Robert Kipkorir Kiprotich & 2 Others v Republic

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mobile phone make Itel worth Ksh 2200/= all totalling Ksh 854,700/= on 3/10/2013 at Ololulunga in Narok South District within Narok County, and used actual violence on him during the time of such robbery. 3. The particulars of the offence in count 2 were that on the same day and place, the Appellants jointly robbed Justus Kipkorir Bett of a mobile phone make FOR ME worth ksh 2000/=, cash Ksh 200/=, and ignition keys valued at Ksh 300/= all valued at Ksh 2700 and used actual violence against him during the said robbery. 4. The Appellants pleaded not guilty to the charges and a full trial ensued before Hon. T.A Sitati (Ag SRM). The prosecution called seven witnesses in support of its case against the Appellants. They comprised: the two victims of the robbery Nicholas Kebenei [PW3] and Justus Kipkorir Bett [PW4], Edwin Kupere Kiprotich [PW1] a clinical officer at Narok District Hospital who filled the P3 form in respect PW3, Livingstone Cheruiyot [PW2] the registered owner of MV Reg. No. KBV 239S, F.NO. 46623 PC Kiilu Paul (5) scenes of crime officer, F.NO. 226503 AP PC Wesley Ngetich {PW6} who arrested the 1st Appellant and rescued him from irate members of the public on 3/10/2013, and F. Page 3 of 20

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NO. 83958 PC Page 4 of 20

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Ronald Chemosit (PW7) the investigating officer. The Appellants gave unsworn testimonies in the nature of alibis and called no other witnesses in support of their respective defences. 5. The trial court considered, evaluated and weighed the evidence tendered by the prosecution against that tendered by the defence. The learned magistrate found that the ingredients constituting robbery with violence had been established beyond reasonable doubt and were on the evidence before court uncontested. There was uncontested evidence that the assailants were three in number, they were armed with a knife, they used actual violence against both complainants, most intensely on PW3 upon whom they inflicted serious injuries as detailed in the P3 form, and they stole money and phones from their victims. 6. The only issue for determination before the trial court narrowed down to one of identification of the persons who had perpetrated the offence and in particular whether the Appellants were the culprits. The trial court found: that the three Appellants were positively identified by PW3 and PW4 as the assailants. That the trio were exposed to PW3 Page 5 of 20

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and PW4 for a long time both before and during the robbery. The Page 6 of 20

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1st Appellant was with PW3 and PW4 for a period of over 2 hours, during day time. PW3 and PW4 had sufficient time to positively capture his appearance. He was arrested 30 minutes after the robbery, not far from where the stolen car had hit a tree stump and jammed. PW3 and PW4 immediately recognized and identified him as the person who whipped out the knife/sword, bit PW3, seized control of the motor vehicle and drove off with it once the driver of Probox Reg. No. KBV 239S was violently overpowered and yielded after his testicles were squeezed. 7. As for the 2nd Appellant the trial court found that the exposure to PW3 and PW4 before and during the robbery was long enough to give them sufficient chance to positively pick him out three days later (on 6th October, 2013) at Silibwet trading centre leading to his arrest. The magistrate found that an identification parade was unnecessary in those circumstances and his identification was proper. 8. Regarding the 3rd Appellant the trial court found that the evidence against him was inextricably tied up to the other two. He too had been in close contact with the victims before and during the robbery. He was also easily picked Page 7 of 20

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by the complainants and arrested December, 2013 Page 8 of 20 in Sotik on 2nd

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which was about 2 months after the Consequently the trial court concluded robbery. that the prosecution had proved the offence of robbery with violence against each of the Appellants in count 2 and attempted robbery with violence in count 1. 9. As for the Appellant’s unsworn statements the trial court considered and rejected them in light of the positive, credible and direct eye witness evidence of PW3 and PW4 which placed the three at the scene of the crime on 3 rd October, 2013. The learned magistrate found that the unsworn statement of the 1st Appellant did not shake off the cogent and straight forward prosecution evidence; the 2nd Appellant’s statement did not create any reasonable doubt in the court’s mind as to his identification, and the 3rd Appellant’s statement could not withstand the evidence laid against him. Accordingly he found them guilty, convicted them under Section 215 of the CPC and sentenced them to death. 10. Aggrieved by that verdict the Appellants lodged three separate appeals being Narok High Court Criminal Appeal Nos. 29A, 29B and 29C of 2015. The appeals were consolidated and heard together. The High Court J. M. Page 9 of 20

