Tobias Owino Okello & 2 others v Republic [2020] KECA 596 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it can replace a mandatory death sentence itself, substituting 20 years' imprisonment for three robbery convicts.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the second appellate court over sentence
The Court has jurisdiction to consider sentence where the constitutional validity of the sentence is in issue, even though severity of sentence is ordinarily a matter of fact.
Section 361 restricts second appeals to matters of law. The Court distinguished between the severity of a sentence, which is factual, and the question whether the sentence conforms to the Constitution, which is a matter of law. Following Muruatetu, a mandatory death sentence that denies sentencing discretion is unconstitutional, so a challenge to such a sentence raises a question of law within the Court's second-appeal jurisdiction.
Whether re-sentencing must be done by the trial court
Re-sentencing may be done by the Court of Appeal; it is not the exclusive preserve of the trial court.
The Court rejected the respondent's submission that only the trial court could re-sentence, noting a line of its own decisions (Ngoya, Auda, Thairu, GN) in which it substituted custodial sentences for the death sentence. Where mitigation is on record, the appellate court may itself impose an appropriate sentence without remitting the matter.
Appropriate sentence on re-sentencing
Taking into account mitigation, first-offender status, time served since 2008, minimal injuries and recovery of stolen items, the death sentence was set aside and 20 years' imprisonment substituted.
The Court applied the principles from its earlier re-sentencing decisions, weighing the 3rd appellant's mitigation, the absence of mitigation by the 1st and 2nd appellants, that all were first offenders, their custody since 2008, the minimal injuries to the complainant and the recovery of the stolen items, and concluded that a determinate custodial term of 20 years met the ends of proportionality.
Legal principles established
#- A second appellate court is confined to matters of law under section 361 of the Criminal Procedure Code and cannot interfere with concurrent findings of fact unless they are based on no evidence, wrong principles, or are plainly wrong.
- Where the sentence was passed in accordance with the Constitution is an issue of law, and the Court of Appeal itself may re-sentence under the Muruatetu jurisdiction; re-sentencing is not reserved to the trial court.
- In considering an appropriate sentence, the court must consider the appellant's mitigation, the proportionality of the gravity of the offence vis-a-vis the sentence, and all other relevant factors.
Court orders
#- 1.Appeal against sentence allowed; conviction upheld
- 2.Death sentence set aside and substituted with a sentence of 20 years' imprisonment from the date of the original conviction
- On appeal from
- High Court of Kenya at Nairobi
- H.C.CR.A. No. 206 & 261 of 2009
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal limited to matters of law)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tobias Owino Okello & 2 others v Republic [2020] KECA 596 (KLR)", Case Analysis (2020). Criminal Appeal No. 72 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/596/eng@2020-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.