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Court of AppealPartially AllowedCriminal Appeal No. 9 of 2018· [2020] KECA 849 (KLR)

Obed Edes Tesha & another v Republic [2020] KECA 849 (KLR)

Court of Appeal

6 March 2020

W. Ouko WKW. Karanja FSF. Sichale

1,561 words in judgment

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The bottom line

Kenya's Court of Appeal confirmed that mandatory death sentences for robbery with violence can be reviewed, and set aside these appellants' death sentences for fresh mitigation hearings.

What this practically means

Executive summary

The first and second appellants were tried before the Senior Resident Magistrate's Court at Kajiado for robbery with violence contrary to section 296(2) of the Penal Code, with an alternative charge of handling stolen goods. The prosecution evidence was that on 3rd October 2012 at Emaui village, Namanga, the appellants posed as customers, attacked the complainant, a boda boda operator, using a rope and a knife, and stole his motorcycle, which was later recovered. They were convicted on the robbery charge and sentenced to death. Their first appeal to the High Court at Kajiado (Nyakundi, J.) failed, the Judge finding the charge proved to the required standard. On second appeal, counsel for the appellants abandoned the grounds against conviction and challenged only the sentence, relying on the Supreme Court's decision in Muruatetu; the State did not oppose a remittal for re-sentencing. The Court of Appeal, coram Ouko (P), Karanja and Sichale, JJ.A, in a single judgment of the court, held that Muruatetu applies mutatis mutandis to sentences under sections 296(2) and 297(2) of the Penal Code, and that the failure of both courts below to consider the appellants' mitigation, together with the fact that the complainant was not harmed and the motorcycle was recovered, justified interference with the sentence. The appeal against conviction was marked as withdrawn, the death sentence was set aside, and the matter was remitted to the High Court sitting in Kajiado for mitigation and sentence. The decision binds subordinate courts and the High Court to treat the mandatory death sentence for robbery with violence as subject to individualised re-sentencing after mitigation.

Key legal issues

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

Holding

The Supreme Court's holding on the unconstitutionality of the mandatory death sentence applies to robbery with violence under section 296(2), and this Court has consistently applied it in that context

Reasoning

The Court noted that it has previously applied the Supreme Court's findings in Muruatetu, particularly the unconstitutionality of the mandatory nature of the death sentence, when deciding whether a death sentence should be substituted with a lesser one. Citing its own prior decisions, the Court held those findings apply mutatis mutandis to sections 296(2) and 297(2) of the Penal Code, enabling review of the appellants' death sentences.

p. 2

Failure to consider mitigation as a ground for interfering with sentence

Holding

Because neither court below considered the appellants' mitigation, and the prosecution did not oppose review of the sentence, the Court allowed the appeal on sentence and set aside the death sentence

Reasoning

The Court found that during trial the appellants had prayed for leniency and had no previous convictions, yet neither the trial court nor the first appellate court considered their mitigation. With the State not opposing the review, the Court, also taking into account that the complainant was not harmed and the motorcycle was recovered, allowed the appeal on sentence and remitted the matter for mitigation and re-sentencing.

p. 2

Abandonment of the appeal against conviction

Holding

The appeal against conviction was abandoned by counsel and marked as withdrawn, leaving sentence as the only issue for determination

Reasoning

At the plenary hearing, counsel for the appellants stated that the grounds of appeal against conviction had been abandoned and only the sentence was challenged. The State raised no objection to the abandonment or to remittal for re-sentencing. The Court accordingly confined itself to sentencing and marked the appeal against conviction as withdrawn, confirming the conviction.

p. 2

Legal principles established

The unconstitutionality of the mandatory death sentence declared in Muruatetu applies to sentences under sections 296(2) and 297(2) of the Penal Code, so offenders sentenced under those provisions are entitled to be re-sentenced after mitigation
Where neither the trial court nor the first appellate court considered the offender's mitigation, the Court of Appeal will interfere with the sentence notwithstanding that the offence carries a potential death sentence

Court orders

1.The appellants' appeal against conviction is marked as withdrawn
2.The appeal against sentence is allowed
3.The death sentence is set aside
4.The matter is remitted to the High Court sitting in Kajiado for mitigation and sentence

Authorities

Legislation

Penal Codesection 296(2)
Penal Codesection 322(2)
Penal Codesection 297(2)
Penal Codesection 89
Criminal Procedure Codesection 169
Constitution of Kenya, 2010Article 50(2)(c) and (j)

Cases cited (3)

Francis Karioko Muruatetu & Another v. Republic
(2017) eKLR
Rajab Iddi Mubarak v Republic
Eldoret Criminal Appeal No. 105 of 2015
William Okungu Kittiny v Republic
Kisumu Criminal Appeal No. 56 of 2013

On appeal from: High Court of Kenya at Kajiado; H.C.CR. A No. 7 of 2015
Jurisdiction invoked: Second appeal to the Court of Appeal under the Criminal Procedure Code (as of right against sentence)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Obed Edes Tesha & another v Republic [2020] KECA 849 (KLR)", Case Analysis (2020). Criminal Appeal No. 9 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/849/eng@2020-03-06

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