Rashid Shikeu Akungwi v Republic
The bottom line
#Kenya's Court of Appeal confirmed that the mandatory death penalty for robbery with violence remains lawful, as the Muruatetu decision applies only to murder.
What this practically means
#Executive summary
#Key legal issues
#Whether the mandatory death sentence under section 296(2) of the Penal Code for robbery with violence was rendered unconstitutional by Muruatetu 1
It was not. The Supreme Court clarified in Muruatetu 2 that Muruatetu 1 applies only to murder under sections 203 and 204 of the Penal Code, so the mandatory death sentence for robbery with violence remains valid and the conviction and death sentence stand.
The appellant abandoned his conviction challenge and relied solely on Muruatetu 1 to attack the mandatory death sentence. The Court noted that courts had applied Muruatetu 1 broadly to all mandatory sentences, but the Supreme Court's clarifying decision in Muruatetu 2 confined its ratio to the offence of murder. Consequently the mandatory death penalty for robbery with violence under section 296(2) remains a lawful sentence, leaving no basis to interfere with the sentence imposed.
The scope of a second appeal
A second appeal is confined to matters of law under section 361(1)(a) of the Criminal Procedure Code; the Court will not disturb concurrent findings of fact absent a misapprehension of the evidence or wrong principles.
Relying on section 361(1)(a) of the Criminal Procedure Code and Karingo v Republic, the Court reiterated that on a second appeal it considers only points of law and will not interfere with concurrent findings of fact of the two courts below unless there was no evidence on which the trial court could find as it did. The appellant having abandoned his conviction grounds, no arguable point of law survived except the sentence issue.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to points of law and will not interfere with concurrent findings of fact of the two lower courts
- Muruatetu 1 declared the mandatory death sentence unconstitutional only for the offence of murder and does not apply to the mandatory death sentence for robbery with violence under section 296(2) of the Penal Code
Court orders
#- 1.The appeal is dismissed
- 2.The conviction and sentence imposed by the courts below are confirmed
- On appeal from
- High Court of Kenya at Kakamega
- Kakamega High Court Criminal Appeal No 16 of 2012
- Jurisdiction invoked
- Second appeal under section 361(1)(a) of the Criminal Procedure Code
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rashid Shikeu Akungwi v Republic", Case Analysis (2024). Kakamega High Court Criminal Appeal No 16 of 2012 (second appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/222/eng@2024-02-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.