Alice v Republic (Criminal Appeal E048 of 2023) [2025] KECA 726 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a robber's appeal, confirming that constitutional challenges to the mandatory death sentence must first be raised in the High Court.
What this practically means
#Executive summary
#Key legal issues
#Sufficiency and treatment of identification/recognition evidence on second appeal
The courts below correctly applied identification principles; the recognition evidence of two long-known witnesses in daylight with immediate arrest was ironclad
The incident occurred at 2:00pm in daylight; both identifying witnesses had known the appellant for many years (recognition rather than identification of a stranger); there was more than one identifying witness; and the crowd arrested the appellant minutes after the attack in the plantation into which the assailants fled. The Etole principles on caution were satisfied and the concurrent findings of the two courts below stood.
Alibi defence
No strict alibi was raised, the ground was new on second appeal, and recognition evidence would have dislodged any alibi
The appellant did not claim to be elsewhere at the time of the attack; he admitted being at the scene when arrested. Further, the ground was not raised at the High Court, divesting the Court of jurisdiction, and even on the most generous reading the strong recognition evidence by two witnesses would have defeated the defence.
Constitutionality of the mandatory death sentence for robbery with violence
The challenge fails: it was raised for the first time on second appeal, and Muruatetu does not extend to robbery with violence absent a prior High Court determination
Relying on the Supreme Court's decision in Joshua Gichuki Mwangi, a constitutional issue not first raised in the High Court cannot be entertained on appeal. Muruatetu 2 limited Muruatetu 1 to murder and directed that challenges to mandatory death sentences for other capital offences be filed and fully argued in the High Court. Cyrus Kavai Onzere confirms the narrow path. The Court nonetheless observed the outcome is unfair and disproportionate and urged reform.
Effect of presidential commutation on appellate jurisdiction over sentence
Commutation of the death sentence to life imprisonment by the President does not divest the Court of jurisdiction to consider an appeal on sentence
The respondent argued that commutation removed the Court's jurisdiction. The Court rejected this, holding that the power of mercy under Article 133 does not erase an appellant's right of appeal against a court-imposed sentence nor effete the Court's jurisdiction properly seized of the appeal.
Legal principles established
#- A second appellate court will not interfere with concurrent findings of fact by the two courts below unless based on no evidence, a misapprehension of the evidence, or demonstrably wrong principles
- The President's exercise of the power of mercy does not extinguish an appellant's right of appeal against sentence nor divest the Court of Appeal of jurisdiction to hear such an appeal
- A constitutional challenge to the mandatory death penalty for robbery with violence must first be raised and fully argued in the High Court before it can be entertained on appeal
- Muruatetu 1 is inapplicable to mandatory death sentences for offences other than murder, including robbery with violence
Court orders
#- 1.The appeal against conviction is dismissed
- 2.The appeal against sentence is dismissed
- 3.The appeal is dismissed in its entirety
- On appeal from
- High Court of Kenya
- not stated in judgment
- Jurisdiction invoked
- Section 361(1) of the Criminal Procedure Code (second appeal on matters of law only); Article 164(3) of the Constitution and section 3(1) of the Appellate Jurisdiction Act referenced
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mwangi v Republic (Criminal Appeal 100 of 2017) [2026] KECA 640 (KLR)[2026] KECA 640 (KLR)25 Mar 2026applied
Cite this brief
#Cite this brief
Caselaw, "Alice v Republic (Criminal Appeal E048 of 2023) [2025] KECA 726 (KLR)", Case Analysis (2025). Criminal Appeal (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/726/eng@2025-05-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.