The judgment exposes the State to potential future litigation on the Bill of Rights.
When Daniel Njihia Miano challenged his 14-year jail term, he had hoped for relief and a chance to reconnect with his family.
Instead, the Court of Appeal last week upheld an earlier ruling handing him a death sentence, highlighting the risks of appealing criminal convictions.
Had he not appealed, Miano would be a free man today, having been initially sentenced to 14 years in prison in December 2010. The High Court later enhanced that sentence to death in October 2012.
The Court of Appeal dismissed his second appeal, confirming the High Court’s decision.
Miano was charged with robbery with violence over a September 2010 attack in Nyandarua County, during which Philip Karuoya Wambugu was robbed of Sh2,100 and two mobile phones, with the total value of stolen items amounting to Sh6,750.
The incident occurred at Ritaya village, where the attackers, armed with pangas and rungus, assaulted the victim. The prosecution presented five witnesses, including the complainant, while Miano denied the allegations and gave an unsworn defence as the sole defence witness.
The trial court convicted him of the lesser offence of simple robbery and sentenced him to 14 years in prison. Dissatisfied, Miano appealed both the conviction and sentence. The prosecution countered with a notice seeking a harsher penalty.
When the case reached the High Court, the bench warned him of the risks of appealing under the prosecution’s notice to enhance his sentence, but Miano chose to proceed regardless.
The High Court agreed with the prosecution, ruling that the evidence supported the more serious charge of robbery with violence and substituted the 14-year term with a death sentence.
Still aggrieved, Miano approached the Court of Appeal. His lawyers argued that the High Court erred by enhancing the sentence without formally setting aside the original conviction for simple robbery.
They contended that the conviction for the lesser offence still stood, making the death sentence unlawful. The lawyers maintained that the High Court was “plainly wrong because there were no aggravating circumstances to merit the death penalty.”
The Court of Appeal rejected that argument, ruling that an appellate court may uphold a conviction while altering the sentence, including increasing it, provided the accused is given a fair warning.
“When the High Court finds that a trial court’s sentence was too lenient or illegal, it can enhance that sentence while dismissing the appeal against conviction,” the three-judge bench said.
The court noted that Miano had been clearly informed of the risks and chose to proceed with his appeal.
“We did explain to the appellant the consequences… he, however, elected to proceed,” the court quoted from the High Court’s earlier ruling.
That decision proved costly. The judges affirmed that the evidence showed Miano acted with others during the robbery, a key element of robbery with violence under Kenyan law.
They noted that Miano did not dispute that the evidence supported the elements of the offence. The court also dismissed claims that minor gaps in the record invalidated the sentence.
“This argument, attractive as it is, collapses,” the court ruled, adding that the conviction effectively stood for the more serious offence.
The bench clarified that the Court of Appeal cannot review “sentence severity” if the sentence is legally prescribed under the Penal Code.
The judgment highlighted a critical, often misunderstood aspect of criminal appeals: they can backfire.
Under Kenyan law, appellate courts have wide powers. They may reduce, confirm, or increase a sentence. In some cases, they may substitute it with a more severe penalty if the evidence supports it.
Legal experts say this power is meant to correct trial court errors and ensure justice. However, it places appellants in a precarious position. Before enhancing a sentence, courts must notify the accused and give them a chance to respond. Once that notice is issued, proceeding becomes a calculated risk.
In Miano’s case, the Court of Appeal found that due process was followed. The judges declined to interfere with the death sentence, noting that it remains a lawful penalty for robbery with violence.
They pointed out that prior Supreme Court guidance limiting mandatory death sentences applies only to murder cases, not to offences such as robbery with violence. Consequently, the judges ruled that there was no basis to interfere with the High Court’s decision.
The appeal was dismissed in its entirety as devoid of merit.
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