Robert Kipkorir Kiprotich & 2 Others v Republic
The bottom line
#Kenya's Court of Appeal confirmed that the mandatory death sentence for robbery with violence remains valid, dismissing the appellants' convictions and sentences challenge entirely.
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 prosecution proved the participation of the Appellants in the robbery with violence beyond any reasonable doubt (identification)
- 2.Whether the sentence of death is just in the circumstances
Key legal issues
#Whether the identification of the Appellants was safe and free from error
Identification was positive, in broad daylight, after prolonged exposure; concurrent findings of the two courts below were not disturbed.
The Court found uncontroverted evidence that the robbery occurred in broad daylight and that PW3 and PW4 spent considerable time with the Appellants in the same vehicle before the attack, without feeling threatened. The first appellate court methodically re-evaluated the evidence as required by Okeno. No weakness, let alone a fundamental one, was found in the identification evidence, so the second appeal court would not interfere.
Whether the death sentence for robbery with violence is unconstitutional or should be reduced per emerging jurisprudence
The death sentence is the lawful mandatory penalty for robbery with violence; Muruatetu is confined to murder and does not assist the Appellants.
The Court held that the Supreme Court in Muruatetu and clarified in Joshua Gichuki Mwangi that the declaration of unconstitutionality of the mandatory death penalty applied only to section 204 of the Penal Code (murder). Statutory mandatory sentences remain lawful and courts are bound to impose them until the legislature amends the law. The trial court and the High Court therefore did not err in imposing and upholding the death sentence.
Admissibility of photographs produced by PW5 without calling the photographer
The photographs (Exhibits 3A, 3B, 3C) should not have been admitted, but their exclusion did not weaken the remaining evidence sustaining the convictions.
The High Court correctly held, and this Court agreed, that photographs taken by CPL Charles Kiprono Rotich did not fall within the category of expert reports admissible without the maker under section 77(1) of the Evidence Act. However, the exclusion was inconsequential because the remaining evidence of PW3 and PW4 formed a sound basis for the convictions.
Legal principles established
#- On a second appeal the Court is confined to matters of law but must pay homage to concurrent findings of fact by the two courts below.
- The Muruatetu declaration of unconstitutionality of the mandatory death penalty is specific to murder and does not extend to robbery with violence; statutory mandatory sentences remain lawful and binding.
- Photographs taken by a police photographer are not admissible without calling the maker under section 77(1) of the Evidence Act; only reports of specified experts qualify.
Court orders
#- 1.Appeal dismissed in its entirety
- 2.Convictions and death sentences imposed by the trial court and upheld by the High Court remain in force
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Narok
- HCCR. A No. 29A, 29B & 29C of 2017
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Constitution/statutory framework governing criminal appeals (specific provision not stated in the judgment)
Relief refused
#Setting aside the judgment of the first appellate court, quashing the convictions and setting the Appellants at liberty
Concurrent findings of the two courts below on positive identification were sound; no weakness in the identification evidence
Substitution of the death sentence with a prison term of 15 years
Death is the statutory mandatory penalty for robbery with violence; Muruatetu applies only to murder
Costs
No order as to costs is 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.
In the upshot, we find no merit in this appeal and dismiss it in its entirety.
On a second appeal, such as the one before us, this Court is duty bound not just to consider issues of law only; but also to pay homage to the concurrent findings of fact by the two courts below.
We are satisfied that the Appellants were positively identified in broad daylight. This was not identification in difficult conditions.
That is the current state of the law on prescribed statutory mandatory sentences as pronounced by the highest court in the land. We are all bound to follow it until such time the legislature amends the law.
Mandatory sentences left the trial court with absolutely no discretion such that upon conviction, the singular sentence was already prescribed by law.
Issues in the judgment
#First appellate case number year inconsistency
Amended memorandum of appeal dated 2026 in an appeal numbered E020 of 2023
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Robert Kipkorir Kiprotich & 2 Others v Republic", Case Analysis (2026). Criminal Appeal No. E020 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1813/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.