Ashibabi v Republic (Criminal Appeal 251 of 2019) [2025] KECA 611 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that mandatory death sentences for robbery with violence remain valid, and constitutional challenges must start in the High Court.
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 Court of Appeal can entertain a constitutional challenge to the mandatory death sentence under section 296(2) of the Penal Code raised for the first time on second appeal
- 2.Whether the holding in Muruatetu 1 applies to the mandatory death sentence for robbery with violence
- 3.Whether the death sentence imposed was manifestly harsh, excessive and disproportionate in the circumstances of the case
Key legal issues
#Jurisdiction to entertain a first-instance constitutional challenge on second appeal
The Court is precluded from considering a constitutional challenge to sentence not raised in the High Court
The appellant challenged the constitutionality of the mandatory death sentence for the first time on second appeal. Relying on the Supreme Court's decision in Republic v Joshua Gichuki Mwangi, the Court held that issues must be raised and fully argued in the High Court before escalation to the Court of Appeal. The constitutional argument was therefore not preserved, and the Court is deprived of jurisdiction on that ground.
Applicability of Muruatetu 1 to robbery with violence
Muruatetu 1 does not apply to the mandatory death sentence for robbery with violence under section 296(2) of the Penal Code
The Supreme Court in Muruatetu 2 directed that the Muruatetu 1 holding is limited to murder cases and that challenges to the mandatory death penalty for other capital offences, including robbery with violence under section 296(2), must be properly filed, presented and fully argued before the High Court and escalated to the Court of Appeal if necessary. The Court of Appeal in Cyrus Kavai Onzere confirmed the narrow circumstances for such challenges.
Second appellate court's remit on sentence
The Court's jurisdiction is confined to matters of law; severity of sentence is a matter of fact
Under section 361(a) of the Criminal Procedure Code, a second appeal lies on matters of law only. Citing Samuel Warui Karimi v Republic, the Court noted that severity of sentence is classified as a matter of fact, so it cannot re-evaluate the sentencing discretion exercised by the trial court and confirmed by the first appellate court absent an error of law.
Legal principles established
#- A constitutional challenge to the mandatory death penalty for offences other than murder must first be raised and fully argued in the High Court before it can be escalated to the Court of Appeal; it cannot be raised for the first time on second appeal.
- Muruatetu 1 is inapplicable to the mandatory death sentence for robbery with violence under section 296(2) of the Penal Code.
- Severity of sentence is a matter of fact, outside the Court of Appeal's second-appeal remit under section 361(a) of the Criminal Procedure Code.
Court orders
#- 1.The appeal against sentence in Count 1 is dismissed
- 2.The death sentence and conviction as upheld by the High Court remain undisturbed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya
- null
- Jurisdiction invoked
- Second appellate jurisdiction under Article 164(3) of the Constitution and section 361(a) of the Criminal Procedure Code, limited to matters of law
Relief refused
#Declaration that the mandatory death sentence under section 296(2) of the Penal Code is unconstitutional
The constitutional issue was raised for the first time on second appeal, depriving the Court of jurisdiction; Muruatetu 2 confines Muruatetu 1 to murder cases
Setting aside the death penalty and substitution with a determinate sentence
The appeal failed on jurisdictional grounds and Muruatetu 2 does not apply to robbery with violence
Costs
No costs order appears 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 upshot is that the appeal fails and must be dismissed. In dismissing it, we echo the remarks of this Court (difierently constituted) in Katana & Another vs. Republic
Orders accordingly.
this Court is deprived of jurisdiction to consider a matter which was not first raised at the High Court.
Muruatetu as it now stands cannot directly be applicable to those cases.
Issues in the judgment
#The judgment attributes the Katana quotation to 'S.G. Kairu, Nyamweya & Lessit, JJ.As stated' with garbled text, and the quoted passage criticises the Muruatetu II-based outcome as unfair, yet the present court nonetheless adopts and dismisses the appeal on that basis
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ashibabi v Republic (Criminal Appeal 251 of 2019) [2025] KECA 611 (KLR)", Case Analysis (2025). Criminal Appeal (unnumbered in judgment as provided). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/611/eng@2025-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.