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Court of AppealDismissedCriminal Appeal 161 of 2016· [2022] KECA 617 (KLR)

Aburil & 2 others v Republic

Court of Appeal
8 July 2022
PKP. O. KiageMNMumbi NgugiFTF. Tuiyott
896 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that life sentences for robbery with violence cannot be reduced on a second appeal, and Muruatetu does not apply.

What this practically means

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Executive summary

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The three appellants were convicted in 2008 by the trial court on two counts of robbery with violence contrary to section 296(2) of the Penal Code and one count of causing grievous harm contrary to section 234, and sentenced to death on the robbery counts and ten years' imprisonment on the grievous harm count. Their first appeal succeeded only on sentence: the High Court (Lenaola & Onyancha, JJ) converted the death sentences to life imprisonment, to run concurrently with the ten-year term, and otherwise dismissed the appeals. The appellants brought a second appeal confined to sentence, urging that their time in custody since July 2006, their remorse and rehabilitation, and the Supreme Court's decision in Muruatetu justified substitution of fifteen years' imprisonment for the life sentences. The prosecution opposed, invoking the Supreme Court's directions of 6 July 2021 clarifying that Muruatetu applies only to sentences for murder under section 203 as read with section 204 of the Penal Code. The Court of Appeal (Kiage, Ngugi and Tuiyott, JJA) reaffirmed that in a second appeal its jurisdiction is confined to matters of law, sentence being a question of fact. It further observed that the appellants had inflicted serious injuries on their victims and that the trial court had found evidence of rape despite acquittal on defective charges. Declining to interfere even if it had the power, the court dismissed the appeal in its entirety.

Key legal issues

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01

Scope of second appellate jurisdiction over sentence

Holding

Sentence is a question of fact; in a second appeal the court's jurisdiction is confined to matters of law, so a complaint of severity of sentence is misplaced.

Reasoning

The court adopted the statement in Joseph Wambua Mbuvi v Republic, quoting David Munyao Mulela & another v Republic, that severity of sentence is a matter of fact and cannot be entertained on second appeal unless the sentence is unlawful. The court nonetheless considered whether it would reduce the sentences if it had the power, and declined on the facts.

p. 2
02

Applicability of Muruatetu to robbery with violence sentences

Holding

Muruatetu is authority only for sentences under section 203 as read with section 204 of the Penal Code (murder) and does not assist the appellants' life sentences for robbery with violence.

Reasoning

The prosecution relied on the Supreme Court's directions of 6 July 2021 clarifying the limited scope of Muruatetu. The court recorded this clarification and, in any event, declined to interfere with the sentences given the brutality of the offences and the benefit already obtained on first appeal.

p. 2

Legal principles established

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  • In a second appeal, the Court of Appeal's jurisdiction is confined to matters of law; sentence is a question of fact and severity of sentence is not a ground for a second appeal.
  • The Supreme Court's directions of 6 July 2021 confine Muruatetu to sentences for murder under sections 203 and 204 of the Penal Code.

Court orders

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  1. 1.The appeal is dismissed

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Penal Codesection 234
  • Penal Codesection 203 as read with section 204

Cases cited (3)

  • Francis Kariokor Muruatetu & another vs Republic
    [2017] eKLR

    Cited by appellants to urge setting aside life sentences

  • Joseph Wambua Mbuvi v Republic
    [2019] eKLR

    Scope of second appellate jurisdiction over sentence

  • David Munyao Mulela & another v Republic
    [2013]

    Severity of sentence is a matter of fact not entertainable on second appeal

On appeal from
High Court
Kakamega High Court Case No. 29 of 2008
Jurisdiction invoked
Second appellate jurisdiction over sentence under the Court of Appeal's appellate powers; appeal confined to matters 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, "Aburil & 2 others v Republic", Case Analysis (2022). Criminal Appeal 161 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/617/eng@2022-07-08

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