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Bwononga J re- appraised the evidence and made his own independent Page 10 of 20

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conclusions consistent with the duty of a first appellate court as laid down in Okeno vs. R (1972) EA 32. He found that the convictions were based on sound evidence and dismissed the three appeals in their entirety in a judgement delivered on 2nd March, 2017. 11. The learned judge was quite methodical and meticulous in his analysis of the evidence vis-à-vis the grounds of appeal raised by each Appellant in the first appeals. He noted that whereas the 1st Appellant had foisted seven grounds in his petition of appeal, the 2nd Appellant had raised five grounds and the 3rd Appellant had raised 6 grounds appeal but except for grounds 3 and 4 in the 2 nd Appellants grounds of Appeal the rest were cross cutting. The judge considered and rejected all but one ground of appeal which related to a challenge on the production of the photographs of MV Reg. KBV 239S by PW5 and admission in evidence without calling CPL Charles Kiprono Rotich who had taken them. In the judge’s view and we agree with him those photographs should not have been admitted in evidence under the provisions of section 77(i) of the Evidence Act, because they do not fall under the Page 11 of 20

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category of reports that can be admitted in evidence without calling the maker to testify and produce Page 12 of 20

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them as exhibits in court. The judge held that in terms of Section 77(i) of the Evidence Act (CAP) 80 Laws of Kenya, only the reports of a Government analyst, a ballistics expert, a document examiner and a geologist are admissible in evidence without calling the said experts to testify and produce them as exhibits in court. Though that ground succeeded and the judge excluded the subject photographs- Exhibit 3A, 3B, and 3C from the evidence; he nevertheless found that the exclusion did not affect the other evidence on record, which formed a sound basis for convicting the Appellants as the perpetrators of the robbery against PW3 and PW4. 12. Critically the judge considered and dismissed the Appellants’ contention that the trial court had convicted them when the prosecution had not proved its case against each one of them beyond any reasonable doubt and when they had not been properly identified. He agreed with the trial court that the offence was committed in broad day light and the appellants were positively identified by PW3 and PW4. That the Appellants had been with the two complainants both before and during the robbery a period of over 2 hours, thus affording them Page 13 of 20

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ample opportunity to see the Appellants’ Page 14 of 20

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appearance sufficiently enough to subsequently identify and point them out to the police. Consequently he dismissed the first appeal and upheld both conviction and sentence. 13. Aggrieved by that decision the Appellants filed this second appeal. In the amended Memorandum of Appeal dated 24th February, 2026 the Appellants posit five grounds. They say the learned first appellate court judge erred in law: a) in his appreciation of the law and the evidence adduced against the Appellants; b) by upholding their conviction and sentence yet they had not been properly identified as the assailants; c) when he found that they had participated in the robbery; d) when he applied the doctrine of common intention; and e) by upholding the death sentence contrary to emerging jurisprudence. 14. We heard the appeal on 28 th April 2026. In his submissions in support of the appeal Mr Matoke Learned counsel for the Appellants relied on the written submissions dated 4 th February, 2026 and cited case law. He identified two issues for resolution by the Court namely; (i) whether the prosecution proved the participation of the Appellants in the robbery with violence beyond any reasonable doubt and (ii) Whether the sentence of death is just in the Page 15 of 20

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circumstances. 15. The Appellant’s Counsel submitted that the prosecution did not prove that they were the three persons who committed Page 16 of 20

