Ndiwa v Republic (Criminal Appeal 290 of 2018) (25 January 2024) (Reasons) [2024] KECA 45 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that attempted robbery with violence cannot attract life imprisonment because the law offers a lighter maximum of seven years.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the life imprisonment imposed for attempted robbery with violence was illegal in view of the apparent conflict between sections 297(2) and 389 of the Penal Code
- 2.Whether an accused convicted of attempted robbery with violence is entitled to the less punitive of the two sentences prescribed by the conflicting provisions
Key legal issues
#Legality of life imprisonment for attempted robbery with violence given the conflict between sections 297(2) and 389 of the Penal Code
The apparent conflict between section 297(2) (death sentence) and section 389 (maximum seven years for attempts of offences punishable by death or life imprisonment) entitles the offender to the less punitive sentence; following Evanson Muiruri Gichane and Boniface Juma Khisa, and in light of the State's concession, the life imprisonment was set aside.
Section 297(2) prescribes death for robbery with violence while section 389 caps punishment for attempts of capital offences at seven years. This Court in Evanson Muiruri Gichane held the conflict may only be resolved by Parliament but, in the interim, the offender is entitled to the less punitive of the two sentences. Boniface Juma Khisa followed the same jurisprudence. The respondent conceded the appeal against sentence. Accordingly the life sentence was substituted with time served.
Scope of the Court of Appeal's jurisdiction as a second appellate court on sentence
Jurisdiction is limited to matters of law; severity of sentence is a matter of fact. The appeal succeeded on the pure question of law concerning the statutory conflict, not on severity.
Section 361(a) of the Criminal Procedure Code confines the second appellate court to matters of law, facts having been evaluated by the trial court and re-evaluated by the first appellate court. Severity of sentence is defined as a matter of fact (citing Samuel Warui Karimi). The appellant's challenge was framed as a legal challenge to the legality of the life sentence, which properly fell within the Court's remit.
Legal principles established
#- Where sections 297(2) and 389 of the Penal Code are in apparent conflict as to sentence for attempted robbery with violence, an accused person is entitled to the less punitive of the two sentences.
- On a second appeal under section 361(a) of the Criminal Procedure Code, severity of sentence is a matter of fact and the Court of Appeal's jurisdiction is confined to matters of law.
Court orders
#- 1.Appeal against conviction withdrawn and marked withdrawn
- 2.Appeal against sentence allowed
- 3.Sentence of life imprisonment set aside and substituted with a sentence equal to time already served (about twelve years)
- 4.Appellant set at liberty forthwith unless otherwise lawfully held
- 5.Reasons for the decision of 26th September 2023 reserved and now delivered
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisii
- HCCRA No. 176 of 2011
- Jurisdiction invoked
- Section 361(a) of the Criminal Procedure Code (second appellate court, matters of law only); Rule 34(7) of the Court of Appeal Rules, 2022 (reservation of reasons)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, taking into consideration the confiict between section 297(2) and 389 of the Penal Code and taking into consideration the concession by the State, we considered this to be a fit case to set aside the life imprisonment imposed.
We, therefore, substituted the sentence of life imprisonment with a sentence equal to the time already served (which was about twelve years) and ordered that the appellant be set at liberty unless otherwise lawfully held.
The apparent confiict in the law may only be resolved by Parliament. But the appellant is entitled to the less punitive of the two sentences.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Lelemusi v Republic (Criminal Appeal 48 of 2018) [2025] KECA 2175 (KLR)[2025] KECA 2175 (KLR)11 Dec 2025
Cite this brief
#Cite this brief
Caselaw, "Ndiwa v Republic (Criminal Appeal 290 of 2018) (25 January 2024) (Reasons) [2024] KECA 45 (KLR)", Case Analysis (2024). Criminal Appeal 290 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/45/eng@2024-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.