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Court of AppealDismissedCriminal Appeal 192 of 2016· [2022] KECA 1069 (KLR)

Omondi v Republic

Court of Appeal of Kenya
7 October 2022
PKP. O. KiageMNMumbi NgugiFTF. Tuiyott
1,832 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 ruling does not automatically void death sentences for robbery with violence.

What this practically means

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Executive summary

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This is a second appeal by David Obade Omondi against his conviction for robbery with violence contrary to section 296(2) of the Penal Code and the resulting death sentence. He was tried before the Chief Magistrate's Court in Homa Bay, convicted and sentenced to death; the High Court at Homa Bay (Nagillah and Majanja JJ) dismissed his first appeal on 22 May 2015, upholding both conviction and sentence on the basis that the case turned on recognition rather than mere identification. Before the Court of Appeal at Kisumu (Kiage, Ngugi and Tuiyott JJA), the appellant raised two grounds: that his trial violated Article 50 fair-trial rights, particularly the failure to supply prosecution documents under Article 50(2)(j), and that the death sentence was unconstitutional in light of Muruatetu, with a request for remittal for re-sentencing. The Court held that the Article 50 complaint could not be entertained because it was raised for the first time on second appeal, a point conceded by counsel. On sentence, the Court applied the Supreme Court's directions in Muruatetu 2, which confine Muruatetu to the offence of murder and require challenges to the mandatory death penalty for robbery with violence to be brought before the High Court. Bound by those directions, the Court declined to interfere with the sentence, while noting the appellant's liberty to petition the High Court. The appeal was dismissed in its entirety.

Key legal issues

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01

Whether Muruatetu renders the mandatory death sentence for robbery with violence unconstitutional

Holding

No; Muruatetu 2 directions confine Muruatetu to murder under sections 203 and 204 of the Penal Code, and the Court of Appeal is bound by them

Reasoning

The Supreme Court in Muruatetu 2 directed that challenges to the mandatory death penalty for other capital offences, including robbery with violence under section 296(2), must be properly filed, presented and fully argued before the High Court and escalated if necessary. As a subordinate court in the hierarchy, the Court of Appeal could not depart from those directions and so could not interfere with the sentence.

p. 4
02

Whether the Article 50 fair-trial complaint could be entertained on second appeal

Holding

No; the issue was raised for the first time in this Court and the appellant was precluded from raising it

Reasoning

The Article 50 complaint, including the claim that prosecution documents were never supplied under Article 50(2)(j), was neither raised before the trial court nor made a ground of appeal before the High Court. Counsel for the appellant conceded this. An issue not litigated in the courts below could not found a ground of appeal on a second appeal confined to matters of law.

p. 3

Legal principles established

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  • A second appeal lies only on matters of law under section 361(a) of the Criminal Procedure Code.
  • Muruatetu applies only to the mandatory death sentence for murder; it cannot be invoked to challenge mandatory death sentences for robbery with violence or other capital offences.
  • A party cannot raise a constitutional fair-trial challenge on second appeal where it was not raised at trial or in the first appeal.

Court orders

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  1. 1.The appeal is dismissed; the conviction and death sentence imposed for robbery with violence remain undisturbed

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Penal Codesection 203
  • Penal Codesection 204
  • Penal Codesection 40(3)
  • Penal Codesection 297(2)
  • Criminal Procedure Codesection 361(a)
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 50(2)(j)

Cases cited (6)

  • Karani vs. R
    [2010] 1 KLR 73

    That a second appeal is confined to matters of law under section 361(a) of the Criminal Procedure Code.

  • Thomas Patrick Gilbert Cholmondeley vs Republic
    (2008) eKLR

    Relied on by the appellant on the Article 50(2)(j) supply-of-documents point.

  • David Mwangi Mugo v Republic
    [2011] eKLR

    Relied on by the appellant challenging the constitutionality of the death sentence.

  • Godfrey Ngotho Mutiso vs Republic
    Criminal Appeal No. 17/2008 (UR)

    Held the mandatory death penalty unconstitutional; relied on by the appellant for re-sentencing.

  • Francis Karioko Muruatetu & Anor v Republic
    [2017] eKLR

    Held the mandatory death sentence for murder unconstitutional as it removed judicial discretion in sentencing.

  • Muruatetu & Another v Republic; Katiba Institute & 4 Others (Amicus Curiae)
    (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions)

    Directions that Muruatetu applies only to murder and not to other mandatory or minimum sentences.

On appeal from
High Court of Kenya at Homa Bay
HCCRA No. 98 of 2014
Jurisdiction invoked
Second appeal under section 361(a) of the Criminal Procedure Code, confined to issues of law

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Omondi v Republic", Case Analysis (2022). Criminal Appeal 192 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1069/eng@2022-10-07

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