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Court of AppealDismissedCriminal Appeal 196 of 2016· [2022] KECA 926 (KLR)

Wanyama v Republic

Court of Appeal
24 June 2022
PKP. O. KiageMNMumbi NgugiFTF. Tuiyott
613 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 that the Muruatetu decision does not automatically cancel mandatory death sentences for robbery with violence.

What this practically means

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Executive summary

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The appellant, Silvester Matekwa Wanyama, was convicted of robbery with violence by the Chief Magistrate's Court at Kakamega and sentenced to death. His first appeal against conviction and sentence was dismissed by the High Court at Kakamega (Sitati and Mwangi, JJ.) on 28 January 2016. Before the Court of Appeal (Kiage, Ngugi and Tuiyott, JJA), the appellant did not contest conviction; his sole ground was that the learned judges erred in upholding the mandatory death sentence without regard to Muruatetu 1, the Supreme Court's decision of 14 December 2017 declaring the mandatory death penalty for murder unconstitutional. The court held that the Supreme Court's Directions of 6 July 2021 expressly reiterated that Muruatetu did not invalidate mandatory or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute, and directed that challenges to other capital sentences, including robbery with violence under section 296(2), be properly filed, presented and fully argued before the High Court and escalated to the Court of Appeal if necessary. Given that explicit pronouncement, and the bar in section 361 of the Criminal Procedure Code against consideration of sentence in a second appeal, the court declined to revisit the sentence, holding that doing so would risk defying the Supreme Court. It noted that the appellant and others similarly situated may yet have their sentences reconsidered through the Supreme Court's roadmap. The appeal was dismissed in entirety. No costs order was made.

Key legal issues

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01

Applicability of Muruatetu 1 to mandatory death sentences for robbery with violence

Holding

Muruatetu 1 is not directly applicable to robbery with violence; the mandatory death sentence for that offence was not invalidated and remains lawful

Reasoning

The court relied on the Supreme Court's Directions of 6 July 2021, which expressly reiterated that Muruatetu did not invalidate mandatory or minimum sentences in the Penal Code or other statutes, and directed that challenges to other capital sentences be properly filed before the High Court and escalated to the Court of Appeal if necessary. Given that explicit pronouncement, the Court of Appeal could not entertain the sentence challenge without defying the Supreme Court.

p. 2
02

Bar on second appeals on sentence under section 361 of the Criminal Procedure Code

Holding

Section 361 of the Criminal Procedure Code in express terms debars the Court of Appeal from considering the sentence in this second appeal

Reasoning

Because the Supreme Court had declared that the mandatory death penalty for robbery with violence is not unconstitutional, the statutory bar in section 361 applied squarely, leaving the court no jurisdiction to interfere with the sentence imposed by the trial court and upheld on first appeal.

p. 2

Legal principles established

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  • Muruatetu 1 does not invalidate the mandatory death penalty for robbery with violence; any such challenge must be filed and argued before the High Court and escalated to the Court of Appeal if necessary
  • Section 361 of the Criminal Procedure Code debars the Court of Appeal from considering sentence in a second appeal where the mandatory death penalty for robbery with violence stands

Court orders

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  1. 1.Appeal dismissed in entirety

Authorities

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Legislation

  • Penal Codesection 40(3)
  • Penal Codesection 296(2)
  • Penal Codesection 297(2)
  • Criminal Procedure Codesection 361
  • Sexual Offences Act

Cases cited (1)

  • Francis Karioko Muruatetu & Another -vs- Republic
    [2017] eKLR

    Declared the mandatory death sentence unconstitutional; relied on by the appellant, but held inapplicable to robbery with violence per the 2021 Directions

On appeal from
High Court at Kakamega
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal on sentence barred); Supreme Court Directions of 6 July 2021 on Muruatetu

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, "Wanyama v Republic", Case Analysis (2022). Criminal Appeal 196 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/926/eng@2022-06-24

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