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the offence of robbery with violence against PW3 and PW4 on 3rd October, 2013. That the evidence of identification against them was unsafe and unreliable. That the concurrent findings by the two courts below that the Appellants were positively identified are not supported by the evidence tendered by PW3 and PW4. 16. He further submitted that the prosecution bore the burden of proving not only that a robbery occurred but that each of the three Appellants participated in the robbery beyond reasonable doubt which it failed to discharge. He contended that the High court judge addressed the issue of identification but failed to appreciate that there were fundamental weaknesses in the prosecution evidence in relation to the identification of each of the three Appellants. Counsel highlighted the perceived weaknesses as follows: that PW3 admitted that; he did not see the person who held his neck from the rear of the seat of the car; he never described any of the attackers to the police, that robbery with violence incidents are usually violent and chaotic, and that people resemble each other; that PW4 admitted that no prior description of the appellants was given to the police of any of the Appellants, that they Page 17 of 20

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merely spotted persons resembling Page 18 of 20

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the 2nd and 3rd Appellants ; that no identification parade(s) was conducted which fatally weakens the prosecution case; and the 1st Appellant was arrested by members of the public who were never called to testify at the trial. Argued that the identification of the Appellants was unreliable, not free from error and thus unsafe. 17. On the law relating to identification Counsel cited Francis Kariuki Njiru & 7 others vs. Republic (2001) eKLR where the Court emphasised the need for careful scrutiny of the evidence relating thereto stating as follows: “The law on identification is well settled and this Court has from time to time said that the evidence relating to identification must be scrutinized carefully, and should only be accepted and acted upon if the court is satisfied that identification is safe and free from the possibility of error. The surrounding circumstances must be considered (see R vs. Turnbull (1976) 63 Cr. App. R.132). Among the factors the court is required to consider is whether the eye witness gave a description of his or her attacker or attackers to the police at the earliest opportunity or at all.” 18. On the doctrine of common intention, counsel argued that it was inapplicable in the circumstances of this case because the identification of the Appellants was doubtful. Counsel argued that as those doubts were not resolved, Page 19 of 20

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the respective alibis advanced by the Appellants were plausible. Page 20 of 20

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Consequently, the Appellants urged us to set aside the judgement of the first appellate court, quash the conviction, set aside the sentence and set the Appellants at liberty. 19. In the alternative the appellants urged us to substitute the death sentence with a prison term of 15 years, contending that the sentence meted out on them violates article 25 of the constitution which prohibits torture and cruel, inhuman or degrading punishment. He cited the Francis Karioko Muruatetu & Another vs. Republic; Katiba Institute & 4 Others (Amicus Curiae) [2021] KESC 31(KLR) which we note is in respect of unconstitutionality of mandatory death sentence in murder cases and not for all offences for which the death penalty is prescribed by law as contended by the Appellants; Paul Mungai Kingora vs. Republic (Criminal Appeal No. 41 of 2017 (2024) KECA 739(KLR) which counsel contended applied the principles in the Muruatetu a contention we note is incorrect because the Court in that case did not specifically refer to the Muruatetu case but instead adverted to a trend by courts of moving away Page 21 of 20

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from the death penalty and life sentences and embracing sentences appropriate to the circumstances of the case. In our view the decision is not evidence of the application of the Page 22 of 20

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principles set by the Muruatetu case in regard to the unconstitutionality of mandatory death sentence for other offences, other than for the offence of murder because the Supreme Court categorically stated that “Muruatetu cannot be the authority for stating that all the provisions of the law prescribing mandatory or minimum sentences are inconsistent with the constitution.” Counsel also cited Wycliffe Wangusi Mafura vs. Republic (2018) KECA 798(KLR) in support of the proposition that ‘’this Court has jurisdiction to either remit the matter for sentence rehearing or impose such sentence as the trial court could lawfully have imposed’’ and urged us to substitute the death sentence with a prison term of 15 years each; because the Appellants are first offenders who have expressed remorse, the complainants were not injured, the stolen vehicle was recovered and the value of the stolen items was minimal. He submitted that a sentence of 15 years imprisonment would meet the objectives of punishment while allowing for rehabilitation. 20. Mr. Omutelema, learned Senior Assistant Director of Public Prosecutions relied on written submissions dated 2 nd December, 2025 and cited case law in opposition to the Page 23 of 20

