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Court of AppealDismissedCriminal Appeal (not specified in judgment)

Barawa v Republic (Criminal Appeal E022 of 2023) [2025] KECA 1524 (KLR)

Court of Appeal of Kenya
3 October 2025
2,480 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal upheld a death sentence for motorcycle robbery, saying the Supreme Court's Muruatetu directions left it powerless to reduce the sentence.

What this practically means

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Executive summary

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The appellant, Nickson Barawa, was convicted by the Chief Magistrate's Court at Malindi of robbery with violence contrary to Section 296(2) of the Penal Code and sentenced to death for robbing a motorcycle rider at knifepoint in daylight on 10th December 2011. His first appeal was dismissed by the High Court (Chitembwe and Ongeri, JJ.) on 27th April 2016. On this second appeal, the Court of Appeal at Malindi (Gatembu Kairu, Murgor and Laibuta, JJ.A.) confined itself to matters of law under Section 361(1) of the Criminal Procedure Code and framed four issues: identification, the ingredients of the offence, consideration of the defence, and sentence. The Court held that the concurrent findings that the appellant was positively identified in daylight by two witnesses and apprehended in the bush with the motorcycle were well founded on the evidence, that the ingredients of robbery with violence were proved (the appellant was armed with a knife and in company with another), and that his defence was not an alibi since he admitted presence at the scene. On sentence, the Court acknowledged that the minor injuries and recovery of the motorcycle would ordinarily justify a discretionary, non-death sentence, echoing Omudi v Republic, but held that in light of the Supreme Court's directions of 6th July 2021 in Muruatetu it could not interfere with the death sentence. The appeal was accordingly dismissed in its entirety. Advocates should note that the judgment simultaneously records that the case merited a non-death sentence and declines to grant that relief, which has practical significance for resentencing applications.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the concurrent findings by the trial court and the High Court that the appellant was positively identified are supported by evidence
  2. 2.Whether the ingredients of the offence of robbery with violence were established to the required standard
  3. 3.Whether the defence put forth by the appellant was considered
  4. 4.Whether this Court has any basis for interfering with the sentence

Key legal issues

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01

Positive identification by concurrent findings of fact

Holding

The concurrent findings that the appellant was positively identified were well supported by evidence and could not be disturbed on second appeal.

Reasoning

PW1 was approached by the appellant and another in daylight and spent sufficient time with them; PW2 also came to PW1's rescue; the appellant was apprehended in the bush alongside the motorcycle by members of the public. These concurrent findings were based on evidence and, being factual, were beyond the Court's remit on second appeal.

p. 4
02

Ingredients of robbery with violence

Holding

The ingredients of robbery with violence were established: the appellant was armed with a knife and in the company of another person when he robbed PW1.

Reasoning

Applying Johana Ndungu v Republic, proof of any one of the three Section 296(2) circumstances suffices. Here two were present: the appellant was armed with a knife used to inflict injuries, and he acted in company with another person who took the motorcycle.

p. 5
03

Alibi defence

Holding

The appellant's defence was not an alibi because he admitted presence at the scene area, so the complaint that it was unconsidered failed.

Reasoning

An alibi requires the accused to place himself elsewhere at the time of the offence. The appellant said he was constructing a house at home before going to the forest where the offence occurred, which acknowledges presence at the scene, not absence from it.

p. 5
04

Death sentence

Holding

The Court declined to interfere with the death sentence, citing the Supreme Court's directions of 6th July 2021 in Muruatetu, despite observing that the circumstances merited a non-death sentence.

Reasoning

The Court acknowledged that minor injuries and recovery of the motorcycle would ordinarily justify a discretionary, non-death sentence, as in Omudi v Republic. However, following the Supreme Court's July 2021 directions in Muruatetu, the Court held itself unable to interfere with the mandatory death sentence upheld by the courts below.

p. 5

Legal principles established

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  • On a second appeal the Court of Appeal is confined to matters of law under Section 361(1) of the Criminal Procedure Code, unless the lower courts failed to consider relevant matters or their factual findings were plainly wrong.
  • A second appellate court will not interfere with concurrent findings of fact of the two courts below unless they are shown not to have been based on evidence.
  • Proof of any one of the three circumstances prescribed in Section 296(2) of the Penal Code constitutes the offence of robbery with violence.

Court orders

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  1. 1.Appeal dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Malindi
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code (second appeal confined to matters of law)

Relief refused

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Interference with the death sentence

Bound by the Supreme Court's directions of 6th July 2021 in Francis Karioko Muruatetu & Another v Republic; Katiba Institute & 5 Others (Amicus Curiae)

p. 5

Claim that identification evidence was unsafe

Identification by two witnesses in daylight and apprehension at the scene with the motorcycle

p. 4

Claim of an unconsidered alibi defence

The defence placed the appellant at the scene, so it was not an alibi

p. 5

Costs

No costs order recorded in the judgment.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In conclusion, the appeal fails and is accordingly dismissed.
p. 5Final orders / disposition
This being a second appeal, under Section 361(1) of the Criminal Procedure Code, the mandate of the Court is confined to matters of law.
p. 3Scope of second appeal
The conclusion by the trial court and the High Court that the appellant was positively identified is well supported by evidence.
p. 4Identification
The ingredients of the offence were established against the appellant and there is no merit in his complaint in that regard.
Robbery with violence elements
That is not an alibi defence. He was placed at the scene, where he acknowledges he was present.
p. 5Alibi

Issues in the judgment

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material

Internal tension: the Court finds the circumstances merited a sentence other than death yet dismisses the sentence complaint as powerless to act, recording both positions verbatim.

minor

The appellant is variously described as being armed with a 'sword' in the charge particulars but a 'knife' in the evidence relied on by the Court.

minor

The complainant's name appears as 'Rama Gona' in the particulars but as 'Karama Gona' in the narrative of the evidence.

minor

The appeal number and neutral citation are not stated in the judgment text.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Barawa v Republic (Criminal Appeal E022 of 2023) [2025] KECA 1524 (KLR)", Case Analysis (2025). Criminal Appeal (not specified in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1524/eng@2025-10-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.