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
#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
- 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
#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.