Lossi Wambulwa Wanema v Republic
The bottom line
#Kenya's Court of Appeal confirmed the death sentence is no longer mandatory for murder, replacing it with 25 years' imprisonment in this case.
What this practically means
#Executive summary
#Key legal issues
#Constitutionality of the mandatory death sentence for murder under Section 204 of the Penal Code
Section 204 is invalid only to the extent that it makes the death sentence mandatory; the death penalty itself is not outlawed and remains a discretionary maximum punishment.
The Court, agreeing with the appellant that the death sentence for murder is no longer mandatory after the Supreme Court's decision in Muruatetu, held that the trial Judge in 2016 was simply bound by the then-mandatory provision and did not err. The trial judge expressly stated that the law prescribed a mandatory sentence, showing he never exercised discretion. The appeal against sentence therefore merited review.
Whether the Court should remit for resentencing or substitute its own sentence
The Court has power to vary the sentence itself and proceeded to do so rather than remit.
Although remittal is one available option, the Court reasoned that varying the sentence itself avoids prolonging the appellant's time in the court system, that the Court has the skills to determine an appropriate sentence, and that the question arises in a routine appeal concerned with the appropriateness of the sentence in light of intervening jurisprudence.
Appropriate sentence in the circumstances
Twenty-five years imprisonment, effective from 26th April 2011, substituting the death sentence.
The Court considered the totality of time served (approximately 11 years and 8 months in custody including pre-conviction detention), the appellant's status as a first offender, mitigation, and the fact that the appellant struck the deceased only once. Applying the principle of proportionality in sentencing, it concluded the death sentence should be set aside and substituted.
Standard of intervention on sentence by an appellate court
An appellant must show the trial court acted on wrong principle, ignored material factors, took into account irrelevant considerations, or that the sentence is manifestly excessive.
Relying on its prior decision in Ahamad Abolfathi Mohammed & another v Republic, the Court restated the principle that an appellate court will not normally interfere with the exercise of sentencing discretion unless one of those vitiating factors is demonstrated. Here, the failure to exercise any discretion at all, because of the mandatory provision, satisfied that threshold.
Legal principles established
#- Following Muruatetu, the death sentence for murder under Section 204 of the Penal Code is no longer mandatory but remains available as a discretionary maximum punishment.
- An appellate court, post-Muruatetu, may itself impose an appropriate sentence rather than remit the matter to the trial court for resentencing.
- On a first appeal, the Court of Appeal must re-evaluate the evidence on record, mindful that it did not see or hear the witnesses.
Court orders
#- 1.Appeal against sentence allowed; death sentence set aside
- 2.Substituted sentence of twenty-five (25) years imprisonment to take effect from 26th April, 2011 when the appellant was first arraigned in court and held in custody
- On appeal from
- High Court of Kenya
- not stated in judgment
- Jurisdiction invoked
- First appeal against conviction and sentence from the High Court exercising original criminal jurisdiction under the Criminal Procedure Code
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lossi Wambulwa Wanema v Republic", Case Analysis (2023). Criminal Appeal (not stated on record). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/130/eng@2023-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.