Samande & 2 others v Republic (Criminal Appeal E013 of 2022) [2025] KECA 1486 (KLR)
The bottom line
#Kenya's Court of Appeal upheld three death sentences for robbery with violence, confirming that positive identification and one statutory aggravating circumstance are enough to convict.
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 ingredients of robbery with violence under section 296(2) of the Penal Code were proved beyond reasonable doubt
- 2.Whether the appellants were positively identified as the perpetrators
- 3.Whether the circumstantial nature of the evidence could sustain a conviction
- 4.Whether the alibi defences were properly considered and rejected
- 5.Whether the mandatory death sentence under section 297(2) of the Penal Code should be disturbed in light of Republic v. Mwangi
Key legal issues
#Ingredients of robbery with violence
The offence was proved beyond reasonable doubt as there were three offenders who beat and struck the victims during the robbery, satisfying section 296(2)
The court restated that robbery with violence is committed where the offender is armed with a dangerous weapon, is in company of one or more persons, or wounds, beats, strikes or uses personal violence at or around the time of the robbery. On the evidence, the appellants drugged the victims, tied them, slapped and assaulted them for about thirty minutes while stealing the vehicle and personal items. Any one of the statutory circumstances suffices.
Positive identification of the perpetrators
The circumstances were conducive to positive identification; there was no case of mistaken identity
The offence occurred during the day. The 3rd appellant had been in the company of the victims from about 8:00 a.m. until 1:00 p.m. when he turned on them, and the 1st and 2nd appellants engaged with the victims for roughly thirty minutes. The appellants were arrested shortly after the incident, some in possession of the stolen motor vehicle, and stolen items were recovered in the vehicle.
Mandatory death sentence
The Court could not interfere with the mandatory death sentence, which remains lawful pending Supreme Court determination
Section 297(2) of the Penal Code prescribes death in mandatory terms for robbery with violence where the aggravating circumstances exist. Relying on the Supreme Court's decision in Republic v. Mwangi (ISLA), the Court held that until a challenge to mandatory sentences reaches the Supreme Court, such sentences are lawful and cannot be interfered with. The appeal on sentence therefore failed.
Alibi defences
The defences were considered by the two courts below and did not cast doubt on the prosecution evidence
The appellants gave testimony, mostly unsworn, asserting alibis. The Court found the prosecution witnesses were thoroughly cross-examined and their evidence remained unshaken, and that both courts below had considered the defences and found they did not dislodge the prosecution case. The second appellate court would not disturb concurrent findings of fact.
Legal principles established
#- A second appellate court confined to questions of law must accept the findings of fact of the lower courts and not interfere unless no reasonable tribunal could have reached the same conclusion
- Proof of any one of the three circumstances in section 296(2) of the Penal Code suffices to constitute robbery with violence
- Until a challenge to mandatory sentences is taken up all the way to the Supreme Court, such sentences are lawful and cannot be interfered with by appellate courts
Court orders
#- 1.The appeal against conviction is dismissed and the convictions for the two counts of robbery with violence are upheld
- 2.The appeal on sentence is dismissed and the death sentences imposed by the trial court and upheld by the High Court are 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. 91A, 91B and 91C of 2017
- Jurisdiction invoked
- Second appellate jurisdiction under the Court of Appeal's appellate powers over appeals from the High Court confined to questions of law (Criminal Procedure Code appellate framework)
Relief refused
#Quashing of convictions on both counts
The ingredients of robbery with violence were proved beyond reasonable doubt and identification was positive
Setting aside the death sentence
The mandatory death sentence remains lawful until challenged up to the Supreme Court, per Republic v. Mwangi
Costs
No costs order 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.
Where a right of appeal is confined to questions of law an appellate court has loyalty to accept the findings of fact of the lower court(s)
We find that as rightly stated by the two courts below, the circumstances were conducive enough for positive identification of the perpetrators. Certainly, there was no case of mistaken identity.
The evidence established that the ofience of robbery with violence, in line with section 296 (2) of the Penal Code, was proved beyond reasonable doubt since there were three ofienders who at time of the robbery, beat and struck the victims as exemplified above herein.
Accordingly, the appellants’ appeal on sentence lacks merit and it is hereby dismissed.
Accordingly, we find that two courts below properly established that the appellants were properly convicted for the two counts of robbery with violence. We shall therefore not disturb those findings.
Issues in the judgment
#The judgment does not state the Court of Appeal case number of the present appeal; the appeal before this Court is identifiable only through the underlying High Court appeal numbers
The particulars of the charge refer to two mobile phones valued at Kshs. 6,000.00 and no money, yet the appellants' submissions and parts of the evidence discuss money allegedly stolen; the record is internally inconsistent on what was stolen from PW1 and PW2
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samande & 2 others v Republic (Criminal Appeal E013 of 2022) [2025] KECA 1486 (KLR)", Case Analysis (2025). Criminal Appeal (as stated in record; appeals from Narok HCCRA No. 91A, 91B and 91C of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1486/eng@2025-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.