Gitigi v Republic (Criminal Appeal 79 of 2019) [2025] KECA 1187 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a robbery conviction and death sentence, holding that mandatory sentences under Kenyan law remain valid despite the Muruatetu decision.
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 identification parade conducted was compliant with the law and whether PW2's identification of the appellant was safe
- 2.Whether the prosecution's failure to call the informer as a witness cast doubt on the prosecution case or rendered the evidence of PW3, PW4 and PW5 inadmissible hearsay
- 3.Whether all elements of robbery with violence under sections 295 and 296(2) of the Penal Code were proved
- 4.Whether the mandatory death sentence under section 296(2) of the Penal Code could be interfered with in light of the Muruatetu directions
Key legal issues
#Validity of the identification parade
The parade was conducted in accordance with the National Police Service Standing Orders and PW2's identification of the appellant was proper and positive.
PW5 did not meet the identifying witness before the exercise; PW2 was told the suspect might or might not be present; the appellant chose his position in the eight-member parade and signed the parade form without stating any grounds of dissatisfaction. PW2's prior interaction with the culprit in a well-lit chemist made the subsequent identification reliable, leaving no doubt.
Non-calling of the informer and informer privilege
The prosecution was under no duty to call the informer; informer privilege under sections 132 and 133 of the Evidence Act protected the source, and the evidence was not rendered inadmissible hearsay.
Section 132 of the Evidence Act protects public officers from disclosing communications made in the course of duty where the public interest would suffer, and section 133(1) protects judges, magistrates and police officers from disclosing the source of information about offences. The High Court had correctly applied the principle that an informer is privileged unless his evidence is required to establish the innocence of the accused.
Ingredients of robbery with violence
All ingredients of robbery with violence under sections 295 and 296(2) of the Penal Code were proved: common intention, company of others, a dangerous weapon (AK-47 rifle), and threat of violence.
The evidence established that the appellant acted in company with three others with a common intention of stealing from the chemist; one robber was armed with an AK-47 rifle, a dangerous and offensive weapon; they took cash and a mobile phone and threatened violence on PW2. PW2's evidence, unshaken, sustained the conviction and the appeal court found the conviction safe.
Mandatory death sentence under section 296(2) of the Penal Code
The mandatory death penalty for robbery with violence remains in force; the Court could not interfere with the sentence following the Muruatetu directions.
The penalty under section 296(2) of the Penal Code is couched in mandatory terms. The Supreme Court's directions of 6th July 2021 in Muruatetu clarified that mandatory or minimum sentences in statutes have not been invalidated. The aggravating circumstances justified the death penalty imposed by the two courts below, so the sentence appeal was also dismissed.
Legal principles established
#- On a second appeal, the Court of Appeal considers matters of law only and cannot interfere with concurrent findings of fact by the two courts below unless they are based on no evidence, a misapprehension of the evidence, or wrong principles.
- An informer is privileged and neither the informer nor a police officer may be compelled to disclose the source of information about an offence, unless the informer's evidence is required to establish the innocence of the accused.
- Following the Supreme Court's clarified Muruatetu directions, mandatory or minimum sentences imposed in statutes, including the mandatory death penalty under section 296(2) of the Penal Code, have not been invalidated.
- A person who participates in an identification parade and signs the parade form without voicing objections cannot later impugn the fairness of the parade; an objection should be raised at the point of execution.
Court orders
#- 1.Appeal against conviction dismissed
- 2.Appeal against sentence dismissed
- 3.Conviction and death sentence as imposed by the two courts below upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Narok
- HCCRA No. 53A and 53B of 2017
- Jurisdiction invoked
- Second appeal to the Court of Appeal under section 361(1) of the Criminal Procedure Code (matters of law only)
Relief refused
#Setting aside the conviction on account of an allegedly flawed identification parade
The appellant did not voice reservations when signing the parade form; PW2's identification was positive and based on well-lit interaction with the culprit
Exclusion of evidence or acquittal on account of the informer not testifying
Informer privilege under sections 132 and 133 of the Evidence Act protected the source; the High Court's finding was upheld
Lenient sentence or liberty in place of the death sentence
Mandatory death penalty under section 296(2) of the Penal Code remains valid per the Supreme Court's Muruatetu directions of 6th July 2021
Costs
No order as to costs recorded 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.
Accordingly, the appellant's appeal to this Court on conviction has no merit and must accordingly fail.
We therefore similarly dismiss the appeal on sentence.
Ultimately, we come to the inescapable conclusion that the appellant's conviction was safe.
The Court cannot interfere with concurrent findings of fact by the two courts below, unless such findings are based on no evidence or on a misapprehension of the evidence or where the courts below are shown to have taken into account wrong principles in making their findings
Issues in the judgment
#The judgment cites 'section 132 (1) (sic) sic)' of the Evidence Act in the respondent's submissions and refers elsewhere to section 133 of the Evidence Act for informer privilege, while the High Court quoted 'section 133 of the Evidence Act' - a minor internal inconsistency in provision numbering.
The judgment does not assign a case number to the present appeal before the Court of Appeal; only the High Court appeal numbers (HCCRA No. 53A and 53B of 2017) are given.
The judgment records no costs order and no formal disposition header; the final orders appear only in narrative form at the close of the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gitigi v Republic (Criminal Appeal 79 of 2019) [2025] KECA 1187 (KLR)", Case Analysis (2025). Criminal Appeal (not separately numbered in judgment; appeal from Narok HCCRA No. 53A of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1187/eng@2025-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.