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Court of AppealPartially AllowedCriminal Appeal (not stated in judgment beyond instant appeal)· [2021] KECA 247 (KLR)

Dennis Simiyu Alias Andinunu v Republic

Court of Appeal of Kenya
3 December 2021
1,562 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed attempted robbery with violence carries the specific penalty in section 297(2), but replaced a mandatory death sentence with 20 years' imprisonment.

What this practically means

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Executive summary

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The appellant was convicted by the Eldoret Chief Magistrate's Court on 5 December 2011 of attempted robbery with violence and sentenced to death. His first appeal against sentence to the High Court was dismissed on 30 October 2014 by Kimondo and Ngenye-Macharia, JJ, prompting this second appeal. Before the Court of Appeal (Kiage, Mohammed and Mumbi Ngugi, JJAA), counsel for the appellant argued that sections 297(2) and 389 of the Penal Code conflict, prescribing respectively death and a maximum of seven years' imprisonment for attempted robbery with violence, so that the lesser penalty should apply; he relied on earlier Court of Appeal decisions suggesting such a conflict. The respondent contended there was no conflict. The Court, exercising its section 361 Criminal Procedure Code jurisdiction limited to matters of law, framed a single issue: whether the two provisions conflict. Following its own decision in Charles Mulandi Mbula v Republic and Mulinge Maswili v Republic, the Court held there is no conflict: section 389 applies only where no other punishment is provided, and the specific penalty in section 297(2) ousts section 389. Earlier decisions suggestive of conflict were clarified. However, applying Francis Karioko Muruatetu, which declared mandatory sentences unconstitutional for removing judicial discretion, the Court found it just to interfere with the sentence. The appeal was allowed on sentence only: the death sentence was set aside and substituted with twenty years' imprisonment running from the date of first sentencing. Conviction was not disturbed.

Key legal issues

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01

Conflict between sections 297(2) and 389 of the Penal Code

Holding

No conflict exists; section 297(2) prescribes a specific penalty for attempted robbery with violence, ousting section 389.

Reasoning

The court, following Charles Mulandi Mbula v Republic and Mulinge Maswili v Republic, held that section 389 is a residual provision applying only where no other punishment is provided. Since section 297(2) prescribes a specific punishment for attempted robbery with violence, section 389 is excluded. Earlier decisions suggesting a conflict were clarified and do not bind.

p. 3
02

Mandatory death sentence under section 297(2)

Holding

Following Muruatetu, the mandatory death sentence was unconstitutional and the sentence was set aside and substituted with 20 years' imprisonment.

Reasoning

The court acknowledged the Supreme Court's decision in Muruatetu holding mandatory sentences unconstitutional for removing judicial discretion in sentencing. On the facts, it was just to interfere with the sentence, though only on sentence, conviction having been properly founded on concurrent findings.

p. 4

Legal principles established

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  • Section 389 of the Penal Code does not create a conflict with section 297(2); the specific penalty in section 297(2) for attempted robbery with violence ousts the application of section 389.
  • A second appellate court's jurisdiction is confined to matters of law and it will not disturb concurrent findings of fact absent no evidence, misapprehension of evidence, or wrong principles.
  • Following Muruatetu, mandatory sentences are unconstitutional because they divest courts of sentencing discretion for individualized consideration.

Court orders

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  1. 1.Appeal allowed on sentence only
  2. 2.Sentence of death set aside and substituted with twenty (20) years imprisonment to run from the date the appellant was first sentenced
On appeal from
High Court
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appellate court, matters of law only)

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, "Dennis Simiyu Alias Andinunu v Republic", Case Analysis (2021). Criminal Appeal (not stated in judgment beyond instant appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/247/eng@2021-12-03

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