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Court of AppealDismissedCriminal Appeal (as heard on appeal from Garissa High Court Criminal Appeal No. 1 of 2013)· [2021] KECA 326 (KLR)

Mulandi v Republic (Criminal Appeal 97 of 2019) [2021] KECA 326 (KLR)

Court of Appeal of Kenya
17 December 2021
ASAsike-MakhandiaAMA. Mbogholi MsaghaHOH. A. Omondi
3,499 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that the death sentence still applies to robbery with violence, and Muruatetu's sentencing discretion only helps murder convictions.

What this practically means

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Executive summary

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Onesmus Kali Mulandi was convicted by the Kyuso Principal Magistrate's Court of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to life imprisonment, the charge alleging that on 20th September 2010 he robbed Wilson Mbevo Muthangya of a bicycle and mobile phone and killed him. The High Court at Garissa dismissed his first appeal on conviction but set aside life imprisonment and substituted a death sentence. On second appeal to the Court of Appeal at Nairobi, the appellant faulted the proof of the offence, the absence of an identification parade, the application of the doctrine of recent possession, the evaluation of evidence and his defence, and challenged the death sentence relying on Muruatetu. The Court, presided over by Asike-Makhandia, Mbogholi Msagha and H. A. Omondi, JJ A, restated that a second appeal is confined to points of law and will not disturb concurrent findings of the lower courts unless not based on any evidence. It held that any one of the alternative ingredients of robbery with violence suffices, and that the theft of the deceased's property coupled with the cut wounds on the body satisfied the offence. The doctrine of recent possession was properly applied, the bicycle and phone being recovered from the appellant shortly after the killing without explanation, and an identification parade would have been of no value. The appellant's defence was found to have been adequately considered, and following the Supreme Court's 2021 directions in Muruatetu, the discretion on the death sentence is available only for murder, so the death sentence stood. The appeal on conviction and sentence was dismissed in its entirety.

Key legal issues

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01

Ingredients of robbery with violence under section 296(2) of the Penal Code

Holding

The offence was proved: the deceased's property was stolen at the time of his death and cut wounds showed a weapon was used, satisfying the ingredients in the alternative.

Reasoning

The Court restated the Oluoch formulation that robbery with violence is committed where the offender is armed with a dangerous weapon, or in company with others, or uses personal violence. The word 'or' makes any one ingredient sufficient. Here the bicycle and phone disappeared with the deceased, and the body bore cut wounds, showing theft coupled with violence by a weapon.

p. 5
02

Doctrine of recent possession as basis of conviction

Holding

Recovery of the deceased's bicycle and phone from the appellant shortly after the killing, without explanation, properly grounded the conviction; the finding was concurrent and unassailable on second appeal.

Reasoning

Relying on Murkiria & another v Republic, the Court held recent possession can prove robbery with violence. The 1st appellate court found the period too short for the bicycle to change hands and the appellant gave no reasonable explanation. The defence of a police-conspiracy fabrication was rejected. Being concurrent findings of fact, they could not be disturbed.

p. 6
03

Adequacy of consideration of the appellant's defence

Holding

The first appellate court gave the defence adequate consideration and doubted the veracity of DW2 and DW3, so the ground failed.

Reasoning

The High Court questioned how a stranger in Usueni could identify DW2 as market chairman, and the 1st appellate court found the appellant leveraged a relationship forged with DW2 in remand. DW3's evidence also conflicted with the appellant's own admission that he was present during the recovery of the panga.

p. 6
04

Constitutionality of the mandatory death sentence for robbery with violence

Holding

In light of the Supreme Court's 2021 directions in Muruatetu, the discretion on the death sentence applies only to murder; the death sentence for robbery with violence stands as provided by law.

Reasoning

The Court traced the oscillating jurisprudence on mandatory sentences and, taking account of the Supreme Court's directions in the Muruatetu sentencing guidelines matter, declined to disturb the death sentence imposed by the High Court in substitution for life imprisonment, holding there was no error of law.

p. 6

Legal principles established

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  • A second appeal is confined to points of law and the Court will not interfere with concurrent findings of the two courts below unless the findings were not based on any evidence.
  • Any one of the ingredients of robbery with violence (dangerous weapon, company with others, or use of personal violence) is sufficient to establish the offence.
  • Following the Supreme Court's directions in Muruatetu & Another v R; Katiba Institute & 5 Others (Amicus Curiae), the discretion regarding the death sentence is available only for the offence of murder and not for robbery with violence.

Court orders

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  1. 1.The appeal on conviction and sentence is dismissed in its entirety

Authorities

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Legislation

  • Penal CodeSection 296(2)
  • Civil Procedure CodeSection 150

Cases cited (8)

  • R v Turnbull & Others
    [1976] 3 All ELR 549
  • Isaac Nganga Kahiga & Anor v R
    [2006] KLR
  • Francis Karioko Muruatetu and Anor v R
    [2017] eKLR
  • Francis Karioko Muruatetu & Another v R; Katiba Institute & 5 Others (Amicus Curiae)
    [2021] eKLR
  • Karingo & 2 Others v Republic
    [1982] eKLR
  • Oluoch v Republic
    [1985] KLR
  • Murkiria & another v Republic
    [2005] eKLR
  • Joseph Njuguna Mwaura & 2 Others v Republic
    Criminal Appeal No. 5 of 2008
On appeal from
High Court of Kenya at Garissa
Criminal Appeal No. 1 of 2013
Jurisdiction invoked
Second appeal to the Court of Appeal confined to points of law (Criminal Procedure / appellate jurisdiction; the judgment states 'a 2nd appeal must only be confined to points of law')

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, "Mulandi v Republic (Criminal Appeal 97 of 2019) [2021] KECA 326 (KLR)", Case Analysis (2021). Criminal Appeal (as heard on appeal from Garissa High Court Criminal Appeal No. 1 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/326/eng@2021-12-17

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