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appeal. Essentially he submitted that the Appellants were positively identified by PW3 and PW4 whose evidence the trial court found was direct, cogent, credible and truthful. The offence was committed in broad daylight, ruling out any possibility of mistaken identification. The trial court considered the evidence of identification and rightly concluded that the circumstances were favourable and ideal for positive identification. That the first appellate court re- examined and re-evaluated the evidence of identification and correctly concluded that the Appellants were the persons who robbed PW3 and PW4. That there were concurrent findings of fact by the two courts that the PW3 and PW4 positively identified the Appellants. That those findings were right and should not be disturbed by this Court. Counsel cited PNK vs. Republic KECA 553 (KLR) in support of the proposition that on a second appeal, this Court should pay homage to the concurrent findings of the two courts on the proven facts on the basis of which the impugned decision was made. 21. On whether the element of common intention was proved Counsel submitted that there was direct evidence that the robbery was committed jointly by the three Appellants: Page 24 of 20

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That the 3rd Appellant gave instructions to start the robbery. The Page 25 of 20

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1st Appellant removed a knife and attempted to stab PW3. He bit PW3 and took control of the car. The 2 nd Appellant held PW3’s neck tightly, sat on him at the back of the car when PW3 was subdued and took off with PW3’s phone and money. He cited Section 21 of the Penal Code; Wanjiro d/o Wamerio & Another vs. Rex (1955) 22 EACA 521, where the predecessor of this Court held that “common intention generally implies a premeditated plan, but this does not rule out the possibility of a common intention developing in the course of events, though it might not have been there at the start’’ and Rex vs. Tabulayenka s/o Kirya & 3 Others (1943)10 EACA 51. 22. Counsel for the Appellant further submitted that the Appellants unsworn alibi defence statements were rightly rejected as they did not create any doubt in the trial court’s mind and the first appellate judge rightly found that those defences did not surmount the direct evidence of PW3 and PW4 placing them at the crime scene. As regards the death sentence the Respondent’s counsel submitted that the Appellants, did not say anything in mitigation before the trial court, the penalty imposed and Page 26 of 20

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upheld by the High court is provided in law and the Supreme Court has clarified in Page 27 of 20

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Republic vs. Joshua Gichuki Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others, (Amicus Curiae) (Petition E1018 of 2023) (2024) KESC 34 (KLR) that a mandatory sentence provided in law is lawful. Counsel added that there were aggravating circumstances in the instant case which justify the imposition of a death sentence. 23. We have considered the grounds of appeal, the parties rival submissions, together with the cited case law and carefully scrutinized the record of proceedings before the trial court and reviewed the judgments of the two courts below. There is no dispute at all that the offence of robbery with violence was committed against PW3 and PW4 on 3rd October, 2013 by three persons. What is in dispute before us just like in the two courts below is whether the Appellants were positively identified as the persons who committed the offences with which they were charged and convicted at the magistrate’s court. The High Court agreed with the trial court that the Appellants were positively identified by PW3 and PW4, who were on the evidence on record, direct eye witnesses and victims of the robbery. Page 28 of 20

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24. We note that, the Appellants’ principal complaint in this appeal is that their identification as the three persons who Page 29 of 20

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violently robbed PW3 and PW4 was faulty. They say that the evidence of PW3 and PW4 was unreliable and unsafe to found a conviction. According to them there are fundamental weaknesses in the evidence tendered by the prosecution on the crucial question of identification and which the first appellate court failed to see when it reevaluated the record and affirmed the decision of the trial court. So were there fundamental weaknesses in the evidence of the prosecution witnesses which the learned judge failed to see thereby committing an error of law entitling this Court to interfere with his judgement? We do not think so. As we observed earlier in this judgement the first appellate court dealt with the consolidated appeals carefully and methodically considering the issues raised by each Appellant, the evidence on record and the findings of the trial court in turns. For illustration the judge stated as follows regarding the 1 st Appellant in the impugned judgement: “ROBERT KORIR KIPROTICH: APPELLANT IN CRIMINAL APPEAL NO. 29A OF 2017 5. The appellant has raised 7 grounds in his amended petition of appeal. In ground 1, he has faulted the trial court both in law and fact for convicting him when the prosecution did not prove their case beyond reasonable doubt. Page 30 of 20

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In this regard, there is the direct evidence of both Nicholas Kebenei {PW3} and Eustace Kipkorir Bett (PW 4) who Page 31 of 20

