Imutoka v Republic (Criminal Appeal 121 of 2019) [2024] KECA 259 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that the mandatory death sentence for robbery with violence is unconstitutional and freed a man who spent over 20 years in prison.
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 Honourable Trial Court erred in law and in fact by upholding conviction to death sentence which is manifestly harsh and excessive for the offence of robbery with violence
Key legal issues
#Whether the mandatory death sentence under Section 296(2) of the Penal Code for robbery with violence is unconstitutional
Yes. The reasoning in Muruatetu I applies with equal force; a mandatory death sentence cannot be unconstitutional under one section of the Penal Code and constitutional under another.
The court noted that Section 296(2) is couched in mandatory terms leaving no room for judicial discretion. Relying on Muruatetu I, Christopher Ochieng and Joshua Gichuki Mwangi, it held that mandatory sentences deprive courts of discretion, violate the right to dignity and fair trial, and conflict with separation of powers. The unconstitutionality of mandatory death sentences cannot depend on which section of the Penal Code prescribes them.
Whether the Court of Appeal could interfere with the death sentence confirmed by the High Court on a second appeal limited to matters of law
Yes, on sentence. The jurisdictional bar in Section 361 does not prevent the court from substituting a sentence that the emerging jurisprudence renders unlawful.
The court acknowledged its second-appeal mandate under Section 361(1)(a) to consider only matters of law. It held that sentencing based on a mandatory provision is itself a matter of law. Considering the appellant's mitigation - first offender, relationship with the complainant as brothers, reconciliation, and over 20 years in custody - it exercised its discretion in his favour.
Legal principles established
#- The ratio decidendi of Muruatetu I on the unconstitutionality of the mandatory death sentence under Section 204 of the Penal Code applies equally, mutatis mutandis, to the mandatory death sentence under Section 296(2) of the Penal Code for robbery with violence.
- On a second appeal, the Court of Appeal is confined to matters of law only and will not interfere with concurrent findings of fact by the two courts below unless based on no evidence, misapprehension of the evidence, or wrong principles.
Court orders
#- 1.The appellant's appeal on sentence is allowed
- 2.The sentence of death is set aside
- 3.The appellant is sentenced to the term already served
- 4.The appellant is to be set at liberty forthwith unless otherwise lawfully held
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Bungoma
- not stated
- Jurisdiction invoked
- Second appeal under Section 361(1)(a) of the Criminal Procedure Code, Cap 75
Relief refused
#Challenge to conviction
Counsel for the appellant expressly did not challenge the conviction; only sentence was in issue
Costs
No costs order was made in the judgment.
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.
the ratio decidendi of the Supreme Court in Muruatetu I on the unconstitutional nature of mandatory death sentences under the provisions of Section 204 of the Penal Code equally applies mutatis mutandis and by parity of reasoning to the mandatory nature of death sentences provided for under the provisions of Section 296 (2) of the Penal
it cannot be said that the mandatory nature of the death sentence is unconstitutional in one section of the Penal Code and constitutional in another. To hold otherwise would be absurd and untenable.
Accordingly, the appellant's appeal on sentence is hereby allowed. We set aside the sentence of death and order that he be set at liberty forthwith unless otherwise lawfully held.
Only matters of law fall for consideration and the court will not normally interfere with concurrent findings of fact by the two courts below unless such findings are based on no evidence, or are based on a misapprehension of the evidence, or the courts below are shown demonstrably to have acted on wrong principles in making the findings.
Issues in the judgment
#The appellant's names and details differ between the charge particulars and the narrative; the co-accused is called 'Jeremiah Ingusi Ngala' in one passage and 'Jeremiah Ingusu Ngala' in another.
The judgment's delivery date (8th March 2024) differs from the plenary hearing date of 7th November 2023 with no explanation of the interval; also the appeal number is not stated in the judgment provided.
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.
- Muhia v Republic (Criminal Appeal E010 of 2022) [2025] KECA 1572 (KLR)[2025] KECA 1572 (KLR)3 Oct 2025
Cite this brief
#Cite this brief
Caselaw, "Imutoka v Republic (Criminal Appeal 121 of 2019) [2024] KECA 259 (KLR)", Case Analysis (2024). Criminal Appeal (not expressly numbered in the judgment provided). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/259/eng@2024-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.