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Court of AppealDismissedNyeri Criminal Appeal (not specified in judgment; on appeal from Meru Criminal Appeal No. 54 of 2015)

Lemarleni v Republic (Criminal Appeal 14 of 2018) [2025] KECA 2154 (KLR)

Court of Appeal of Kenya
11 December 2025
3,109 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed a death sentence for robbery with violence, ruling the Muruatetu case does not automatically apply to such offences.

What this practically means

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Executive summary

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The appellant was convicted by the Chief Magistrate's Court at Isiolo on three counts of robbery with violence, one count of attempted robbery, and two firearms-related counts arising from a daytime robbery of passengers in a public service vehicle at Learata, Samburu County, on 27 March 2013, and sentenced to death. The High Court at Meru (Chitembwe, J.) affirmed both conviction and sentence on first appeal. On this second appeal before the Court of Appeal at Nyeri (W. Karanja, Jamila Mohammed and L. Kimaru, JJA), the appellant argued that the High Court failed to re-evaluate the evidence, that the testimony was insufficient and contradictory, that his alibi was disregarded, that his rights to legal representation and to life under Articles 50 and 26 were violated, and that the mandatory death sentence was unconstitutional. The Court reiterated that its jurisdiction on second appeal is confined by section 361 of the Criminal Procedure Code to matters of law. It found the identification evidence of five eyewitnesses, given in broad daylight and corroborated by ballistics examination of the recovered M-16 rifle, strong and consistent; the alibi was properly rejected as contradicted by direct evidence. Applying Republic v Karisa Chengo, it held that the absence of counsel did not occasion substantial injustice since the appellant actively participated in his trial. On sentence, following the Supreme Court's Muruatetu Directions of 2021 and Republic v Mwangi (ISLA), the Court held that Muruatetu does not apply to mandatory death sentences for robbery with violence absent a properly argued constitutional challenge, and declined to interfere. The appeal was dismissed in its entirety.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the conviction of the appellant was safe in law
  2. 2.Whether the appellant's constitutional rights (legal representation under Article 50) were violated
  3. 3.Whether the death sentence was lawfully and proportionately imposed

Key legal issues

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01

Sufficiency and reliability of identification and conviction evidence on second appeal

Holding

Concurrent findings on identification and conviction were safe; all elements of robbery with violence were present and corroborated by recovery of a functional firearm

Reasoning

Five eyewitnesses identified the appellant in broad daylight as the armed robber; their accounts were corroborated by ballistics confirmation of the recovered M-16 rifle and by the appellant's apprehension at the scene. No misdirection, ignored material evidence or plainly wrong conclusion was demonstrated, so the Court would not interfere under its restricted second-appeal mandate.

p. 4
02

Alibi defence

Holding

Rejection of the alibi was legally sound; the prosecution dislodged it with direct and credible testimony under favourable identification conditions

Reasoning

While an accused bears no burden to prove an alibi and the prosecution must disprove it, courts must weigh the alibi against the totality of the prosecution evidence. Here several witnesses gave direct, credible and consistent testimony under favourable conditions of identification, contradicting the appellant's account of grazing cattle, making rejection of the alibi legally sound.

p. 4
03

Right to legal representation at State expense under Article 50(2)(h)

Holding

No violation established; the appellant was informed of the right, participated fully, and no substantial injustice resulted

Reasoning

Article 50(2)(h) entitles an accused to assigned counsel where substantial injustice would otherwise result. The trial court informed the appellant of his right; he cross-examined witnesses and called a defence witness. Applying the Karisa Chengo factors, no substantial injustice was demonstrated, so the absence of counsel was not fatal to the trial's fairness.

p. 6
04

Mandatory death sentence for robbery with violence

Holding

The Court could not interfere; Muruatetu does not apply to robbery with violence absent a properly argued constitutional challenge

Reasoning

Section 296(2) of the Penal Code prescribes death for robbery with violence. Although the Court has previously varied such sentences following Muruatetu, the Supreme Court's 2021 Directions confined Muruatetu to murder under sections 203 and 204, and Republic v Mwangi (ISLA) directed that challenges to the mandatory death penalty for other capital offences be properly filed and argued before the High Court.

p. 6

Legal principles established

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  • The Court of Appeal's mandate in a second appeal is confined to matters of law; it will not interfere with concurrent findings of fact unless the courts below misdirected themselves, considered irrelevant factors, failed to consider material evidence, or reached plainly wrong conclusions
  • An accused bears no burden to prove his alibi; the prosecution must disprove it, but courts must weigh the alibi against the totality of the prosecution evidence
  • Absence of legal representation is not in itself fatal unless substantial injustice is demonstrated
  • Muruatetu applies only to mandatory sentences for murder under sections 203 and 204 of the Penal Code and not to other capital offences such as robbery with violence

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.Conviction and sentence (death) imposed by the trial court and upheld by the High Court stand

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Meru
Meru Criminal Appeal No. 54 of 2015
Jurisdiction invoked
Second appeal under section 361 of the Criminal Procedure Code (matters of law only)

Relief refused

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Quashing of conviction

Conviction rested on firm evidential ground; identification evidence strong, consistent and corroborated

p. 4

Setting aside of the death sentence

Muruatetu does not apply to robbery with violence; a challenge to the mandatory death penalty for such offences must be properly filed and argued before the High Court

p. 6

Claim of violation of right to legal representation

Appellant was informed of his right, actively cross-examined witnesses and called a defence witness; no substantial injustice shown

p. 6

Costs

No costs order recorded in the judgment.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The mandate of this Court in a second appeal is restricted by section 361 of the Criminal Procedure Code to matters of law only.
p. 3Scope of second appeal
the law is that an accused bears no burden to prove his alibi; rather, the prosecution must disprove it
p. 4Alibi - burden of proof
the absence of such representation is not in itself fatal, unless it can be demonstrated that substantial injustice was occasioned
p. 6Right to legal representation
Muruatetu as it now stands cannot directly be applicable to those cases.
p. 6Muruatetu and mandatory death penalty for robbery with violence
This appeal is therefore devoid of any merit and is hereby dismissed in its entirety.
p. 6Disposition

Issues in the judgment

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minor

The judgment does not state the case number of this second appeal; only the first appeal (Meru Criminal Appeal No. 54 of 2015) is identified.

minor

The judgment recites that injuries were sustained but not grievous, yet upholds the mandatory death sentence; the Court acknowledged this tension but deferred to the Supreme Court's directions on Muruatetu.

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, "Lemarleni v Republic (Criminal Appeal 14 of 2018) [2025] KECA 2154 (KLR)", Case Analysis (2025). Nyeri Criminal Appeal (not specified in judgment; on appeal from Meru Criminal Appeal No. 54 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2154/eng@2025-12-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.