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Court of AppealPartially AllowedCriminal Appeal No. 7 of 2018· [2020] KECA 714 (KLR)

Geofrey Njogu Mwangi v Republic [2020] KECA 714 (KLR)

Court of Appeal

24 April 2020

Ouko KAKaranja SISichale

2,346 words in judgment

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The bottom line

Kenya's Court of Appeal set aside a mandatory death sentence for robbery, confirming courts must now consider personal circumstances before sentencing.

What this practically means

Executive summary

The appellant was convicted by the trial magistrate's court of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death as the law then prescribed. His first appeal to the High Court at Kajiado (Nyakundi, J) was dismissed by judgment dated 19th April 2017. On second appeal to the Court of Appeal at Nairobi (Ouko, P, Karanja and Sichale, JJ.A), counsel for the appellant abandoned all grounds on conviction, leaving only the ground that the death sentence was excessive, relying on the Supreme Court's decision in Francis Karioko Muruatetu & another v Republic, which declared the mandatory death sentence under section 204 of the Penal Code unconstitutional. The State did not oppose setting aside the sentence and taking the view that re-sentencing belongs to the High Court. The Court held that neither the trial court nor the first appellate court had considered the appellant's mitigation because their hands were tied by the then-mandatory sentence, but that following Muruatetu the death sentence is no longer mandatory. The Court allowed the appeal on sentence only, set aside the death sentence, and remitted the matter to the High Court sitting in Kajiado, within fourteen days, to record the appellant's mitigation and the victim's impact assessment before re-sentencing. The conviction therefore stands undisturbed. This judgment binds subordinate courts and the High Court on the treatment of sentences imposed under the formerly mandatory death penalty provision.

Key legal issues

Effect of Muruatetu on a mandatory death sentence for robbery with violence

Holding

The trial magistrate's hands were tied at the time, but the death sentence is no longer mandatory; the sentence was set aside for re-sentencing.

Reasoning

The trial magistrate expressly stated her hands were tied and imposed the death sentence as then prescribed by law, meaning mitigation was not considered. Following the Supreme Court's decision in Muruatetu declaring the mandatory death sentence unconstitutional, the sentence could no longer stand, and the proper course was to allow the appeal on sentence and remit for re-sentencing.

p. 3

Whether re-sentencing should be done by the Court of Appeal or the High Court

Holding

The matter was remitted to the High Court rather than the Court re-sentencing the appellant itself.

Reasoning

Counsel for the appellant urged re-sentencing by this Court or remittal to the High Court; the State did not oppose remittal and submitted that re-sentencing belongs to the court below. The Court adopted that course, directing the High Court at Kajiado to record mitigation and the victim's impact assessment before re-sentencing.

p. 3

Legal principles established

Following Muruatetu, the death sentence under section 204 of the Penal Code is no longer mandatory and mitigation must be considered before sentencing.
Where a sentence was imposed under a mandatory provision later declared unconstitutional, an appellate court may set the sentence aside and direct re-sentencing with mitigation and victim impact assessment.

Court orders

1.Appeal on sentence allowed
2.Death sentence set aside
3.Appeal referred back to the High Court sitting in Kajiado within fourteen (14) days to record the appellant's mitigation and the victim's impact assessment before re-sentencing

Authorities

Legislation

Penal Codesection 296(2)
Penal Codesection 204

Cases cited (1)

Francis Karioko Muruatetu & another vs. Republic
[2017] eKLR

On appeal from: High Court of Kenya at Kajiado; HC. CRA. No. 4 of 2015
Jurisdiction invoked: First appellate jurisdiction under the Criminal Procedure Code on second appeal against sentence (Court of Appeal, Criminal Appeal No. 7 of 2018)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Geofrey Njogu Mwangi v Republic [2020] KECA 714 (KLR)", Case Analysis (2020). Criminal Appeal No. 7 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/714/eng@2020-04-24

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