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Court of AppealDismissedCriminal Appeal No. E020 of 2023· [2026] KECA 1813 (KLR)

Robert Kipkorir Kiprotich & 2 Others v Republic

Court of Appeal of Kenya
25 September 2026
4,380 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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The three Appellants were convicted of robbery with violence and sentenced to death by the Senior Resident Magistrate's Court at Narok. Their consolidated first appeals to the High Court at Narok (Bwononga J) were dismissed in full on 2nd March 2017, the judge finding the convictions based on sound evidence, though he excluded photographs admitted without calling the photographer under section 77(1) of the Evidence Act. On second appeal, the Appellants challenged the safety of their identification by PW3 and PW4 and urged substitution of the death sentence with 15 years' imprisonment, relying on Muruatetu and purported emerging jurisprudence. The Court of Appeal (Mativo, Murungi & Hassan JJ.A) dismissed the appeal in its entirety. It held that on a second appeal it must pay homage to concurrent findings of fact by the two courts below; the identification was positive, in broad daylight, after prolonged exposure, and free from error. On sentence, the Court held that the mandatory death penalty for robbery with violence remains lawful: the Supreme Court's Muruatetu declaration was confined to murder under section 204 of the Penal Code, as clarified in Joshua Gichuki Mwangi, and courts remain bound to impose statutory mandatory sentences until the legislature amends the law. The judgment binds subordinate courts on the continued validity of mandatory sentences for robbery with violence and on the deference owed to concurrent factual findings on second appeal.

Key legal issues

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01

Whether the identification of the Appellants was safe and free from error

Holding

Identification was positive, in broad daylight, after prolonged exposure; concurrent findings of the two courts below were not disturbed.

Reasoning

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.

p. 34
02

Whether the death sentence for robbery with violence is unconstitutional or should be reduced per emerging jurisprudence

Holding

The death sentence is the lawful mandatory penalty for robbery with violence; Muruatetu is confined to murder and does not assist the Appellants.

Reasoning

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.

p. 36
03

Admissibility of photographs produced by PW5 without calling the photographer

Holding

The photographs (Exhibits 3A, 3B, 3C) should not have been admitted, but their exclusion did not weaken the remaining evidence sustaining the convictions.

Reasoning

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.

p. 13

Legal principles established

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  • 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

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  1. 1.Appeal dismissed in its entirety
  2. 2.Convictions and death sentences imposed by the trial court and upheld by the High Court remain in force
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)

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, "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.