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Court of AppealDismissedCriminal Application 164 of 2017· [2022] KECA 492 (KLR)

Ekiru Ikul alias Engurangor & Another v Republic

Court of Appeal
25 March 2022
1,859 words in judgment
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to let two death-row inmates take their case to the Supreme Court, ruling that simply citing the death penalty is not enough to qualify as a public-interest legal question.

What this practically means

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Executive summary

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The two applicants, convicted of murder by the High Court at Lodwar (Riechi, J) and sentenced to death, had their appeals against conviction and sentence dismissed by the Court of Appeal (Githinji, Okwengu and J. Mohammed, JJA) on 28 June 2019. They then moved this Court (Kiage, Mbogholi-Msagha and Tuiyott, JJA) by notice of motion seeking certification of an intended appeal to the Supreme Court against the death sentence as a point of law of general public importance under Article 163(4)(b) of the Constitution, relying on Muruatetu, which outlawed the mandatory death sentence. Notably, the Director of Public Prosecutions conceded the application. The Court declined to be bound by the concession, holding it misconceived. Applying the Malcolm Bell criteria, the Court found the applicants had failed to identify with precision any specific point of law of general public importance; the bare proposition that the death sentence is a matter of general public importance was insufficient. The question they sought to raise - whether the number of lives lost should justify a death sentence - was never raised or determined in the courts below, and the Court of Appeal's reference to four lives lost was a proper application of settled sentencing principles requiring no further elucidation. Muruatetu did not proscribe the death sentence per se. The motion was dismissed in its entirety as legal adventurism devoid of substance. No costs order appears in the ruling.

Key legal issues

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01

Whether death sentence per se is a matter of general public importance for certification purposes

Holding

No. Certification requires a precisely identified, substantial point of law transcending the particular case with a significant bearing on the public interest; a bare assertion that the death penalty is a matter of general public importance fails the test.

Reasoning

Applying the Malcolm Bell criteria distilled from Supreme Court jurisprudence, the court found the applicants' motion lacked precision and specificity as to what about the death sentence the Supreme Court should explore. The question was never raised or answered in the High Court or the Court of Appeal, so it could not be a point of law already judicially determined. The court characterised the motion as legal adventurism devoid of substance.

p. 3
02

Whether the Court of Appeal's consideration of the number of lives lost in affirming the death sentence raised a novel question of jurisprudential moment

Holding

No. Consideration of the number of lives lost alongside other matters was a proper application of established sentencing principles requiring no further elucidation by the Supreme Court.

Reasoning

The court held that the fact that four people lost their lives was established, and the appellate court's consideration of it in affirming the death sentence was an ordinary exercise of sentencing discretion. Muruatetu only outlawed the mandatory death sentence; it did not proscribe the death sentence per se, so there was no uncertainty for the Supreme Court to resolve.

p. 4

Legal principles established

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  • An application for certification to the Supreme Court must identify with precision and concisely the specific elements of general public importance attributed to the matter; the death sentence per se, without more, does not qualify.
  • A question of law must have arisen and been judicially determined in the courts below before it can ground certification for a Supreme Court appeal.
  • A party's concession on a certification motion does not bind the court, which must independently satisfy itself that the certification criteria are met.

Court orders

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  1. 1.The application for certification of an appeal to the Supreme Court is dismissed in its entirety
On appeal from
High Court of Kenya at Lodwar
HCCR No. 2 of 2015
Jurisdiction invoked
Article 163(4)(b) of the Constitution - certification of a matter of general public importance for appeal to the Supreme Court

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, "Ekiru Ikul alias Engurangor & Another v Republic", Case Analysis (2022). Criminal Application 164 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/492/eng@2022-03-25

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