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Court of AppealPartially AllowedNot stated in the judgment· [2019] KECA 787 (KLR)

Solomon Sambu Kirwa v Republic [2019] KECA 787 (KLR)

High Court of Kenya
24 April 2019
265 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court replaced a death sentence with ten years' imprisonment, confirming that mandatory death sentences for robbery with violence are unconstitutional in Kenya.

What this practically means

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Executive summary

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This judgment arises from the appellant's conviction and sentence to death for robbery with violence contrary to section 296(2) of the Penal Code, arising from the robbery of Abraham Rotich of Kshs. 8,000/-, a Family Bank ATM card and a Techno mobile phone on 31st July 2014 at Chepngoror Village, Eldoret East District, Uasin Gishu County. At the hearing, the appellant, who appeared in person, elected to pursue only the question of sentence. The court noted that the Supreme Court in Francis Karioko Muruatetu & Another v Republic had declared the mandatory death sentence unconstitutional, and that the Court of Appeal in William Okungu Kittiny v Republic had extended that principle to robbery with violence under section 296(2). On that basis the judge held himself required to resentence the appellant afresh. Considering the circumstances of the case, the court affirmed the conviction, quashed the death sentence, and substituted a determinate term of ten years imprisonment commencing 4th August 2014, effectively crediting time served from that date. The judgment was delivered at Eldoret on 24th April 2019 by D.S. Majanja, J, with the prosecution represented by Ms Mokua of the Office of the Director of Public Prosecutions. No order as to costs is recorded.

Key legal issues

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01

Whether the mandatory death sentence for robbery with violence survives the Muruatetu declaration

Holding

The mandatory death sentence is unconstitutional, including for robbery with violence, requiring resentencing of the appellant afresh

Reasoning

The court relied on the Supreme Court's decision in Muruatetu, which invalidated the mandatory death sentence, and on Kittiny, in which the Court of Appeal extended that principle to robbery with violence under section 296(2) of the Penal Code. Applying those authorities, the judge concluded he was duty-bound to resentence the appellant afresh rather than leave the mandatory sentence intact.

p. 2
02

What is the appropriate sentence upon resentencing

Holding

Conviction affirmed; death sentence quashed and substituted with ten years imprisonment from 4th August, 2014

Reasoning

Having considered the circumstances of the case, the court exercised its sentencing discretion afresh. It found the conviction safe and did not disturb it, but quashed the death sentence and substituted a determinate term of ten years to run from the date of the appellant's arrest and detention in August 2014.

p. 2

Legal principles established

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  • The mandatory death sentence for robbery with violence under section 296(2) of the Penal Code is unconstitutional and a court must conduct fresh sentencing

Court orders

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  1. 1.Conviction affirmed
  2. 2.Sentence of death quashed and substituted with a term of ten (10) years imprisonment from 4th August, 2014

Authorities

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Legislation

  • Penal CodeSection 296(2)

Cases cited (2)

  • Francis Karioko Muruatetu & Another v Republic
    SCK Pet. No. 15 OF 2015 [2017] eKLR
  • William Okungu Kittiny v Republic
    KSM CA Criminal Appeal No. 56 of 2013 [2018] eKLR
Jurisdiction invoked
Resentencing jurisdiction following the declaration in Francis Karioko Muruatetu & Another v Republic that the mandatory death sentence is unconstitutional

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, "Solomon Sambu Kirwa v Republic [2019] KECA 787 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/787/eng@2019-04-24

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