Barawa v Republic (Criminal Appeal E022 of 2023) [2025] KECA 1524 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the concurrent findings by the trial court and the High Court that the appellant was positively identified are supported by evidence
- 2.Whether the ingredients of the offence of robbery with violence were established to the required standard
- 3.Whether the defence put forth by the appellant was considered
- 4.Whether this Court has any basis for interfering with the sentence
Key legal issues
#Positive identification by concurrent findings of fact
The concurrent findings that the appellant was positively identified were well supported by evidence and could not be disturbed on second appeal.
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.
Ingredients of robbery with violence
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.
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.
Alibi defence
The appellant's defence was not an alibi because he admitted presence at the scene area, so the complaint that it was unconsidered failed.
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.
Death sentence
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.
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.
Legal principles established
#- 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
#- 1.Appeal dismissed
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 at Malindi
- Jurisdiction invoked
- Section 361(1) of the Criminal Procedure Code (second appeal confined to matters of law)
Relief refused
#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)
Claim that identification evidence was unsafe
Identification by two witnesses in daylight and apprehension at the scene with the motorcycle
Claim of an unconsidered alibi defence
The defence placed the appellant at the scene, so it was not an alibi
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.
In conclusion, the appeal fails and is accordingly dismissed.
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.
The conclusion by the trial court and the High Court that the appellant was positively identified is well supported by evidence.
The ingredients of the offence were established against the appellant and there is no merit in his complaint in that regard.
That is not an alibi defence. He was placed at the scene, where he acknowledges he was present.
Issues in the judgment
#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.
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.
The complainant's name appears as 'Rama Gona' in the particulars but as 'Karama Gona' in the narrative of the evidence.
The appeal number and neutral citation are not stated in the judgment text.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.