19th January, 2012, being the date of sentencing by the trial magistrate

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
HCCRA No. 20 of 2012
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code (criminal appellate jurisdiction); appeal against sentence only after abandonment of conviction appeal

Relief refused

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Appeal against conviction

Abandoned by the appellant at the hearing, so the court's mandate was limited to sentencing

p. 2

Costs

No costs order made in the judgment

Quotable passages

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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 judgment of the Supreme Court that the death sentence is not mandatory, is equally applicable to the sentence provided under section 296(2) for the offence of robbery with violence.
p. 2Applicability of Muruatetu to robbery with violence
In other words, the trial court should exercise its discretion based on the circumstances before it including the mitigating factors.
p. 2Sentencing discretion
We would therefore allow the appellant's appeal against sentence, set aside the sentence of death imposed on the appellant by the first appellate court, and substitute thereto, a sentence of 14 years imprisonment effective from 19th January, 2012, being the date of sentencing by the trial magistrate.
p. 2Final orders / disposition

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, "Joseph Mwendo Katete v Republic [2019] KECA 682 (KLR)", Case Analysis (2019). Criminal Appeal No. 79 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/682/eng@2019-04-05

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