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the trial court found that they positively identified this Appellant among the 3 coappellants as one of the robbers. These 2 witnesses were in contact with this appellant when negotiating hire charges in respect of the motor vehicle….Furthermore they accompanied this Appellant up to a particular point, when they had to renegotiate for additional hiring charges in view of the increased distance which they had travelled. The two witnesses described in detail what each of these 3 appellants did at the point of the attack. The defence of this appellant was that of an alibi which the trial court rightly disbelieved. I find that the case against this appellant was proved beyond reasonable doubt. This ground is lacking in merit and is hereby dismissed….” 25. The learned judge further found that; the evidence of PW3 and PW4 was cogent and consistent right from the time when the 1st appellant and his co-appellants pretended to hire PW3’s motor vehicle while their real intention was to rob him; the offence was committed during day time and the 1ST Appellant was arrested in the vicinity of the robbery shortly after the commission of the of the offence; while the 2nd Appellant and third Appellants were arrested upon being pointed out to the police by the complainants on 6th October, 2013 at Silbiwet and 2nd December, 2013 at Sotik respectively. 26. 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 Page 32 of 20

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the two Page 33 of 20

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courts below. This Court cannot lightly depart from those findings, merely because the appellants say that there are fundamental weaknesses in the evidence tendered by the prosecution. We have not found any weakness let alone fundamental weakness in the prosecution case regarding the evidence identifying the Appellants as the culprits. 27. What we find from a careful reading of the record is uncontroverted evidence that the robbery occurred in broad day light and the appellants spent a considerable period of time, travelling together in the same vehicle; and up to the point when the attack started PW3 and PW4 did not feel threatened by the three Appellants. They regarded their mission as a business trip on hire by the Appellants to collect maize from Ololunga. We are satisfied that the Appellants were positively identified in broad daylight. This was not identification in difficult conditions. PW3 and PW4 were not under any stress when they first met the Appellants. Their identification was not unreliable or unsafe as contended by the Appellants. The Appellants were rightly convicted and the High Court did not err when it upheld that conviction. 28. As regards the Appellants’ impassioned plea for a Page 34 of 20

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substitution of the death sentence with a 15 year jail term, Page 35 of 20

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we regrettably are unable to accede to it. Death is the statutory penalty provided in the Penal Code for the offence of robbery with violence. We cannot proceed on the basis of the emerging jurisprudence as urged by the Appellants’ counsel. For the emergence of that jurisprudence has been halted by the Supreme Court of Kenya, which has expressly clarified that its declaration of unconstitutionality of the death penalty in the Muruatetu case was specific to the offence of murder under Section 204 of the Penal Code and did not apply to other offences such as robbery with violence. 29. In addition to that clarification the Supreme Court has specifically held that statutory mandatory sentences remain lawful in Kenya and courts of law are bound to impose them so long as they remain in the statute books. In Republic vs. Mwangi; Initiative for Strategic Litigation In Africa (ISLA) & 3 Others (Amicus Curiae), the Supreme Court stated as follows regarding mandatory sentences: “Mandatory sentences left the trial court with absolutely no discretion such that upon conviction, the singular sentence was already prescribed by law.” 30. We also note that before the Supreme Court’s decision Page 36 of 20

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this Court had earlier stated that: “as judges, our mandate is fidelity to the Constitution and to the law. We cannot Page 37 of 20

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interpret the Constitution and other statutes whimsically where no discretion or window has been provided.’’ That was in Mwaura & 2 Others vs. Republic (Criminal Appeal 5 of 2008 (2013) KECA 541(KLR). 31. So the trial court was not at fault when it imposed the death sentence and neither did the High Court err when it upheld it. 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. 32. In the upshot, we find no merit in this appeal and dismiss it in its entirety. Dated and delivered at Nakuru this 25 th day of September, 2026. J. MATIVO .................................. JUDGE OF APPEAL MURUNGI B. KAIRARIA I certify that this is a True copy of the original Signed DEPUTY REGISTRAR Page 38 of 20

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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J OF APPEAL AHMED ISSACK .............................. ... JUDGE OF APPEAL U D G E Page 39 of 20

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