Hassan v Republic (Criminal Appeal E004 of 2023) [2026] KECA 4 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed the death sentence for robbery with violence stands, ruling mandatory sentences remain lawful and second appeals cannot challenge sentence severity.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court, in a second appeal confined by section 361(1) of the Criminal Procedure Code to matters of law, can interfere with the sentence imposed
- 2.Whether the mandatory death sentence under section 296(2) of the Penal Code remains lawful in light of the Supreme Court decisions in Muruatetu (2021) and Republic v Mwangi (2024)
Key legal issues
#Scope of the Court of Appeal's jurisdiction in a second appeal against sentence
The Court has no jurisdiction to interfere with sentence on severity grounds, as severity of sentence is a matter of fact and second appeals lie only on matters of law under section 361(1) of the Criminal Procedure Code.
Section 361(1) confines second appeals to matters of law and expressly excludes appeals against sentence except where the High Court enhanced the sentence or the subordinate court lacked power to pass it. Here the death sentence was neither enhanced nor beyond the trial court's powers. The Court therefore lacked power to revisit the sentence, describing its hands as tied by the law and the Supreme Court decisions.
Lawfulness of the mandatory death sentence for robbery with violence after Muruatetu
The mandatory death penalty under section 296(2) of the Penal Code remains lawful; the Supreme Court's clarification in Muruatetu (2021) and its decision in Republic v Mwangi (2024) confirm that mandatory/minimum sentences in statutes stand, and Muruatetu (2017) applied only to murder.
The Court relied on the Supreme Court's 2021 clarification that its 2017 Muruatetu decision applied only to murder cases and that mandatory and minimum sentences prescribed in statutes remain lawful. The 2024 decision in Republic v Mwangi emphasized the lawfulness of mandatory sentences. Consequently the trial court's imposition of the mandatory death sentence after considering mitigation was lawful and could not be disturbed.
Legal principles established
#- In a second appeal, the Court of Appeal considers only issues of law and is bound by findings of fact of the lower courts, and severity of sentence is a matter of fact.
- Mandatory and minimum sentences prescribed in statutes remain lawful; Muruatetu (2017) applied only to murder cases and does not invalidate the mandatory death sentence for robbery with violence under section 296(2) of the Penal Code.
Court orders
#- 1.The appellant's appeal is hereby dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nakuru
- Nakuru High Court Criminal Appeal No. 40 of 2019
- Jurisdiction invoked
- Section 361(1) of the Criminal Procedure Code (second appeal on matters of law only)
Relief refused
#Reduction of the death sentence to 20 years imprisonment as proposed by the appellant
The mandatory sentence under section 296(2) of the Penal Code remains lawful per the Supreme Court, and severity of sentence is a matter of fact outside the Court's second-appeal jurisdiction
Costs
No costs order made 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.
By now, it is evidently clear that this appeal against sentence is a non-starter. Our hands are tied by the law and the Supreme Court decisions. We cannot interfere with the sentence. Accordingly, the appellant’s appeal is hereby dismissed.
Where a right of appeal is confined to question of law, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of fact and law
The Supreme Court on 6th July 2021 in Francis Karioko Muruatetu & Another v Republic; Katiba Institute & 5 Others (Amicus Curiae) [2021] eKLR reiterated that mandatory/ minimum sentences prescribed in the statutes remain lawful.
Issues in the judgment
#The name of the appellant is never stated in the judgment; the case title above could not be drawn from the text and the first field should be verified against the official record.
The judgment text is corrupted in places, using 'ofience' and 'sufier' for 'offence' and 'suffer', and 'afirmed'/'fiouted' for 'affirmed'/'flouted'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hassan v Republic (Criminal Appeal E004 of 2023) [2026] KECA 4 (KLR)", Case Analysis (2026). Criminal Appeal (unnumbered in judgment, second appeal from Nakuru High Court Criminal Appeal No. 40 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/4/eng@2026-01-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.