Eliud Njure Gatura & 1 other v Republic
The bottom line
#Kenya's Court of Appeal confirmed a robbery-with-violence conviction and death sentence, ruling the mandatory death penalty remains lawful under Muruatetu 2.
What this practically means
#Executive summary
#Key legal issues
#Whether the identification evidence supporting the conviction on count 2 (attempted robbery with violence) was safe
Yes. The appellant was identified in broad daylight by PW1, PW2 and PW4, corroborated by possession of the pistol used in the attack, and the identification parade was not challenged.
The appellant and his co-accused had posed as customers in PW1's shop earlier, giving an opportunity for identification, and the appellant testified he was touched by a lady during the parade, not challenging his identification. Following Muiruri, the courts below tested the identification evidence with the necessary care and properly convicted.
Whether the doctrine of recent possession properly sustained the conviction on count 1 (robbery with violence of PW3's pistol)
Yes. The pistol was proved to be PW3's, recently stolen, and recovered hidden under a mattress in the appellant's own house, whose ownership the appellant confirmed in his own testimony.
The four elements of recent possession were established: the pistol was allocated to PW3 and lost in a violent robbery, was used in the attempted robbery at which the appellant was identified, and was recovered under a mattress in the house where the appellant was arrested. The appellant's defence evidence that he told the 2nd accused to come to 'my house' at Ihwagi confirmed his ownership of the premises, defeating the claim that he was a mere visitor.
Whether the death sentence should be interfered with on the ground of its unconstitutionality
No. Following Wamwoma and Muruatetu 2, the mandatory death sentence under section 296(2) of the Penal Code remains lawful.
The Supreme Court in Muruatetu 2 clarified that its earlier holding on the unconstitutionality of the mandatory death sentence applied to section 204 of the Penal Code (murder) and that the death sentence for robbery with violence under section 296(2) remains valid until its constitutionality is fully argued before the High Court and escalated to the Court of Appeal, which has not occurred.
Legal principles established
#- On a second appeal the Court of Appeal is confined to matters of law and is bound by concurrent findings of fact of the two courts below except in the rarest of cases.
- The elements of robbery with violence need not all be proved; demonstration of one element is sufficient to prove the offence.
- Before relying on the doctrine of recent possession, the prosecution must positively prove possession, that the property is the complainant's, and that it was recently stolen.
- The mandatory death sentence for robbery with violence under section 296(2) of the Penal Code remains lawful following Muruatetu 2.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The conviction and sentence imposed by the trial court and upheld by the High Court are affirmed
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- Second appeal to the Court of Appeal under Section 361(1)(a) of the Criminal Procedure Code, limited to matters of law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eliud Njure Gatura & 1 other v Republic", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1402/eng@2025-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.