Chamwada & another v Republic (Criminal Appeal 167 of 2019) [2025] KECA 2278 (KLR) (19 December 2025) (Judgment)
Neutral citation:
[2025] KECA 2278 (KLR)
Republic of Kenya
Criminal Appeal 167 of 2019
MS Asike-Makhandia, HA Omondi & LA Achode, JJA
December 19, 2025
Between
Lawrence Chamwada
1st Appellant
Silas Asava
2nd Appellant
and
Republic
Respondent
(Being an Appeal from the Judgment of the High Court of Kenya at Kakamega, (Mwita, J.) dated 26th September, 2016 in HCCRA No. 53 of 2015
Criminal Appeal 53 of 2015
)
Judgment
1.This second appeal was lodged by the appellants against the judgment delivered on 26th September 2016 by the High Court of Kenya at Kakamega (Mwita, J.) in Kakamega High Court Criminal Appeal No 53 of 2019 which arose from the judgment of the Chief Magistrate’s Court at Vihiga in Criminal Case No. 726 of 2013. The appellants were charged with two counts. The first count was that of robbery with violence contrary to section 295 as read with section 296 (2) of the Penal Code. Particulars stated that on the night of 25th and 26th July, 2013, at Kegoye village in Vihiga County jointly with others not before court, while armed with offensive weapons, namely, pangas, robbed AM1 fourteen plates, four sufurias, one weighing machine, 6 kilograms of beans, all valued at Kshs.10,000/=, the property of AM and at the time of such robbery, used actual violence to the said AM.
2.The second count was gang rape contrary to section 10 of the Sexual Offences Act, whose particulars stated that on the night of 25th and 26th July, 2016 at the same village, and location within Vihiga County, in association with others not before court, intentionally and unlawfully gang raped AM, a woman aged 52 years. The appellants faced an alternative charge of indecent act on a woman contrary to section 11(1) of the same Act, particulars being that on the night of 25th and 26th July 2013, at the same village, location and county, willfully and unlawfully caused their genital organs namely penis to make contact with the genital organ, namely, vagina, of [particulars withheld] a woman aged 52 years. 1 Initials used to protect her identity as she was also sexually assaulted
3.The appellant and the co-accused entered a plea of not guilty, and their trial proceeded, ultimately resulting in the conviction and death sentence of the appellants.
4.Aggrieved, they appealed to the High Court of Kenya at Kakamega against the whole decision, and after hearing it on the merits, the learned judge dismissed it in its entirety.
5.The appellants are now before this Court on a second appeal on one singular ground challenging the harshness and excessiveness of the death sentence imposed on them by the trial court and upheld by the first appellate court.
6.At the plenary hearing, Ms. Awuor appeared for the 2nd appellant while Mr. Kilambyo was present for the respondent. The 1st respondent withdrew his appeal.
7.Ms. Awuor, learned counsel argued that the sentence of death imposed on him was unconstitutional as it violates Articles 25[a][c], 28 and 29 of the Constitution. Relying on the case of Francis Karioko Muruatetu & Another vs. Republic [2017] eKLR, the appellant contended that the appellant was sentenced to death which sentence was declared unconstitutional.
8.In rebuttal, the respondent submitted that the sentence meted on the appellant was lawful and there is no basis on which the Court should interfere; and that in any event, the issue regarding the constitutionality of the death sentence was being raised for the first time. Relying on the case of Kenya Commercial Bank Limited vs. Osede [1982] eKLR, the respondent maintained that the argument has no basis as it was being raised for the 1st time in this appeal.
9.It was further contended that although the appellant based his argument on the holding in Muruatetu case (supra), the Supreme Court in Republic vs. Joshua Gichuki Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) has since reiterated that the court’s decision in Muruatetu did not invalidate minimum mandatory sentences in the Penal Code, the Sexual Offences Act or any other statute. That the appellant’s conviction was safe and the sentence meted out was lawful.
10.This being a second appeal, this court is restricted under Section 361(1) (a) of the Criminal Procedure Code to considering matters of law only as stated by this Court in Stephen M’Irungi & Another vs. Republic 1982 – 88 1KAR 360:
11.Having considered the record, the grounds of appeal, the submissions of both parties and the Court’s mandate, the main issue that falls for determination is whether the death sentence imposed on the appellant for the offence of robbery with violence was excessive or unlawful. The issue of mandatory death sentences was revisited by this Court way back in 2008 by a five Judge bench in the case of Joseph Njuguna Mwaura & Others vs. Republic (2008) KEHC 3435 (KLR). The Judges observed;
12.From his submissions, the appellant has relied heavily on (Muruatetu 1), which outlawed the mandatory nature of the death sentence imposed in murder cases. Applying the same rationale, the holding must likewise extend to the other capital offences.
13.However, the Supreme Court clarified in Muruatetu & Another vs. Republic; Katiba Institute & 4 Others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6th July 2021) (Directions)(“Muruatetu 2”), that the principles in Muruatetu 1 applied solely to murder cases. The Court stated that:
14.Similarly, in the case of Wamwoma vs. Republic (Criminal Appeal 19 of 2018 [2024] KECA 546 (KLR) it was stated as follows:
15.The appellant was sentenced to death by the trial court after it considered the plea in mitigation. Those findings were upheld by the High Court. Section 297 (2) of the Penal Code provides that if the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the assault, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death. The sentence provided therein is couched in mandatory terms.
16.Furthermore, the Supreme Court of Kenya emphasized in the case of Republic vs. Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [supra] that until a challenge to mandatory sentences is taken up before the courts all the way to the Supreme Court, such sentences are lawful and cannot be interfered with. There is therefore no reason to interfere with the sentence, which, as passed by the trial court, was legal. The upshot is that this appeal lacks merit and is dismissed.
DATED AND DELIVERED AT KISUMU THIS 19TH DAY OF DECEMBER, 2025.ASIKE-MAKHANDIA......................................JUDGE OF APPEALH. A. OMONDI.......................................JUDGE OF APPEALL. ACHODE.......................................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR