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Court of AppealDismissedCriminal Appeal 140 of 2016· [2022] KECA 1115 (KLR)

Makokha v Republic

Court of Appeal
7 October 2022
PKP. O. KiageMNMumbi NgugiFTF. Tuiyott
1,598 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 resentencing route applies only to murder, so death sentences for robbery with violence remain undisturbed.

What this practically means

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Executive summary

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The appellant, Andrew Khanda Makokha, was tried before the Principal Magistrate's Court at Butere on three counts of robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code, arising from a night-time armed robbery at Shitsitwi market in which three complainants lost electronic goods, phones and cash. He was convicted on all counts and sentenced to death, while his co-accused was acquitted under section 215 of the Criminal Procedure Code. His first appeal to the High Court at Kakamega (Sitati and Mrima JJ.) against both conviction and sentence was dismissed in its entirety, prompting this second appeal. The memorandum of appeal raised a single ground: reliance on articles 165(3)(a)(b), 159(2)(a)(b) and 22(4) of the Constitution in light of the Supreme Court's decision in Muruatetu. Both counsel concurred that, if Muruatetu applied, the matter should be referred back for mitigation and resentencing; the appellant sought substitution of the death sentence with eight years' imprisonment, while the respondent urged forty years. The Court of Appeal (Kiage, Ngugi and Tuiyott, JJA) confined itself to matters of law under section 361(a) of the Criminal Procedure Code. It noted that Muruatetu II had directed that the unconstitutionality of mandatory sentences applies only to murder under sections 203 and 204 of the Penal Code, not to mandatory sentences generally, and that there were no comparable pronouncements on robbery with violence. Bound by those directions, the Court declined to interfere with the sentence and dismissed the appeal in its entirety, while observing that the appellant is not precluded from seeking review before the appropriate court in the manner proposed in the Muruatetu II Directions.

Key legal issues

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01

Whether Muruatetu permits resentencing of a person convicted of robbery with violence under section 296(2) of the Penal Code

Holding

No. Muruatetu II restricted Muruatetu to murder; the Court is bound by those directions and declined to interfere with the death sentence.

Reasoning

The Court acknowledged the Supreme Court in Muruatetu held mandatory sentences unconstitutional for removing judicial discretion, and that it had previously reduced mandatory sentences on merit. However, the Supreme Court revisited Muruatetu in Muruatetu II and directed that the decision applies only to murder under sections 203 and 204 of the Penal Code. Being bound by those directions, the Court declined to interfere, while noting the appellant may seek review in the manner proposed in the Directions.

p. 3
02

Scope of the Court's jurisdiction on second appeal

Holding

Limited to matters of law only under section 361(a) of the Criminal Procedure Code; the only question of law raised was resentencing in view of Muruatetu.

Reasoning

The Court framed its jurisdiction by statute: as a second appeal, only matters of law are open. The single ground in the memorandum invoked constitutional provisions and Muruatetu, and counsel for both sides concurred that the matter should be referred back for mitigation and resentencing if Muruatetu applied. The Court confined itself to that single question of law.

p. 3

Legal principles established

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  • Following Muruatetu II, the declaration that mandatory sentences are unconstitutional applies only to the offence of murder under sections 203 and 204 of the Penal Code and not to mandatory sentences generally, including robbery with violence.
  • A second appeal lies on matters of law only under section 361 of the Criminal Procedure Code.

Court orders

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  1. 1.Appeal dismissed in its entirety
  2. 2.The sentence imposed by the courts below left undisturbed
  3. 3.Liberty noted for the appellant to seek review before the appropriate court in the manner proposed in the Muruatetu II Directions

Authorities

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Legislation

  • Penal Codesection 295 as read with section 296(2)
  • Penal Codesections 203 and 204
  • Criminal Procedure Codesection 361(a)
  • Criminal Procedure Codesection 215
  • Constitution of Kenya 2010articles 165(3)(a)(b), 159(2)(a)(b) and 22(4)

Cases cited (2)

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

    Held that mandatory sentences are unconstitutional as they take away judicial discretion to determine an appropriate sentence on a case by case basis.

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

    Directions confining Muruatetu to the offence of murder under sections 203 and 204 of the Penal Code, not mandatory sentences generally.

On appeal from
High Court of Kenya at Kakamega
HCCRA No. 135 of 2013
Jurisdiction invoked
Section 361(a) of the Criminal Procedure Code (second appeal, matters of law only)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Makokha v Republic", Case Analysis (2022). Criminal Appeal 140 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1115/eng@2022-10-07

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