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Court of AppealDismissedCriminal Appeal 74 of 2020· [2025] KECA 2276 (KLR)

Anyere v Republic

Court of Appeal
19 December 2025
ASASIKE-MAKHANDIAHOHA OMONDILKLK KIMARU
1,527 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that the death penalty remains the mandatory sentence for robbery with violence, despite the Muruatetu decision.

What this practically means

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Executive summary

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This is a second appeal against sentence only. The appellant was convicted by the Principal Magistrate's Court at Butali on two counts of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death on both counts, the sentence on count II being held in abeyance. The High Court at Kakamega (Sitati & Mwangi, JJ.) re-evaluated the evidence and dismissed the first appeal, affirming both conviction and sentence. Before the Court of Appeal at Kisumu, the appellant relied on Muruatetu 1, contending that the mandatory death sentence was unconstitutional, denied him the opportunity to mitigate, and violated Article 29 of the Constitution; he urged the Court to apply the Judiciary Sentencing Policy Guidelines (2016) and interfere with the sentence. The respondent, citing Muruatetu 2 (the Supreme Court's 2021 Directions), submitted that the declaration of unconstitutionality applies only to the mandatory death sentence for murder under section 204, that the death penalty for robbery with violence remains lawful, and that the courts below exercised discretion after hearing mitigation. The Court framed a single issue: whether the sentence was lawful. Holding that Muruatetu 2 confined the unconstitutionality ruling to murder cases and that the death penalty under section 296(2) remains the only sentence prescribed in law, the Court found no error of law in the concurrent findings on sentence, upheld the death sentence, and dismissed the appeal. The judgment binds subordinate courts on the continued legality of the death sentence for robbery with violence following Muruatetu 2.

Key legal issues

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Whether the death sentence for robbery with violence under section 296(2) of the Penal Code was lawful after Muruatetu

Holding

The sentence was lawful. Muruatetu 2 confined the unconstitutionality of the mandatory death sentence to murder under section 204; the death penalty for robbery with violence remains prescribed, so the trial court and High Court imposed the only lawful sentence and this Court cannot interfere.

Reasoning

The Court relied on the Supreme Court's directions in Muruatetu 2, which clarified that the 2017 declaration struck down only the mandatory death sentence under section 204 (murder). It did not disturb the validity of the death sentence under article 26(3) of the Constitution or its prescription for other capital offences such as robbery with violence under section 296(2). Accordingly there was no error of law in the concurrent findings on sentence.

p. 3

Legal principles established

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  • On a second appeal, the Court of Appeal's jurisdiction is confined to matters of law only under section 361(1)(a) of the Criminal Procedure Code, and it will not interfere with concurrent findings of the two courts below absent error of law.
  • Following Muruatetu 2, the declaration of unconstitutionality of the mandatory death sentence applies only to murder under section 204 of the Penal Code; the death penalty for robbery with violence under section 296(2) remains lawful and an appellate court has no jurisdiction to interfere with a sentence imposed under it.

Court orders

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  1. 1.Appeal against sentence dismissed
  2. 2.Death sentence imposed under section 296(2) of the Penal Code upheld
On appeal from
High Court of Kenya at Kakamega
HCCRA No. 166 of 2014
Jurisdiction invoked
Section 361(1)(a) of the Criminal Procedure Code - second appeal on matters of law only

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, "Anyere v Republic", Case Analysis (2025). Criminal Appeal 74 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2276/eng@2025-12-19

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