[2019] KECA 832 (KLR)
The Court of Appeal held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional. The appellate court considered the appellant's mitigation, the circumstances of the offence, the value of the items stolen, and the nature of the injury...
Source-derived case information.
- Citation
- [2019] KECA 832 (KLR)
- Parties
- Appellant: Charles Mwinzi Mukungu; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 127 of 2015
- Procedural Posture
- Criminal Appeal / Second Appeal; Sentence Only
- Outcome
- Appeal allowed in part; death sentence set aside and substituted with a ten-year jail term from date of conviction.
- Judges
- RN Nambuye, DK Musinga, GK Oenga
- Legal Topics
- Robbery With Violence, Sentencing Principles, Mandatory Death Sentence, Mitigation, Unconstitutionality of Mandatory Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Mwinzi Mukungu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal; Sentence Only
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 Whether the sentence imposed on the appellant should be substituted with a determinate jail term considering mitigation and circumstances of the offence.
Ratio Decidendi
The Court of Appeal held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional. The appellate court considered the appellant's mitigation, the circumstances of the offence, the value of the items stolen, and the nature of the injury inflicted. Since mitigation was already on record, the Court found it unnecessary to remit the matter to the trial court for resentencing. The Court set aside the death sentence and substituted it with a jail term of ten years from the date of conviction, finding this to be a just and proportionate sentence in the circumstances.
Court Disposition
Appeal allowed in part; death sentence set aside and substituted with a ten-year jail term from date of conviction.
Orders
- The appeal against sentence is allowed.
- The death sentence is set aside.
Full Case Text
Judgment text and source record
35 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: NAMBUYE, MUSINGA & KIAGE, JJ.A.)
CRIMINAL APPEAL NO. 127 OF 2015
BETWEEN
CHARLES MWINZI MUKUNGU..........APPELLANT
AND
REPUBLIC.............................................RESPONDENT
(Appeal from the judgment of the High Court of Kenya at Garissa (Muchemi & Mutuku, JJ.) dated 11thSeptember, 2014
in
HC. CR.A. NO. 5 OF 2014)
*********************
JUDGMENT OF THE COURT
1. The appellant was convicted of robbery with violence and sentenced to death by the trial court at Mwingi. His first appeal against both conviction and sentence to the High Court was unsuccessful, hence this second appeal. However, when the second appeal came up for hearing, the appellant, through Mr. Dome, chose to withdraw his appeal against conviction and instead pursue the appeal in respect of the death sentence only.
2. Mr. Dometold the Court that the Supreme Court of Kenya inFRANCIS KARIOKO MURUATETU & OTHERS v REPUBLIC [2017] eKLR held that the mandatory death sentence was unconstitutional. He submitted that the appellant had already served (8) years in custody and urged us to reduce the sentence to the period already served.
3. On the other hand, Mr. Hassan Abdi, learned counsel for the respondent, urged the Court to refer the matter to the trial court so that the prosecution will have an opportunity to file a pre-sentencing report for the court’s consideration before passing an appropriate sentence.
4. The appellant, jointly with others who were not arrested, while armed with a knife, robbed one Faith Wambui of a cellphone and an ATM card, all valued at Kshs.5,000. In the process of the robbery the appellant and his accomplices inflicted an injury on the victim’s left cheek, which was classified as harm.
5. Upon his conviction, the appellant, who was said to be a first offender, told the trial court in mitigation that he was not married; was aged 30 years; his father was deceased; and was staying with his old grandmother who was depending on him. Though remorseful, the trial magistrate rightly remarked that the death sentence was mandatory for any one convicted of robbery with violence and proceeded to pass the same.
6. In JUMA ANTHONY KAKAI v REPUBLIC [2018] eKLR this Court remarked as follows:
“In its recent decision in FRANCIS KARIOKO MURUATETU & ANOTHER v REPUBLIC [2017] eKLR the Supreme Court of Kenya pronounced that the mandatory aspect of the death sentence as the only lawful sentence was unconstitutional. The Court therefore effectively removed the fetters placed on the Court’s discretion when passing sentence in cases which hitherto carried the death penalty as the only lawful sentence upon conviction.”
6. The Court proceeded to allow the appeal against the death sentence, set it aside and substituted it with a jail term of twenty (20) years from the date of conviction. In the above cited appeal the appellant and his accomplices had robbed a man of a motor vehicle, assorted household goods, Kshs.46,000 and also assaulted several people.
7. In the appeal before us, considering all the relevant factors, we are inclined to interfere with the sentence that was passed by the trial court and affirmed by the High Court. We have taken into consideration the appellant’s mitigation; the circumstances under which the offence was committed; the value of the items stolen and the nature of injury that was inflicted on the victim of the robbery. We are fully cognizant that sentencing is a trial court function but, given that mitigation was taken and is on record it would not conduce to the doing of justice to remit the matter back to the trial court as urged by Mr. Abdi for the Republic.
We hereby allow the appeal; set aside the death sentence and substitute it with a jail term of ten (10) years from 29th January, 2013 when the appellant was convicted and sentenced.
Dated and delivered at Nairobi this 22ndday of March, 2019.
R.N. NAMBUYE
……………….………………
JUDGE OF APPEAL
D.K. MUSINGA
……………………..………..
JUDGE OF APPEAL
P.O. KIAGE
……………………………..
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR